CLARENCE THOMAS VS WESLEY WAGONER,, JR.

Tentative Rulings

Case Number: 17STLC00775    Hearing Date: December 23, 2019    Dept: 94

MOTION FOR ATTORNEYS’ FEES AND COSTS

(CCP §§ 1032, 1033.5; Civil Code §§ 51, 52, 54.3, 55)

TENTATIVE RULING:

Plaintiff Sergio Pina’s Motion for Attorneys’ Fees is GRANTED IN THE AMOUNT OF $3,420.00.

ANALYSIS:

Plaintiff Sergio Pina (“Plaintiff”) filed the instant action for violation of Cal. Civil Code section 51 against Defendant Alfonso Alvarez Martinez As Trustee Of The Alfonso Alvarez Martinez Living Trust (“Defendant”) on August 25, 2017. The matter was scheduled for trial on June 28, 2019 and continued to August 12, 2019 at Plaintiff’s request. When Defendant failed to appear for trial, the court entered judgment in Plaintiff’s favor. Plaintiff timely filed the instant motion for attorneys’ fees on August 19, 2019. (See Cal. Rules of Court, Rules 3.1702; 8.822.) Plaintiff moves for attorneys’ fees pursuant to Civil Code section 52, subdivision (a).

Discussion

Civil Code section 52 provides for recovery of attorneys’ fees to a prevailing plaintiff in an action brought under that statute. It is undisputed that Plaintiff is the prevailing party in this action, as the party in whose favor judgment was entered following trial on August 12, 2019. (Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, Plaintiff is entitled to recover attorneys’ fees for the prosecution of this action. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 (holding that contractual or statutory authorization for the recovery of attorneys’ fees includes authorization for recovery of attorneys’ fees incurred on appeal.)

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id., at p. 48, fn. 23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” [Internal citations and internal quotation marks omitted.]

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including 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. [Citations.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

No specific findings reflecting the court’s calculations are required. The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach. The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided, and the starting point for this determination is the attorney’s time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].) However, California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.) An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court. (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)

Plaintiff’s attorney, Morse Mehrban, provides a breakdown of the time spent on this action, which includes initial research, drafting the Complaint, preparing for and attending trial two times, and preparing for and attending the instant motion for attorneys’ fees. (Id. at ¶3.) In total, Plaintiff’s attorney states he billed 13.4 hours on this action. (Ibid.) The Court notes that Plaintiff’s attorney contends that trial date on June 28, 2019 was “continued because Defendant did not appear.” (Ibid.) The Court’s minute order, however, reflects that trial was continued “pursuant to the request of plaintiff.” (Minute Order, dated 6/28/19.) Plaintiff was the cause for the additional time needed to reappear for trial and has not demonstrated that the continuance was reasonably necessary. Therefore, the Court reduces the hours billed by two (2) hours, to 11.4 hours.

Plaintiff’s counsel also submits a declaration stating that he has been practicing since 1993 and bills at $475.00 an hour. (Motion, Morse Decl., ¶5.) The court finds this hourly rate to be excessive. While it is true that Plaintiff’s attorney has more than 25 years of experience as an attorney, he offers no evidence other than his own conclusory declaration that such a rate is “consistent with those of other attorneys with similar experience, both nationally and in Southern California.” (Id. at ¶5.) Furthermore, in limited jurisdiction cases the rate of other attorneys is typically lower given the simplicity of the issues and the lower value of the cases. Here, Plaintiff sought damages of only $4,000.00 and prosecuted the action against a pro per Defendant who did not appear for trial. Nor does Plaintiff point to any unusual legal or factual questions in the action that would warrant such a high hourly rate.

The Court acknowledges the case law cited by Plaintiff regarding the importance of awarding all attorneys’ fees reasonably expended in a consumer protection action that awards attorneys’ fees to the prevailing party. Plaintiff is correct that attorneys’ fees should not awarded in proportion to the judgment. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 164.) However, “ ‘a reasonable hourly rate is the product of a multiplicity of factors .... the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case.’ ” (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 272 (citing Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1003-1004).) Plaintiff, in providing evidence only as to the years of experience of his attorney, has not addressed all the factors that go into a determination of the hourly rate. Without evidence of these other facts, Plaintiff has not demonstrated the reasonableness of awarding $475.00 per hour for this case. The Court finds, therefore, that the reasonable hourly rate in this matter is $300.00. Based on the reasonable foregoing rate ($300.00) and number of hours billed (11.4), Plaintiff is entitled to recover $3,420.00 in attorneys’ fees against Defendant.

Plaintiff Sergio Pina’s Motion for Attorneys’ Fees is GRANTED IN THE AMOUNT OF $3,420.00.

Moving party to give notice.

Case Number: 17STLC00775    Hearing Date: November 18, 2019    Dept: 94

Thomas v. Wagoner, Jr., et al.

MOTION FOR ATTORNEYS’ FEES AND COSTS

(CCP §§ 1032, 1033.5; Civil Code §§ 51, 52, 54.3, 55)

TENTATIVE RULING:

Plaintiff Clarence Thomas’ Motion for Attorneys’ Fees is GRANTED IN THE AMOUNT OF $5,220.00.

ANALYSIS:

Plaintiff Clarence Thomas (“Plaintiff”) filed the instant action for violation of section 51(f) of the Americans with Disabilities Act (ADA) against Defendants Wesley Wagoner, Jr. (“Defendant”) and Arore B. Wagoner (“Arore”) on August 25, 2017. Arore was dismissed by Plaintiff on September 27, 2017. Trial in this matter was initially scheduled for February 22, 2019, and twice continued due to Defendant’s non-appearance. When Defendant again failed to appear for trial, the court entered judgment in Plaintiff’s favor on July 15, 2019. Plaintiff timely filed the instant motion for attorneys’ fees on July 18, 2019. (See Cal. Rules of Court, Rules 3.1702; 8.822.) Plaintiff moves for attorneys’ fees pursuant to Civil Code section 52, subdivision (a).

Legal Standard

Civil Code section 52 provides for recovery of attorneys’ fees to a prevailing plaintiff in an action brought under that statute. Accordingly, they are entitled to recover attorneys’ fees for the full prosecution of this action. (See Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 (holding that contractual or statutory authorization for the recovery of attorneys’ fees includes authorization for recovery of attorneys’ fees incurred on appeal.)

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id., at p. 48, fn. 23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” [Internal citations and internal quotation marks omitted.]

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including 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. [Citations.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

No specific findings reflecting the court’s calculations are required. The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach. The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].) However, California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.) An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court. (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)

Discussion

It is undisputed that Plaintiff is the prevailing party in this action, as the party in whose favor judgment was entered. (Code Civ. Proc., § 1032, subd. (a)(4).) Plaintiff’s attorney, Morse Mehrban, submits a declaration stating that he has been practicing since 1993 and bills at $475.00 an hour. (Motion, Morse Decl., ¶¶3-5.) The court finds this hourly rate to be excessive. While it is true that Plaintiff’s attorney has more than 25 years of experience as an attorney, he offers no evidence other than his own conclusory declaration that such a rate is “consistent with those of other attorneys with similar experience, both nationally and in Southern California.” (Id. at ¶5.) In limited jurisdiction cases the rate of other attorneys is typically lower given the simplicity of the issues and the lower value of the cases. Indeed, here, Plaintiff sought damages of only $4,000.00 and prosecuted the action against a pro per Defendant who did not appear for trial. Nor does Plaintiff point to any unusual legal or factual questions in the action that would warrant such a high hourly rate. The Court finds, therefore, that the reasonable hourly rate in this matter is $300.00.

Plaintiff’s attorney provides a breakdown of the time spent on this action, which includes preparing for and attending the Early Evaluation Conference, preparing for and attending trial three times, and preparing for and attending the instant motion for attorneys’ fees. (Id. at ¶3.) In total, Plaintiff’s attorney states he billed 17.4 hours on this action, which appears reasonable. (Ibid.)

Based on the foregoing rate and number of hours billed, Plaintiff is entitled to recover $5,220.00 in attorneys’ fees against Defendant. Plaintiff Clarence Thomas’ Motion for Attorneys’ Fees is GRANTED IN THE AMOUNT OF $5,220.00.

Plaintiff to give notice.