This case was last updated from Los Angeles County Superior Courts on 06/18/2019 at 13:55:12 (UTC).

ROMMEL UVAS VS THRESIAMMA MATHEW AND REMY'S HT RN CARE LLC

Case Summary

On 11/08/2016 ROMMEL UVAS filed a Labor - Other Labor lawsuit against THRESIAMMA MATHEW AND REMY'S HT RN CARE LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9954

  • Filing Date:

    11/08/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiff and Petitioner

UVAS ROMMEL

Defendants and Respondents

THRESIAMMA MATTHEW AND REMY'S HT RN CARE

DOES 1 TO 10

REMY'S HT RN CARE LLC

THRESIAMMA MATHEW

MATHEW THRESIAMMA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BAUMLER NINA ESQ.

BAUMLER NINA JANE ESQ.

Defendant and Respondent Attorneys

RUBIN MICHAEL P. ESQ.

KELETI S MARTIN

RUBIN MICHAEL PHILIP ESQ.

HAVKIN STELLA ANNE

 

Court Documents

OPPOSITION OF DEFENDANTS TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S DEPOSITION; ETC.

2/5/2018: OPPOSITION OF DEFENDANTS TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S DEPOSITION; ETC.

NOTICE OF PLAINTIFF'S WAIVER OF RIGHT TO JURY TRIAL

7/10/2018: NOTICE OF PLAINTIFF'S WAIVER OF RIGHT TO JURY TRIAL

DECLARATION RE EX PARTE NOTICE

7/17/2018: DECLARATION RE EX PARTE NOTICE

Minute Order

7/17/2018: Minute Order

DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER GRANTING RELIEF FROM DEFENDANTS' INADVERTENT WAIVER OF JURY TRIAL, OR ALTERI?4ITAVELY, FOR ODER SPECIALLY SETTING A HEARING ON THAT MOTION; DECLARATION OF

7/17/2018: DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER GRANTING RELIEF FROM DEFENDANTS' INADVERTENT WAIVER OF JURY TRIAL, OR ALTERI?4ITAVELY, FOR ODER SPECIALLY SETTING A HEARING ON THAT MOTION; DECLARATION OF

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND RELATED CUT-OFF DATES; DECLARATION OF NINA BAUMLER IN SUPPORT

7/23/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND RELATED CUT-OFF DATES; DECLARATION OF NINA BAUMLER IN SUPPORT

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #2 RE ISSUE OF INDEPENDENT CONTRACT STATUS

7/26/2018: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #2 RE ISSUE OF INDEPENDENT CONTRACT STATUS

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #1 RE EVIDENCE OF CITIZENSHIP AND IMMIGRATION STATUS

7/26/2018: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #1 RE EVIDENCE OF CITIZENSHIP AND IMMIGRATION STATUS

Notice

12/21/2018: Notice

Unknown

1/4/2019: Unknown

Reply

1/24/2019: Reply

Minute Order

1/24/2019: Minute Order

Minute Order

3/15/2019: Minute Order

Witness List

4/5/2019: Witness List

Opposition

4/24/2019: Opposition

Order

5/9/2019: Order

Minute Order

5/9/2019: Minute Order

CASE MANAGEMENT ORDER

6/26/2017: CASE MANAGEMENT ORDER

104 More Documents Available

 

Docket Entries

  • 05/17/2019
  • Notice of Ruling; Filed by Thresiamma Mathew (Defendant); Remy's HT RN Care, LLC (Defendant)

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  • 05/13/2019
  • at 09:30 AM in Department 26, Elaine Lu, Presiding; Non-Jury Trial (*bankruptcy* (5 to 8 days)) - Not Held - Continued - Party's Motion

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  • 05/09/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Ex Parte Application (for Order Continuing Trial) - Held - Motion Granted

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  • 05/09/2019
  • Order (Following ex parte application for order continuing the trial presently set for May 13, 2019)

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  • 05/09/2019
  • Minute Order ( (Hearing on Ex Parte Application for Order Continuing Trial)); Filed by Clerk

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  • 05/08/2019
  • Ex Parte Application (for Order Continuing Trial); Filed by Thresiamma Mathew (Defendant); Remy's HT RN Care, LLC (Defendant)

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  • 05/08/2019
  • Response (TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL DATE); Filed by Rommel Uvas (Plaintiff)

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  • 05/08/2019
  • Notice (of Court Order on Plaintiff's Motion to Produce Documents at Trial); Filed by Rommel Uvas (Plaintiff)

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  • 05/06/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion - Other (Order to Produce Documents at Trial Pursuant to Notice to Appear and Produce (CCP Section 1987(c))) - Held - Motion Granted

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  • 05/06/2019
  • Minute Order ( (Hearing on Motion - Other Order to Produce Documents at Trial...)); Filed by Clerk

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194 More Docket Entries
  • 01/05/2017
  • NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANTS THRESIAMMA MATHEW AND REMY'S HT RN CARE, LLC TO PLAINTIFF'S UNDER FILED COMPLAINT FOR DAMAGES;ETC.

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  • 12/09/2016
  • Proof of Service (not Summons and Complaint); Filed by Rommel Uvas (Plaintiff)

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  • 12/09/2016
  • Proof of Service (not Summons and Complaint); Filed by Rommel Uvas (Plaintiff)

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  • 12/09/2016
  • PROOF OF SERVICE SUMMONS

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  • 12/09/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 12/06/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

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  • 12/06/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 11/08/2016
  • COMPLAINT-CONTRACT COMPLAINT FOR DAMAGES FOR: WAGE AND HOUR VIOLATIONS (CALIFORNIA LABOR CODE); AND ETC

    Read MoreRead Less
  • 11/08/2016
  • SUMMONS

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  • 11/08/2016
  • Complaint; Filed by Rommel Uvas (Plaintiff)

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Tentative Rulings

Case Number: BC639954    Hearing Date: December 09, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROMMEL UVAS,

Plaintiff,

v.

THERISIAMMA MATHEW; REMY’S HT RN CARE, LLC; et al.

Defendants.

Case No.: BC639954

Hearing Date: December 9, 2020

[TENTATIVE] order RE:

Plaintiff’s motion for attorney fees

Background

On November 8, 2016, Plaintiff Rommel Uvas (“Plaintiff”) filed the instant action against defendants Thresiamma Mathew and Remy’s HT RN Care LLC (jointly “Defendants”) . On May 8, 2017, Plaintiff filed a first amended complaint alleging three causes of action for Wage and Hour violations and for restitution based on unfair competition. After a four-day bench trial, the court found for Plaintiff on all three causes of action and entered judgment against Defendant Thresiamma Mathew in the amount of $364,500.15 not including costs or interest and against Defendant Remy’s HT RN Care LLC in the amount of $25,608.60 not including costs or interest. (Judgments filed 2/20/20.) In the judgment, court noted that costs and attorney fees were to be made per noticed motion.

On April 7, 2020, Plaintiff filed the instant motion for attorney fees and costs. On April 23, 2020, Defendants filed a notice of appeal as to the court’s orders of February 20, 2018, July 17, 2018, and February 1, 2019. On September 25, 2020, Defendants filed an opposition. On October 1, 2020, Plaintiff filed a reply.

On October 8, 2020, the Court continued the instant motion to allow for supplemental briefing. On October 15, 2020, Defendants filed a supplemental opposition. On October 22, 2020, Plaintiff filed a supplemental reply.

Request for Judicial Notice

Defendants request that the court take judicial notice of the order granting fees for Rich v. Bobb, Case No. CV 06-4795 CAS (JWJx).

As the Court may take judicial notice of court records, (See Evid. Code, § 452(d)), Defendants’ request for judicial notice is granted. However, the Court will not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Evidentiary Objections

Plaintiff objects to portions of S. Martin Keleti Declaration. However, these objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible.  (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)  Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process.  (People v. Coddington (2000) 23 Cal.4th 529, 644.) 

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees when authorized by contract or statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he 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.” (Ibid.) Relevant factors include: “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Statutory Authority for Recovery of Attorney Fees

Labor Code § 1194(a) provides that “[n]otwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.” (Id.) Similarly, Labor Code § 218.5(a)provides that “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action.” (Id.)

Here, Plaintiff prevailed on his claims for unpaid minimum and overtime wages. (Statement of Decision filed 1/2/20.) As the prevailing party on unpaid minimum wage and overtime wages, Plaintiff is entitled to attorney fees pursuant to Labor Code sections 1194(a) and 218.5(a).

In opposition, Defendants contend that the overall request should be apportioned as some of the claims are for labor code violations not covered by the fee shifting statute, such as the Unfair Competition claim. The court disagrees. “Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129–130.) Each of the causes of action is directly tied to the failure to pay minimum wages and overtime wages. Notably, almost the entirety of the damages is based on the failure to pay minimum wages and overtime wages. (Statement of Decision filed 1/2/20.)

Therefore, Plaintiff is entitled to attorney fees without apportionment.

Defendant’s Opposition

Defendants oppose Plaintiff’s request, contending that Plaintiff fails to justify his attorney’s rate, the number of hours is unreasonable, and there are no facts to justify a lodestar multiplier.

Reasonableness of Attorney’s Fees

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Hourly Rates

Attorney Nina Baumler

Attorney Nina Baumler (“Baumler”) is counsel of record for Plaintiff and billed at an hourly rate of $550.00. (Baumler Decl. ¶ 2.) In 2002 Baumler was admitted into the Law Society of England and Wales in 2002 as a solicitor and as an employment attorney from 2002-2006. (Id. ¶ 2(a).) In 2008, Baumler was admitted into the California Bar. (Id. ¶ 2(b).) From 2009-2010, Baumler worked at the non-profit Centro Legal de la Raza in Oakland representing low-income immigrant workers in housing and employment law. (Id. ¶ 2(c).) From 2010 to 2011, Baumler worked at the non-profits Bet Tzedek Legal Services and the Wage Justice Center representing low-income workers in wage and hour disputes. (Id. ¶ 2(d).) In 2011, Baumler opened her solo practice and has represented caregivers in more than 15 wage and hour claims. (Id. ¶¶ 2(e-f).) “In 2018, [Baumler] was selected to Southern California Super Lawyers - Rising Star list in the category of ‘Employment Litigation – Plaintiff’.” (Id. ¶ 2(g).) “In 2020, [Baumler] was selected to the 2020 Southern California Super Lawyers in the category of ‘Employment Litigation - ·Plaintiff’.” (Id. ¶ 2(h).) Baumler is an advisory board member of the nonprofit the Wage Justice Center and is chair of the California Employment Lawyers Association, Worker Outreach Committee. (Id. ¶¶ 2(i-j).) “[Baumler] believe[s] [her] regular billing rate is commensurate with market rates for attorneys with similar years and type of experience and is significantly less than the rates applicable under the Laffey matrix. According to the Laffey Matrix, the applicable rate for [her] years of experience is $747 per hour.” (Id. ¶ 10.)

Defendants contend that Baumler’s rate is unreasonable. However, Defendants appear to concede that $550 per hour is the median for litigation employment and labor law attorneys in the area. (Keleti Decl. ¶ 9, Ex. 2.) Defendants contend that this rate is only for partners with 21 years or more experience and is based on the size of the practice. (Opposition p.13:2-18.) As to years of experience, even for less than 21 years of experience, the rate is still below the third quartile. (Keleti Decl. Ex. 2.) While the firm size does show that the average rate is lower for firms with fewer than 50 attorney with a median of $350, this does not appear to account for the experience of the attorney. Here, given Baumler’s experience, the court finds her hourly rate to be reasonable.

Defense counsel S. Martin Keleti (“Keleti”) states that Keleti has been recognized as an expert on the subject of attorney fees. (Keleti Decl.¶ 2.) However, Keleti fails to provide any basis for an expert opinion. Further, the attached ruling in the case Rich v. Bobb, Case No. CV 06-4795 CAS (JWJx) only indicates that Keleti was a third-party attorney and given an hourly rate of $400 as an independent expert. (Keleti Decl. Ex.1.) The opinion does not state that the court found Keleti as an expert. Nor does it provide any underlying basis to support such a finding. Thus, Defendants’ claim that Keleti is an expert in attorney fees is unsupported.

At the October 8, 2020 hearing, Defendant brought to the court’s attention that according to a declaration that Baumler filed on October 5, 2017, Baumler’s rate on that date was $350 per hour. At the October 8, 2020 hearing, Defendant also raised that at a State Bar disciplinary proceeding against previous Defense counsel on November 18, 2019, Baumler testified that her hourly rate was $400 an hour at that time.

In the October 5, 2017 declaration filed with this Court, Baumler stated that “[her] hourly rate in this case is $350.00, a rate at which I have been awarded fees by judges of the Los Angeles Superior Court.” (Supplemental Keleti Decl. Ex 3; Baumler 10/5/17 Decl. ¶ 15.) The hearing for the motion in connection with which Baumler filed her October 5, 2017 declaration occurred on February 20, 2018. Plaintiff contends that the prior sanction awards does not set the reasonable market value of Plaintiff’s Counsel’s services and Plaintiff contends that the requested hourly rate was below-market rate based on Plaintiff’s counsel’s experience and expertise. (Supplemental Reply p.4:25-26.) Plaintiff bears the burden of showing reasonableness of Plaintiff’s Counsel’s claimed hourly rates. The court finds Baumler’s contemporaneous declaration attesting to an hourly rate of $350 should be accorded greater weight than her post hoc declaration. Based on Baumler’s October 5, 2017 declaration, the court finds that the hourly rate incurred by Plaintiff for that time period was $350 per hour.

During the November 18, 2019 State Bar proceeding, against former defense counsel, Baumler testified that she “would use the rate of $400 on a sanctions motion.” (Keleti Decl. Ex. 4, at p.I-144.) Though Baumler also stated at the November 18, 2019 hearing that “[she] think[s] probably [her hourly rate] would be somewhere around 550 [she] think[s]. But, [Baumler is] guessing a little.” (Ibid.) This additional testimony does not indicate that Plaintiff’s hourly rate was $550 at the time as Baumler freely admitted that she was “guessing a little.” Moreover, Plaintiff provides no explanation why Baumler would have sought sanctions at an hourly rate of $400 at the time if that were not her reasonable hourly rate at the time.

Accordingly, the court finds that the reasonable hourly rate is $350 per hour from the time of Plaintiff’s Counsel’s retention until February 20, 2018 (the hearing date for the motion filed on October 5, 2017), an hourly rate of $400 per hour from February 20, 2018 until November 18, 2019 ( the State bar proceedings), and an hourly rate of $550 per hour from November 18, 2019 onward.

Hours Spent

In the reply, Plaintiff agrees to a reduction of 2.4 hours for meeting and conferring in relation to a motion for a protective order for which the court already awarded sanctions. With this reduction, Plaintiff provides billing and costs, requesting a total of 542.4 hours at $550/hour for total attorney fees of $298,320. (Baumler Decl. Ex. A.)

Defendants contend that 26 of the entries for traveling were for unjustified trips and that the court should reduce the number of hours by 46.8. Plaintiff contends that this travel time was necessary for the five final status conferences, six ex-parte application hearings, four motion hearings, and thirteen pre-trial hearings as noted in the minute orders for “February 20, 2018; July 17, 2018; July 23, 2018; August 2, 2018; January 24, 2019; February 1, 2019; February 11, 2019; March 15, 2019; April 12, 2019; May 9, 2019; July 1, 2019; September 30, 2019; and October 3, 2019.” (Reply p.5:21-24.) The court notes that attendance was required in person for these hearings. Thus, the court declines to reduce the 46.8 hours for travel.

Defendants also contend that there should be a reduction for clerical tasks and that 5.7 hours should be reduced for preparing binders for discovery and trial exhibits, and another 10.2 hours for the time spent serving and filing motions in 34 different entries. In reply, Plaintiff contends that the time spent is reasonable as there is no indication that the time spent was purely clerical. Nor is there a showing that Plaintiff’s counsel’s billing could have been carried out by a paralegal. The court agrees and declines to reduce the hours as the work does not appear purely clerical.

Defendants contend that some of the tasks appear excessive and requests that 10 hours be reduced for excessive time spent on these activities. The court notes that Defendants point to numerous entries specifically totaling a total time of 75.1 hours spent such as the time spent on preparing for cross-examination. Plaintiff contends that this time was reasonably necessary, the court agrees. For example, the impeachment of Defendant Mathew was critical in the statement of decision. Therefore, the court declines to reduce the amount.

Finally, Defendants contend that the time entries are inflated and should be reduced by 10%. The court disagrees as noted above.

Lodestar Enhancement

Plaintiff requests a lodestar enhancement multiplier of 1.25 given the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. Defendants oppose stating that the enhancement is not warranted, the amount has been included already in the attorney fees, and that the contingent nature of this case is overstated.

Our Supreme Court has provided clear guidance for trial courts in determining whether to apply a multiplier:

Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.

(Ketchum, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors raised have already been addressed in the calculations of the hours worked and hourly rate above. Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

Accordingly, utilizing a lodestar approach, and in view of the totality of the circumstances, including the application of the hourly rate above, the court finds that the total and reasonable amount of attorney’s fees incurred is $212,890.00.

Costs

Under Code of Civil Procedure section 1033.5 the costs are allowable and undisputed. Accordingly, costs of $15,502.45 are granted. (Baumler Decl. Ex. B; Memorandum of Costs filed 2/14/20.)

CONCLUSION AND ORDER

For the foregoing reasons, Plaintiff Rommel Uvas’s motion for attorney fees and costs is GRANTED in the total amount of $212,890.00 attorney’s fees plus costs of $15,502.45.

Moving party is ordered to provide notice of this order and file proof of service of such.

DATED: December 9, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: BC639954    Hearing Date: October 08, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROMMEL UVAS,

Plaintiff,

v.

THERISIAMMA MATHEW; REMY’S HT RN CARE, LLC; et al.

Defendants.

Case No.: BC639954

Hearing Date: October 8, 2020

[TENTATIVE] order RE:

Plaintiff’s motion for attorney fees

Background

On November 8, 2016, Plaintiff Rommel Uvas (“Plaintiff”) filed the instant action against defendants Thresiamma Mathew and Remy’s HT RN Care LLC (jointly “Defendants”) . On May 8, 2017, Plaintiff filed a first amended complaint alleging three causes of action for Wage and Hour violations and for restitution based on unfair competition. After a four-day bench trial, the court found for Plaintiff on all three causes of action and entered judgment against Defendant Thresiamma Mathew in the amount of $364,500.15 not including costs or interest and against Defendant Remy’s HT RN Care LLC in the amount of $25,608.60 not including costs or interest. (Judgments filed 2/20/20.) In the judgment, court noted that costs and attorney fees were to be made per noticed motion.

On April 7, 2020, Plaintiff filed the instant motion for attorney fees and costs. On April 23, 2020, Defendants filed a notice of appeal as to the court’s orders of February 20, 2018, July 17, 2018, and February 1, 2019. On September 25, 2020, Defendants filed an opposition. On October 1, 2020, Plaintiff filed a reply.

Request for Judicial Notice

Defendants request that the court take judicial notice of the order granting fees for Rich v. Bobb, Case No. CV 06-4795 CAS (JWJx).

As the Court may take judicial notice of court records, (See Evid. Code, § 452(d)), Defendants’ request for judicial notice is granted. However, the Court will not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Evidentiary Objections

Plaintiff objects to portions of S. Martin Keleti Declaration. However, these objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible.  (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)  Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process.  (People v. Coddington (2000) 23 Cal.4th 529, 644.) 

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees when authorized by contract or statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he 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.” (Ibid.) Relevant factors include: “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Statutory Authority for Recovery of Attorney Fees

Labor Code § 1194(a) provides that “[n]otwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.” (Id.) Similarly, Labor Code § 218.5(a)provides that “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action.” (Id.)

Here, Plaintiff prevailed on his claims for unpaid minimum and overtime wages. (Statement of Decision filed 1/2/20.) As the prevailing party on unpaid minimum wage and overtime wages, Plaintiff is entitled to attorney fees pursuant to Labor Code sections 1194(a) and 218.5(a).

In opposition, Defendants contend that the overall request should be apportioned as some of the claims are for labor code violations not covered by the fee shifting statute, such as the Unfair Competition claim. The court disagrees. “Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129–130.) Each of the causes of action is directly tied to the failure to pay minimum wages and overtime wages. Notably, almost the entirety of the damages is based on the failure to pay minimum wages and overtime wages. (Statement of Decision filed 1/2/20.)

Therefore, Plaintiff is entitled to attorney fees without apportionment.

Defendant’s Opposition

Defendants oppose Plaintiff’s request, contending that Plaintiff fails to justify his attorney’s rate, the number of hours is unreasonable, and there are no facts to justify a lodestar multiplier.

Reasonableness of Attorney’s Fees

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Hourly Rates

Attorney Nina Baumler

Attorney Nina Baumler (“Baumler”) is counsel of record for Plaintiff and billed at an hourly rate of $550.00. (Baumler Decl. ¶ 2.) In 2002 Baumler was admitted into the Law Society of England and Wales in 2002 as a solicitor and as an employment attorney from 2002-2006. (Id. ¶ 2(a).) In 2008, Baumler was admitted into the California Bar. (Id. ¶ 2(b).) From 2009-2010, Baumler worked at the non-profit Centro Legal de la Raza in Oakland representing low-income immigrant workers in housing and employment law. (Id. ¶ 2(c).) From 2010 to 2011, Baumler worked at the non-profits Bet Tzedek Legal Services and the Wage Justice Center representing low-income workers in wage and hour disputes. (Id. ¶ 2(d).) In 2011, Baumler opened her solo practice and has represented caregivers in more than 15 wage and hour claims. (Id. ¶¶ 2(e-f).) “In 2018, [Baumler] was selected to Southern California Super Lawyers - Rising Star list in the category of ‘Employment Litigation – Plaintiff’.” (Id. ¶ 2(g).) “In 2020, [Baumler] was selected to the 2020 Southern California Super Lawyers in the category of ‘Employment Litigation - ·Plaintiff’.” (Id. ¶ 2(h).) Baulmer is an advisory board member of the nonprofit the Wage Justice Center and is chair of the California Employment Lawyers Association, Worker Outreach Committee. (Id. ¶¶ 2(i-j).) “[Baumler] believe[s] [her] regular billing rate is commensurate with market rates for attorneys with similar years and type of experience and is significantly less than the rates applicable under the Laffey matrix. According to the Laffey Matrix, the applicable rate for [her] years of experience is $747 per hour.” (Id. ¶ 10.)

Defendants contend that Baumler’s rate is unreasonable. However, Defendants appear to concede that $550 per hour is the median for litigation employment and labor law attorneys in the area. (Keleti Decl. ¶ 9, Ex. 2.) Defendants contend that this rate is only for partners with 21 years or more experience and is based on the size of the practice. (Opposition p.13:2-18.) As to years of experience, even for less than 21 years of experience, the rate is still below the third quartile. (Keleti Decl. Ex. 2.) While the firm size does show that the average rate is lower for firms with fewer than 50 attorney with a median of $350, this does not appear to account for the experience of the attorney. Here, given Baumler’s experience, the court finds her hourly rate to be reasonable.

Defense counsel S. Martin Keleti (“Keleti”) states that Keleti has been recognized as an expert on the subject of attorney fees. (Keleti Decl.¶ 2.) However, Keleti fails to provide any basis for an expert opinion. Further, the attached ruling in the case Rich v. Bobb, Case No. CV 06-4795 CAS (JWJx) only indicates that Keleti was a third-party attorney and given an hourly rate of $400 as an independent expert. (Keleti Decl. Ex.1.) The opinion does not state that the court found Keleti as an expert. Nor does it provide any underlying basis to support such a finding. Thus, Defendants’ claim that Keleti is an expert in attorney fees is unsupported.

Accordingly, the court finds Baumler’s rates to be reasonable based on the attorney’s rates and experience.

Hours Spent

In the reply, Plaintiff agrees to a reduction of 2.4 hours for meeting and conferring in relation to a motion for a protective order for which the court already awarded sanctions. With this reduction, Plaintiff provides billing and costs, requesting a total of 542.4 hours at $550/hour for total attorney fees of $298,320. (Baulmer Decl. Ex. A.)

Defendants contend that 26 of the entries for traveling were for unjustified trips and that the court should reduce the number of hours by 46.8. Plaintiff contends that this travel time was necessary for the five final status conferences, six ex-parte application hearings, four motion hearings, and thirteen pre-trial hearings as noted in the minute orders for “February 20, 2018; July 17, 2018; July 23, 2018; August 2, 2018; January 24, 2019; February 1, 2019; February 11, 2019; March 15, 2019; April 12, 2019; May 9, 2019; July 1, 2019; September 30, 2019; and October 3, 2019.” (Reply p.5:21-24.) The court notes that attendance was required in person for these hearings. Thus, the court declines to reduce the 46.8 hours for travel.

Defendants also contend that there should be a reduction for clerical tasks and that 5.7 hours should be reduced for preparing binders for discovery and trial exhibits, and another 10.2 hours for the time spent serving and filing motions in 34 different entries. In reply, Plaintiff contends that the time spent is reasonable as there is no indication that the time spent was purely clerical. Nor is there a showing that Plaintiff’s counsel’s billing could have been carried out by a paralegal. The court agrees and declines to reduce the hours as the work does not appear purely clerical.

Defendants contend that some of the tasks appear excessive and requests that 10 hours be reduced for excessive time spent on these activities. The court notes that Defendants point to numerous entries specifically totaling a total time of 75.1 hours spent such as the time spent on preparing for cross-examination. Plaintiff contends that this time was reasonably necessary, the court agrees. For example, the impeachment of Defendant Mathew was critical in the statement of decision. Therefore, the court declines to reduce the amount.

Finally, Defendants contend that the time entries are inflated and should be reduced by 10%. The court disagrees as noted above.

Lodestar Enhancement

Plaintiff requests a lodestar enhancement multiplier of 1.25 given the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. Defendants oppose stating that the enhancement is not warranted, the amount has been included already in the attorney fees, and that the contingent nature of this case is overstated.

Our Supreme Court has provided clear guidance for trial courts in determining whether to apply a multiplier:

Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.

(Ketchum, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors raised have already been addressed in the calculations of the hours worked and hourly rate above. Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

Accordingly, utilizing a lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees incurred is $298,320.00.

Costs

Under Code of Civil Procedure section 1033.5 the costs are allowable and undisputed. Accordingly, costs of $15,502.45 are granted. (Baumler Decl. Ex. B; Memorandum of Costs filed 2/14/20.)

CONCLUSION AND ORDER

For the foregoing reasons, Plaintiff Rommel Uvas’s motion for attorney fees and costs is GRANTED in the total amount of $298,320.00 attorney’s fees plus costs of $15,502.45.

Moving party is ordered to provide notice of this order and file proof of service of such.

DATED: October 8, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

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