Oct 31, 2014

LAW & MOTION TENTATIVE RULINGS

TUESDAY, OCTOBER 28, 2014 - 8:30 a.m.

COURTROOM 19 –Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call CourtCall directly at (888) 882-6878.

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, OCTOBER 27, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  MCV-162615 Shaffer v. Fraser:

            The motion is denied.   Defendant Eric Fraser knew of and fully participated in all of the proceedings that led to the judgment in this action. He was not prevented from taking part in or litigating any of the issues presented. He has not shown and cannot show any acts that hindered his ability to participate in a meaningful manner in this litigation.

Plaintiff’s assignee’s request for judicial notice is granted.

Defendant’s claim of extrinsic fraud fails.  

 

2.  SCV-241055 Teuma v. Martin:

            The hearings on the motions shall be continued to the Law and Motion Calendar on Tuesday, November 25, 2014 at 8:30am in Department 19.

           

3.  SCV-247383 Molinaro v. The Moore Building:

            Attorney Provencher’s Motion to be Relieved as Counsel of Defendant The Moore Building, LLC is Granted.

           

4.  SCV-250892 Cropsey v. Ensign:

            This is on calendar for the Plaintiff’s motion for attorney fees. This is also on calendar for the Defendant’s motion to tax costs which was continued from September 2, 2014.

Plaintiff’s Motion for Attorney Fees

The Plaintiff’s motion for attorney fees seeks an award of $1,543,450.00. The motion details the time and efforts of four attorneys who staffed this case on behalf of the Plaintiff, their respective hours spent on the case were: (1) Joan Herrington, 1010.9 hours; (2) Steven Derby, 287.3 hours; (3) Dolores Victor, 613.8 hours; and (4) Judy McCann, 49.3 hours. Further, the Plaintiff’s attorneys seeks hourly rates as follows: (1) Joan Herrington, $450.00 per hour; (2) Steven Derby, $500.00 per hour; (3) Dolores Victor, $250.00 per hour; and (4) Judy McCann, $400.00 per hour. The Plaintiff’s attorneys’ request also seeks a 2.0 multiplier.

The Defendant opposes the motion, arguing that the fees sought are unreasonable, and that the total number of hours should not exceed 1,000. Further, the Defendant contends that Ms. Victor’s hourly rate should remain at $250.00, and Ms. Herrington and Mr. Derby’s hourly rate should be capped at $325.00. The Defendants argues that Ms. McCann’s request should be denied outright.

The respective requests for judicial notice are granted.

The Plaintiff’s entitlement to reasonable attorney fees is a statutory right under the FEHA. Therefore, the analysis centers on the reasonability of the Plaintiff’s request—which in turn centers on fixing the lodestar number. GC § 12965(b) provides, in pertinent part: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.” (See also Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440.) Serrano III requires the trial court to first determine a “touchstone” or “lodestar” figure based on a “careful compilation of the time spent and reasonable hourly compensation for each attorney ... involved in the presentation of the case.” (Serrano v. Priest (1971) 20 Cal.3d 25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 625 (“Serrano IV”).) That figure may then be increased or reduced by the application of a “multiplier” after the trial court has considered other factors concerning the lawsuit.

Here, Plaintiff’s attorneys are seeking hourly rates as follows: (1) Joan Herrington, $450.00 per hour; (2) Steven Derby, $500.00 per hour; (3) Dolores Victor, $250.00 per hour; and (4) Judy McCann, $400.00 per hour. Counsel's own billing rates carry some weight of reasonableness. (See, e.g., Russell v Foglio (2008) 160 Cal.App.4th 653, 661.)   Plaintiff’s attorneys have submitted evidence of their hourly rates, i.e. their own declarations. The Plaintiff also provides  additional declarations supporting the hourly rates claimed. (See Dec. Thuesen; Dec. Costin; Dec. Horowitz; Dec. Pearl; Dec. Rein.)

The Defendants offer argument, but little evidence to support their contention that the hourly rates are unreasonable. (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620.) That being said, this court is often called upon to determine reasonable hourly rates of attorneys who appear in front of it. To determine reasonable market value, courts must determine whether the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” ( Children’s Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.) The court is persuaded that Ms. Herrington’s sought after rate of $450.00 per hour is too high, as is Mr. Derby’s request for $500.00 per hour. The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. ( Ketchum v Moses (2001) 24 Cal.4th 1122; PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, 1094.) To determine reasonable market value, courts must determine whether the requested rates are "within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work." ( Children's Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.)

Here, Ms. Herrington’s representation of the Plaintiff warrants a significantly lower hourly rate. Ms. Herrington’s motion, pre-trial, and post-trial arguments were often not on point, and quite difficult to follow; certainly not representative of a $450.00 hourly rate. Further, her presentation of the case was inefficient, necessitating continuances, but for co-counsel Mr. Derby, the court is not convinced that the Plaintiff would have obtained the result she did at trial. Moreover, $400.00 hourly rate is above what her experience would warrant in Sonoma County. Accordingly, the court finds that Ms. Herrington’s reasonable hourly rate is $325.00.

As for Mr. Derby, his representation of the Plaintiff was competent and efficient. That being said, a rate of $500.00 exceeds the rate in this community. Accordingly, the court finds that Mr. Derby’s reasonable hourly rate is $400.00.

As for Ms. McCann, her participation in the case seems superfluous. The Plaintiff was represented by two attorneys at trial—a third trial counsel was, from the court’s point of view, unnecessary to the outcome of the trial. Further, the time entries submitted by Ms. McCann do not involve “attorney work” but rather would fall into the realm of a paralegal or law clerk. With two experienced plaintiff’s attorneys dealing with an uncomplicated disability discrimination case, Ms. McCann’s participation was unnecessary, and her billing rate of $400.00 unreasonable. For the work performed by Ms. McCann an hourly rate of $150.00 is more appropriate—if allowed at all.

Ms. Victor’s claimed hourly rate of $250.00 is reasonable.

Number of Hours

Here, the attorneys seek approximately 1,961.3 hours among the four attorneys. This number of hours claimed by the Plaintiff’s attorneys for this straightforward case is patently unreasonable.

In Serrano v Unruh (Serrano IV) [(1982) 32 Cal.3d 621, 639] the court held that prevailing counsel are entitled to compensation for all hours reasonably spent: "[A]bsent circumstances rendering the award unjust, fees recoverable … ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim." (See also Center for Biological Diversity, supra, 185 Cal.App.4th at 897 ("absent 'circumstances rendering the award unjust, an … award should ordinarily include compensation for all the hours reasonably spent.' "); Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446(same).)  Note further hat courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. (See, e.g., PLCM Group, supra, 22 Cal.4th at 1095 n4.)

From the outset, the court will not allow the time submitted by Ms. McCann. Having a third attorney at trial sitting in the public gallery billing time was unnecessary, and is unreasonable. This case was not so complex as to require three trial attorneys.

The court has reviewed the time records provided by Ms. Victor. The records attached to her declaration are difficult to decipher. The records often fail to indicate the date the work was performed or how much time was spent on each task. In light of the dearth of evidence, and the fact that there were two other attorneys working on the file (with another attorney at trial), the court will reduce the hours sought by Ms. Victor to 300.

Further, the court has reviewed the time records submitted by Ms. Herrington in support of her application for 1010.9 hours. While Ms. Herrington’s records are more clear that Ms. Victor’s, they evidence duplication of effort with the other attorneys of record. Further the number of hours seems excessive given the lack of complexity of the case. Accordingly, the court will reduce the number of hours sought by Ms. Herrington to 600.

The court has reviewed the number of hours sought by Mr. Derby, and finds that the number is reasonable at 287.3.

As a result, the lodestar attorney fees are as follows: (1) Ms. Herrington $325 x 600 = $195,000; (2) Ms. Victor $250 x 300 = $75,000; (3) Mr. Derby $400 x 287.3 = $114,920; and (4) Ms. McCann $150 x 0 = 0.

Plaintiff’s attorneys seek a 2x multiplier in addition to the lodestar award.  Basically, when a party seeks an “enhancement” they have the burden of proof to establish entitlement. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) In PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, the court recited several factors trial courts may consider, several of which overlap the Serrano III factors: "the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." (22 Cal.4th at 1096, citing Melnyk v Robledo (1976) 64 CA3d 618, 623.) Nothing about this case calls for a significant multiplier above and beyond the reasonable attorney fees calculated under the Lodestar. The court believes a modest 10% increase is reasonable given the contingent nature of the representation and the risks that engenders.

Accordingly, the Plaintiff is awarded $384,920 plus $38,492 for a total award of $423,412 in statutory attorney fees. The Plaintiff shall draft an order consistent with this ruling.

Tax Costs

The court has reviewed the Defendant’s motion to tax the Plaintiff’s costs and opposition thereto. The Plaintiff concedes that she is not entitled to $1,745.35 in costs. In addition, the court will grant the motion to tax as to the following items: (1) $2,500 in mediator fees; (2) $794.47 in video editing costs; and $108 for court call fees. The balance of the Defendant’s motion is denied.

The Defendant shall draft an order consistent with this ruling.

 

5.  SCV-251934 Kottre v. Ford:

            This is on calendar for Plaintiff’s motion for attorneys’ fees and costs. The Plaintiff seeks $145,087.50 in attorney fees, and $19,174.37 in litigation costs. The motion is opposed.

From the outset, the court will deny the Plaintiff’s request for costs without prejudice. The court notes that there is a pending motion to tax costs that were claimed in the Plaintiffs’ memorandum of costs. The hearing on taxing costs is set for November 12, 2014.

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.... The reasonable hourly rate is that prevailing in the community for similar work.” ( PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; see also City of Santa Rosa v. Patel (2010) 191 Cal.App.4th 65.)

Plaintiffs’ counsel is seeking $145,087.50 in attorney fees for the work he performed on behalf of the Plaintiffs.  Further, he seeks $19,174.37 in litigation costs.  Counsel claims fees as follows: (1) Michael Rosenstein, 88.5 hours at $450.00 per hour; (2) Roger Kirnos, 181.5 hours at $250.00 per hour; and (3) O’Connor & Mikhov, 190.7 hours at the following rates Mr. Mikhov at $400.00 per hour, Mr. O’Connor at $500.00, Ms. Ungs $225.00; Ms. Ortiz at $200.00, Ms. Levin at $300.00 per hour, Mr. Coolidge at $400.00. Notably, the O’Connor firm does not provide a breakdown of each of the attorneys’ time spent on the matter, but instead provides a 31 page billing statement which intersperses the attorneys’ tasks together.

Ford has failed to rebut the reasonableness of the hourly rates. (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620 .) That being said, the hourly rates are high for Sonoma County and should be reduced accordingly. To that end, the court will reduce the hourly rate of Mr. Rosenstein to $400.00, Mr. Mikhov and Mr. Coolidge to $350.00, Mr. O’Connor to $400.00, and Mr. Kirnos to $225.00.

Ford contends that the number of hours submitted by Plaintiff’s counsel is unreasonable. Ford argues that the Plaintiff’s rejection of its initial pre-trial offer should freeze fees at that point. (Citing Meister v. Regents of University of California (1998) 67 Cal.App.4th 437 [holding that that the hours defendants' attorneys expended after the 1993 oral settlement offer were not reasonable].)

Here, the parties were engaged in contentious litigation that went to the first day of trial. While there were settlement offers back and forth, nothing suggests that those settlement offers should cut off the Plaintiffs’ right to attorney fees. In fact, Meister has been not been followed in this district on the point forwarded by Ford. (See Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418.) In Greene the court said: “We respectfully disagree with the court's reasoning in Meister. Section 998 is a cost-shifting statute that encourages settlement by providing a strong financial disincentive to a party who refuses a reasonable settlement offer…. In sum, while we agree with the Meister court to the extent it recognized that the trial court has discretion to determine whether fees were reasonably spent, we decline to follow its holding that a trial court can consider an informal settlement offer in making that determination. The trial court here properly rejected Dillingham's request to reduce Greene's award by the amount of the post[-]offer fees.” (Id.  at 425-426.)The same analysis pertains here; Ford’s settlement offers did not stop the fees at the time of the offer. Nothing in the submitted number of hours seems unreasonable for the instant litigation. Ford’s argument that the hours increased significantly prior to trial is not surprising—cases going to trial require a significant amount of preparation.

Accordingly, the court will allow the attorney fees as follows: (1) Michael Rosenstein, 88.5 hours at $400.00 per hour; (2) Roger Kirnos, 181.5 hours at $225.00 per hour; and (3) O’Connor & Mikhov, 190.7 hours at the following rates Mr. Mikhov at $350.00 per hour, Mr. O’Connor at $400.00, Ms. Ungs $225.00; Ms. Ortiz at $200.00, Ms. Levin at $300.00 per hour, Mr. Coolidge at $350.00. The O’Connor firm shall provide a breakdown of each of the attorneys’ time spent on the matter based on the invoice previously provided in support of the instant motion—which shall be presented to opposing counsel prior to the hearing on this matter, and to the court at the hearing.

The Plaintiff shall draft an order consistent with this ruling.

 

6.  SCV-254796 Sarmiento v. Sexton:

            Attorney Nazarian’s Motion to be Relieved as Counsel is Granted.

7.  SCV-254921 Clark v. Perry:

             This is on calendar for two discovery motions. The Defendants have brought a motion to have requests for admissions deemed admitted. The Plaintiffs have brought a motion for a protective order. Both motions are opposed.  Mr. David C. King, Esq. was appointed as a discovery facilitator, who filed a report with the court. The court thanks Mr. King for his assistance.

Motion to Deem Admissions Admitted

When the Plaintiffs served responses to the Defendants’ requests for admissions they failed to provide verification. Instead, the Plaintiffs provided the Defendants a document indicating that verifications were to follow. In response, the Defendants filed the instant motion. It appears that after receiving the motion, the Plaintiffs provided the Defendants verifications. The provision of the verifications moots the merits of the Defendants’ motion, leaving only the issue of sanctions; the Defendants seek $1,890 in sanctions.

Here, while the Plaintiffs have provided verifications, the statute requires that the court issue a sanction. (CCP § 2033.280(c).) While common professional courtesy dictates that counsel should have attempted an informal resolution to this relatively simple discovery dispute, the Discovery Act (and case law) does not require such an attempt. (See St. Mary v. Sup.Ct. (Schellenberg) (2014) 223 Cal.App.4th 762, 777–778; and Allen-Pacific, Ltd. v. Sup.Ct. (Chan) (1997) 57 Cal.App.4th 1546, 1551 disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12.) The Defendants were within their rights to file the motion without first picking up the telephone, or writing a letter.

That being said, the Defendants are awarded $390 in sanctions (basically, a failure to mitigate damages), the balance of the motion is denied as moot. The Defendants shall draft an order consistent with this ruling.

Motion for Protective Order

The Plaintiffs have filed a motion for a protective order. In essence, the motion seeks an order “striking all duplicative discovery propounded on behalf of both defendants and only requiring plaintiffs to respond only [sic] to unique discovery requests propounded on behalf of BOTH defendants.” (Plaintiffs’ MPA 10:13-16 [emphasis and underlining in original].) The Plaintiffs further seek a discovery sanction of $7,060. The Defendants oppose the motion, arguing that the Plaintiffs are not entitled to a protective order to discovery to which they have already provided a response.

Here, the Plaintiffs provide no controlling legal authority for their position that the court may strike discovery that has already been responded to. Further, the court is unaware of any authority that would allow it to make a blanket order which would relieve the Plaintiffs from responding to discovery that has yet to be propounded.  It seems that this motion was made out of frustration with the volume of discovery propounded by the Defendants—in that the Defendants propounded duplicate demands on each of the Plaintiffs on behalf of each Defendant. Since the Plaintiffs have responded to the discovery, there simply are no grounds (or substantial justification) for a protective order.

Accordingly, the Plaintiffs’ motion is denied, and the Defendants are entitled to discovery sanctions in the amount of $600. The Defendants shall draft an order consistent with this ruling.

 

8.  SCV-256065 Gest v. Green Tree:

            The hearing in this matter has been continued to the Law and Motion calendar on February 3, 2015 at 8:30am in Department 19, per stipulation of the parties.

9.  SPR-86741 Matter of Constance Doolittle Trust:

            Upon the agreement of the parties, this matter is continued to the Law and Motion calendar on January 13, 2015 at 8:30am in Department 19.

 

10.  MCV-187411Resurgence Financial v. Meza:

Judgment debtor is to appear and produce all income and expense documents for the calendar year of 2014.

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