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This case was last updated from Los Angeles County Superior Courts on 08/02/2019 at 13:44:27 (UTC).

JOHN DOE VS AINSLEY CAREY ET AL

Case Summary

On 05/12/2015 JOHN DOE filed an Other - Writ Of Mandamus lawsuit against AINSLEY CAREY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JOANNE O'DONNELL, ROBERT H. O'BRIEN, MARY H. STROBEL, LUIS A. LAVIN, JAMES C. CHALFANT, STEVEN J. KLEIFIELD, ROBERT B. BROADBELT and SAMANTHA JESSNER. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5312

  • Filing Date:

    05/12/2015

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOANNE O'DONNELL

ROBERT H. O'BRIEN

MARY H. STROBEL

LUIS A. LAVIN

JAMES C. CHALFANT

STEVEN J. KLEIFIELD

ROBERT B. BROADBELT

SAMANTHA JESSNER

 

Party Details

Plaintiff and Petitioner

DOE JOHN

Defendants and Respondents

CAREY AINSLEY

D. ED

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WERKSMAN JACKSON HATHAWAY & QUINN LLP

HATHAWAY MARK M. ESQ.

Defendant and Respondent Attorneys

HAHN ADRIENNE R. ESQ.

YOUNG ZINN & BATE LLP

YOUNG JULIE ARIAS ESQ.

 

Court Documents

Certificate of Mailing for

1/14/2019: Certificate of Mailing for

Notice of Status Conference and Order

3/21/2019: Notice of Status Conference and Order

Minute Order

4/30/2019: Minute Order

Notice of Motion

4/30/2019: Notice of Motion

EX PARTE APPLICATION FOR STAY OF OPERATION OF ADMINISTRATIVE ACTION; MEMORANDUM; DECLARATIONS; EXHIBITS

6/1/2015: EX PARTE APPLICATION FOR STAY OF OPERATION OF ADMINISTRATIVE ACTION; MEMORANDUM; DECLARATIONS; EXHIBITS

NOTICE OF RESCHEDULED TRIAL SETTING CONFERENCE

6/4/2015: NOTICE OF RESCHEDULED TRIAL SETTING CONFERENCE

NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

6/22/2015: NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

RESPONDENT'S REQUEST TO VACATE JULY 30, 2015 HEARING DATE SPECIALLY SET FOR PETITIONER'S UNFILED MOTION TO STAY

7/17/2015: RESPONDENT'S REQUEST TO VACATE JULY 30, 2015 HEARING DATE SPECIALLY SET FOR PETITIONER'S UNFILED MOTION TO STAY

Minute Order

7/30/2015: Minute Order

PROOF OF SERVICE OF NOTICE OF CASE REASSIGNMENT

10/13/2015: PROOF OF SERVICE OF NOTICE OF CASE REASSIGNMENT

PEREMPTORY CHALLENGE TO JUDICIAL OFFICER

11/10/2015: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER

NOTICE OF TRIAL SETTING CONFERENCE

12/7/2015: NOTICE OF TRIAL SETTING CONFERENCE

Minute Order

12/17/2015: Minute Order

OPPOSITION TO MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM

1/14/2016: OPPOSITION TO MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM

REPLY TO OPPOSITION TO MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM

1/21/2016: REPLY TO OPPOSITION TO MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

6/9/2016: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Minute Order

1/11/2017: Minute Order

NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL

7/11/2017: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL

98 More Documents Available

 

Docket Entries

  • 07/08/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Order to Show Cause Re: (Entry of Judgment Granting Petition for Writ of Administrative Mandate) - Held

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  • 07/08/2019
  • Minute Order ( (Order to Show Cause Re: Entry of Judgment Granting Petition f...)); Filed by Clerk

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  • 05/29/2019
  • Response (to Respondent's Objections to Petitioner's Proposed Judgment); Filed by John Doe (Plaintiff)

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  • 05/23/2019
  • Objection (To Petitioner's [Proposed] Judgment Granting Petition For Writ of Admin. Mandate & [Proposed] Peremptory Writ); Filed by Ainsley Carey (Defendant)

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  • 05/23/2019
  • Declaration (of Karen J. Pazzani ISO Respondent's Objections to Petitioner's [Proposed] Judgment Granting Petition For Writ of Admin. Mandate & [Proposed] Peremptory Writ); Filed by Ainsley Carey (Defendant)

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  • 05/16/2019
  • Memorandum of Costs (Summary); Filed by John Doe (Plaintiff)

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  • 05/03/2019
  • Notice (of Order Following Status Conference); Filed by John Doe (Plaintiff)

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  • 04/30/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Status Conference - Held

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  • 04/30/2019
  • Notice of Motion (FOR ATTORNEYS' FEES); Filed by John Doe (Plaintiff)

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  • 04/30/2019
  • Minute Order ( (Status Conference;)); Filed by Clerk

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218 More Docket Entries
  • 05/18/2015
  • NOTICE OF MOTION AND MOTION FOR STAY OF ADMINISTRATIVE DECISION PENDING COURT REVIEW; DECLARATION

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  • 05/18/2015
  • Motion for an Order; Filed by Petitioner

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  • 05/18/2015
  • Notice; Filed by Petitioner

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  • 05/18/2015
  • Amended Petition; Filed by Petitioner

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  • 05/14/2015
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 05/14/2015
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 05/14/2015
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 05/12/2015
  • SUMMONS ON PETITION

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  • 05/12/2015
  • PETITION FOR WRIT OF ADMTNISTRATIVE MANDATE; VERIFICATION

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  • 05/12/2015
  • Petition; Filed by null

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Tentative Rulings

Case Number: BS155312    Hearing Date: July 16, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

John Doe ,

Petitioner,

vs.

Ainsley Carry

Respondent.

Case No.:

BS155312

Hearing Date:

July 16, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

Petitioner’s MOTION For order awarding ATTORNEY’S FEES

MOVING PARTY: Petitioner John Doe

RESPONDING PARTY: Respondent Ainsley Carry, Ed.D., in his official capacity as Vice Provost for Student Affairs, for the University of California

Petitioner’s Motion for Order Awarding Attorney’s Fees

The court considered the moving, opposition, and reply papers.

On November 19, 2019, Petitioner filed a supplemental declaration regarding Petitioner’s counsel’s billing rates. On February 7, 2020, Respondent filed objections to Petitioner’s evidence in support of Petitioner’s motion. On February 18, 2020, Petitioner filed a response to Respondent’s objections.

The court notes that Petitioner’s supplemental declaration and Respondent’s evidentiary objections were not submitted in order to raise any new points or arguments. Therefore, the court exercises its discretion to consider Petitioner’s supplemental declaration and Respondent’s evidentiary objections. However, Petitioner’s February 18, 2020 response to Respondent’s objections is effectively a surreply raising new points and requesting additional attorney’s fees. The court did not grant Petitioner leave to file any surreply papers in connection with this motion, and Petitioner’s February 18, 2020 surreply is therefore unauthorized and untimely. (Code Civ. Proc., § 1005, subd. (b).) Therefore, the court exercises its discretion to disregard Petitioner’s February 18, 2020 response or surreply to Respondent’s objections.

Background

On May 12, 2015, petitioner John Doe (“Doe”) filed the Petition for Writ of Mandamus (the “Petition”) against respondent Ainsley Carry, Ed.D., in his official capacity as Vice Provost for Student Affairs, for the University of Southern California (collectively, “USC”), seeking to vacate USC’s finding that Doe had violated USC’s code of conduct by having nonconsensual sex with another USC student. On June 1, 2015, Doe sought, and the court denied without prejudice, a request for a temporary stay of USC’s decision to expel Doe. On August 24, 2015, Doe again sought, and the court denied, any temporary stay of USC’s decision to expel Doe.

On January 24, 2017, the court denied Doe’s Petition for Writ of Mandamus. On April 21, 2017, Doe appealed. On January 8, 2019, the Court of Appeal issued its Opinion which reversed the judgment of the trial court and remanded the case with directions to grant the petition for writ of administrative mandate.

Doe now moves for an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 1021.5 in the total amount of $157,561.25, plus a lodestar multiplier of 2.0 for a total award of $315,122.50. USC opposes the motion.

LEGAL STANDARD

“[T]he fundamental objective of [Section 1021.5] is to encourage suits effectuating a strong [public] policy by awarding substantial attorney’s fees . . . to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.” (Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 768 (citing Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217-1218) (internal quotations omitted).) “[E]ligibility for section 1021.5 attorney fees is established when (1) plaintiffs’ action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (Millview, supra, p. 768 (citation and internal quotations omitted).)

The court determines “the significance of the benefit, as well as the size of the class receiving [that] benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940.) For a benefit to be significant, the “extent of the public benefit” form the lawsuit must be substantial but “need not be great.” (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 781.)

“Litigation which enforces constitutional rights necessarily affects the public interest and confers a significant benefit upon the general public.” (City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.4th 32, 44; see also Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 319 [“While these rights are by nature individual rights, their enforcement benefits society as a whole.”].) A lawsuit that forces an entity to follow its own rules can confer a significant benefit. (See Doe v. Westmont College (2019) 34 Cal.App.5th 622, 640 [requiring university to comply with its own written policies “benefits students accused of sexual misconduct, victims, and colleges alike”].)

“An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’” (Millview, supra, at p. 768 (citing Whitley, supra, at p. 1215).) “In evaluating the element of financial burden, ‘the inquiry before the trial court [is] whether there were “insufficient financial incentives to justify the litigation in economic terms.”’” (Millview, supra, at p. 768 (quoting Summit Media LLC v. City of Los Angeles (2015) 240 Cal.App.4th 171, 193).) “The relevant issue is the estimated value of the case at the time the vital litigation decisions were being made.” (Id. at p. 769 (citing Davis v. Farmers Insurance Exchange (2016) 245 Cal.App.4th 1302, 1329) (internal quotations omitted).)

DISCUSSION

  1. The Court Should Award Attorney’s Fees to Doe Under Code of Civil Procedure Section 1021.5

Doe requests $157,561.25 in attorney’s fees, plus a lodestar multiplier of 2.0 for a total award of $315,122.50, pursuant to Code of Civil Procedure section 1021.5 as the successful party in an action to enforce an important public right. Doe contends that the due process rights afforded university students accused of sexual misconduct is an important right affecting the public interest and that the Court of Appeal’s decision in this case conferred a significant benefit on a large group of California college students. Thus, the necessity and financial burden of private enforcement make an award of attorney’s fees under Code of Civil Procedure section 1021.5 appropriate.

In opposition, USC contends that Doe is not a true private attorney general because he did not confer a significant benefit on a large class of individuals and has a substantial financial stake in the outcome of this matter, which constituted sufficient incentive to litigate. USC argues Doe admitted he filed this action to exhaust judicial remedies before bringing an action in state court for damages and Doe cannot establish his private enforcement was necessary to benefit other students accused of sexual misconduct because the Court of Appeal opinion in this case is unpublished and merely relies on existing precedent. Further, USC contends Doe’s request for attorney fees is flawed because Doe fails to justify the time spent litigating this matter and Doe submits inaccurate, heavily redacted invoices.

In reply, Doe argues he is undisputedly the successful party and that his litigation enforced an important right affecting the public interest and benefitted the large class of persons subject to Title IX disciplinary proceedings in California. Doe argues that he had no personal financial interest in the litigation because the Petition could not confer financial damages on Doe, any monetary award from a subsequent damages claim against USC is speculative, and the suit merely granted Doe the ability to pay tuition and study at USC. Doe contends that private enforcement is necessary to protect the rights of students accused of sexual misconduct because USC did not amend its policies in response to the November 2018 proposed federal regulations. Finally, the Doe contends that the submitted timesheets are accurate and reasonable.

  1. Successful Party and Enforcement of an Important Right

The parties do not dispute that Doe is the successful party and that his litigation enforced an important right because he obtained a judgment vacating USC’s investigative findings to justify Doe’s expulsion from USC.

  1. Doe’s Litigation Conferred a Significant Benefit on a Large Class of Persons

The court finds that Doe’s litigation conferred a significant nonpecuniary benefit upon a large class of persons -- namely, students at USC and other colleges and universities in California who are accused of violating a sexual misconduct policy where a Title IX investigation is conducted. Doe’s litigation held USC’s Title IX office to account for enforcing the right to due process. (City of Fresno, supra, at p. 44 [“Litigation which enforces constitutional rights necessarily affects the public interest and confers a significant benefit upon the general public.”].) Granted, several recent Court of Appeal decisions have articulated and affirmed the specific procedural protections and due process principles at issue here. [1] However, the fact that litigation enforces existing rights does not mean that a substantial benefit to the public cannot result. (Otto v. Los Angeles Unified School Dist. (2003) 106 Cal.App.4th 328, 335 [“The fact that litigation enforces existing rights does not mean that a substantial benefit to the public cannot result. Attorney fees have consistently been awarded for the enforcement of well-defined, existing obligations.”].)

Further, the benefit conferred is a significant one because it affirms the application of due process principles to the proceedings that determine the innocence or guilt of college students accused of violating another student’s sexual autonomy. Given the serious nature of the alleged violation and consequences for everyone involved, ensuring the just and fair adjudication of university Title IX cases is a significant benefit for the large class of California university students accused of violating a sexual misconduct policy.

USC relies on several cases in which the plaintiffs’ legal victories may have conveyed a cautionary message but either did not confer a significant benefit on a large class or were primarily motivated by personal pecuniary gain. In reply, Doe argues that USC’s reliance on these cases is misplaced. The court agrees. In LaGrone v. City of Oakland (2011) 202 Cal.App.4th 932, 946, the plaintiff was denied attorney’s fees under section 1021.5 because he sued to be reinstated in his lucrative employment with backpay and benefits, obtaining a monetary remedy personal to him and only coincidentally protecting the public interest. In Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635-636, the plaintiff was denied attorney’s fees under section 1021.5 because attorney’s fees were already available under California’s Fair Employment and Housing Act, and the primary effect of the plaintiff’s litigation was the vindication of her personal rights. In Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1047, the plaintiff sued for a monetary award and to overturn an administrative decision disqualifying him from playing high school sports. In Ryan, the suit was primarily motivated by the plaintiff’s personal interest, not the vindication of the rights of students trying to play sports, because the plaintiff sought damages and did not challenge the rule used to disqualify him, instead arguing that the evidence showed he qualified for an exception. (Id. at p. 1046.)

In contrast, Doe successfully challenged the process by which USC investigated Doe’s alleged violation of a sexual misconduct policy. Even if Doe benefits personally from USC’s expulsion decision being temporarily overturned, this personal benefit is incidental to this litigation’s result. USC can re-investigate Doe for the same sexual misconduct allegation and reach the same conclusion, but with additional due process protections. Therefore, Doe’s litigation is distinguishable from USC’s cited cases and satisfies the element of conferring a significant benefit on a large class of persons.

  1. Insufficient Personal Financial Incentive to Justify Litigation

The court finds that Doe did not have sufficient personal financial incentives to justify the litigation, and that the necessity for pursuing this action placed a burden on Doe out of proportion to his individual stake in the matter. “The relevant issue is the estimated value of the case at the time the vital litigation decisions were being made.” (Millview, supra, at p. 769.) On May 7, 2015, USC concluded that Doe violated USC’s code of conduct by having nonconsensual sex with another USC student, and expelled Doe. On May 12, 2015, Doe filed the Petition, seeking a writ of administrative mandate against USC – a vital litigation decision. Doe’s Petition did not seek monetary damages. The only potential monetary value of a successful litigation would have been Doe’s returning to USC to finish the last three years of his degree, assuming USC did not find Doe guilty again upon re-investigation of the same alleged violation of the sexual misconduct policy. Therefore, the only value Doe could have been preserving was the amount in tuition Doe paid to earn his first year of academic credits. Compared to the $157,000 in attorney fees requested over this five-year litigation, this speculative value cannot have been sufficient to motivate Doe to pursue this litigation.

In opposition, USC has failed to identify a personal pecuniary interest Doe had in filing his Petition. Doe’s application for a temporary stay of his expulsion from USC was denied on August 24, 2015. Doe has been expelled for the last five years, diminishing the monetary value of the academic credits Doe had earned. However, Doe continued to make further vital litigation decisions in this action and eventually succeeded, conferring a significant benefit upon himself and other college students wrongfully denied due process rights in university Title IX administrative hearings.

The court notes USC’s arguments that Doe had a financial interest based on a potential lawsuit for damages are unconvincing because these financial interests are speculative and dependent on many subsequent events turning in Doe’s favor over the course of years.

  1. Necessity of Private Enforcement

The court finds the necessity of private enforcement is demonstrated by the seven California Court of Appeal decisions published during the five years this case was pending on the administrative hearing procedures at issue here.[2] Doe has presented unrebutted evidence that, during the relevant 5-year time period Doe was litigating this case, the rights of college students accused of sexual misconduct would not have been protected without private enforcement. USC’s opposition fails to show how the United States Department of Education could have enforced Doe’s procedural due process rights when the regulations theoretically protecting those rights were merely proposed in November 2018 (i.e., three years into this litigation) and there is no evidence they have since become law.

For the reasons set forth above, the court finds that Doe is entitled to attorney’s fees pursuant to Code of Civil Procedure section 1021.5 because Doe’s action has resulted in the enforcement of an important right affecting the public interest, a significant benefit has been conferred on the general public or a large class of persons as a result of Doe’s action, and the necessity for pursuing this action placed a burden on Doe out of proportion to his individual stake in the matter.

  1. The Reasonable Amount of Attorney’s Fees to Award Doe

“[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. 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.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted).) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State Univ. (2005) 132 Cal.App.4th 359, 396.)

Doe seeks an attorney’s fee award of $157,561.25, plus a lodestar multiplier of 2.0 for a total award of $315,122.50. In this action, Doe has been represented by the law firm of Hathaway Parker. The attorney billing rates for the six attorneys who performed work on this case, Mark Hathaway, Jenna Parker, Mark Allen, Kimberly Penix, and Cedric Severino, ranged from $225 to $650 per hour. (Hathaway Decl., ¶ 10.) Doe has submitted invoices reflecting the total time spent by each attorney on each task. (Motion, Exh. 6.)

USC contends that, if Doe is entitled to attorney’s fees pursuant to Code of Civil Procedure section 1021.5, Doe has failed to carry his burden to prove the amount of attorney’s fees requested and that the requested amount should be reduced.

First, USC contends that Doe has failed to provide information regarding the background, experience or skill of attorneys Mark Allen, Kimberly Penix, or Cedric Severino, who collectively billed 135.4 hours. Mark Hathaway attests that the rates of these attorneys are commensurate with the rates of other attorneys and firms in Southern California with similar experience and expertise. (Hathaway Supp. Decl., 2:13-20.) However, Doe has not submitted any other evidence concerning Mark Allen, Kimberly Penix, or Cedric Severino’s background, experience, or skills. In any event, the court relies on its own knowledge and familiarity with the legal market in Los Angeles County to determine that Mark Allen, Kimberly Penix, and Cedric Severino’s requested rates are reasonable. “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437 [internal citations omitted].) “In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees . . . .” (Id. at p. 437.) Moreover, “[t]here is no requirement that the reasonable market rate mirror the actual rate billed.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701.) Accordingly, the court finds that the requested hourly rates for attorneys Mark Allen, Kimberly Penix, and Cedric Severino are reasonable, and no reduction in attorney fees is warranted because of those rates.

Second, USC contends that the invoices include charges for work that is unrelated to the Petition and this action. Specifically, an invoice for emailing USC about evidence review on August 14, 2019 is likely unrelated because no evidence review occurred in this case around that date. Further, an invoice for emailing Julie Arias Young about a case called Guerrero v. USC is likely unrelated to this case. Doe concedes these two time entries, totaling 0.2 hours, should be removed. Accordingly, the court reduces the attorney’s fees award by $130.

Third, USC contends the invoices redact the names of individuals with whom Doe’s counsel spoke, which along with the two unredacted invoices for other cases suggests those conversations could have been on other cases. Doe’s counsel argues the redactions hide Doe’s real name and the names of Doe’s parents only. Although Doe’s counsel did not sign a declaration that the redactions in the billing hide Doe’s real name and the names of Doe’s parents only, counsel’s declaration does attest the billing invoices are accurate. Given the number of time entries for correspondence with persons with redacted names and the number of time entries for correspondence with “client,” the court finds it more likely that the redactions in Doe’s counsel’s billing invoices hide the real names of Doe and Doe’s parents, than that counsel included 54 unrelated time entries in the billing invoices. (Hathaway Decl., Ex. 6.) Accordingly, the court declines to reduce the attorney’s fees award for the redacted entries above.

Fourth, USC contends Doe should not receive attorney’s fees for his two unsuccessful ex parte petitions to stay USC’s expulsion decision or his unsuccessful motion to compel production of Jane Roe’s medical records from the Santa Monica-UCLA Rape Treatment Center because these activities were undertaken to advance Petitioner’s personal interest only. Doe argues these motions are part of the actions taken to prosecute the writ of mandate and protect Doe’s right to an education. The court finds that these unsuccessful motions were nonetheless part of the litigation of Doe’s successful writ petition, and USC has not shown a compelling reason to deny attorney’s fees for these individual time entries, even assuming the motions in those time entries requested relief that was more personal to Doe’s case than the generalized rights of college students. For an award under Code of Civil Procedure section 1021.5, “[t]here is no requirement that each motion or opposition be reasonable.” (City of Los Angeles v. Metropolitan Water Dist. Of So. Cal. (2019) 42 Cal.App.5th 290, 307 (citation omitted).) Accordingly, the court declines to reduce the attorney’s fees award for the unsuccessful ex parte petitions.

Fifth, USC contends the invoices and fee requests include time entries marked “no charge.” USC argues that if Doe’s counsel would not have billed Doe for this time, counsel should not be able to recover fees for this time in this motion. Doe argues these entries are related to Doe’s defense in the Title IX process and this writ action. “[A]bsent circumstances rendering the award unjust, fees recoverable under section 1021.5 ordinarily include compensation for all hours reasonably spent . . . .” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639 (emphasis added).) There is no dispute that Doe’s counsel spent the time reflected in the “no charge” entries. The court finds the time reflected in these entries was reasonably spent. Accordingly, the court declines to reduce the attorney’s fees award for the “no charge” time entries.

Sixth, USC contends the invoices include entries for communications with Dr. Ainsley Carry. As a represented party, all communications intended for Dr. Carry should have gone through counsel. The fact that there are still entries for communicating directly with Dr. Carry suggests those entries are unrelated to this case. Doe argues he is entitled to attorney’s fees for the number of hours reasonably expended. The court agrees with USC that time entries showing Doe’s counsel communicated with the represented Dr. Carry either probably relate to another case or were not reasonably expended because Doe’s counsel was obligated to refrain from contacting a represented person. Accordingly, the court reduces the attorney’s fees award by $411.

Finally, USC contends that the invoices include entries for attorneys doing work that should have been done by support staff, such as attorney Jenna Parker billing 2.5 hours on February 28, 2018 for “formatting appellant’s opening brief.” Doe argues attorneys in small firms must occasionally perform “staff level work” and should not be penalized for that. The court agrees with USC that formatting work should have been done by support staff. Accordingly, the court reduces the attorney’s fees award by $687.50 for 2.5 hours for Jenna Parker at a rate of $275 per hour. (Mot., Exh. H, p. 31, Entry #194937.)

Based on its review of the evidence presented (including the work and time entries on the attorney’s billing records), the court finds that the hourly rates charged by each of Doe’s attorneys are reasonable and that the lodestar attorney’s fees requested by Doe (as adjusted pursuant to the court’s findings above) were reasonably incurred by Doe in connection with the commencement and prosecution of this action.

Doe also seeks an adjustment to his attorney’s fee request by a lodestar multiplier of 2.0. “[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 omitted.] 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. The ‘“experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The court finds that (1) this action did not present novel and difficult issues, given the seven Court of Appeal opinions in similar cases within the last five years; (2) Doe’s attorneys displayed skill in presenting these issues, but those issues are familiar to Doe’s counsel; (3) Doe’s attorneys admit to working on as many as 50 other cases while litigating this case; (4) Doe was able to pay $129,406.17 against the total of $157,561.25 in fees (Hathaway Decl., ¶ 14), so this action involved less contingent risk to Doe’s attorneys; and (5) although the benefit conferred was significant on a large class of persons, this factor alone does not require a multiplier when Doe’s attorneys are already receiving more than $150,000 in fees. Therefore, the court exercises its discretion to deny Doe’s request for a lodestar multiplier.

In his surreply filed February 18, 2020, Doe requests $7,495 in attorney’s fees for preparing and arguing this fee motion, consisting of 15.7 hours by Parker at $375 per hour, 2.3 hours by Hathaway at $650 per hour, and 0.75 by legal assistant Alvarado at $150 per hour. However, as discussed above, the court did not grant Doe leave to file any surreply papers in connection with this motion, and Doe’s February 18, 2020 surreply is therefore unauthorized and untimely. (Code Civ. Proc., § 1005, subd. (b).) Further, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Here, USC did not have an opportunity to oppose Doe’s supplemental request for $7,495 in attorney’s fees. Accordingly, the court denies Doe’s supplemental request for $7,495 in attorney’s fees for drafting and arguing this motion.

ORDER

For the reasons set forth above, the court grants petitioner John Doe’s motion for an order awarding attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

The court orders that Doe shall recover a total of $156,332.75 in attorney’s fees against respondents in this action for work performed by the law firm of Hathaway Parker ($157,561.25 reduced by $130, $411, and $687.50).

The court orders petitioner John Doe to give notice of this order.

IT IS SO ORDERED.

DATED: July 16, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] See, e.g., Doe v. Westmont College (2019) 34 Cal.App.5th 622; Doe v. Allee (2019) 30 Cal.App.5th 1036; Doe v. University of Southern California (2018) 29 Cal.App.5th 1212; Doe v. Regents of University of California (2018) 28 Cal.App.5th 44; Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055; Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1072-73; Doe v. University of Southern California (2016) 246 Cal.App.4th 221.

[2] Doe v. Westmont College (2019) 34 Cal.App.5th 622; Doe v. Allee (2019) 30 Cal.App.5th 1036; Doe v. University of Southern California (2018) 29 Cal.App.5th 1212; Doe v. Regents of University of California (2018) 28 Cal.App.5th 44; Doe v. Claremont McKenna College(2018) 25 Cal.App.5th 1055; Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1072-73; Doe v. University of Southern California (2016) 246 Cal.App.4th 221.

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