DIMINGO LOPEZ-LOPEZ ET AL VS BBS NATIONAL INC ET AL

Tentative Rulings

Case Number: ****1453    Hearing Date: July 01, 2020    Dept: 40

MOVING PARTY: Plaintiffs Domingo Lopez-Lopez, Juan Hernandez Lopez, and Pablo Hernandez Lopez

OPPOSITION: Defendant BBS National, Inc., d.b.a. Asian Kitchen

On April 29, 2019, this Court conducted a bench trial on Plaintiffs Domingo Lopez-Lopez, Juan Hernandez Lopez, and Pablo Hernandez Lopez (collectively, “Plaintiffs”) suit against BBS National, Inc., d.b.a. Asian Kitchen alleging various wage and hour violations.

On January 24, 2020, the Court entered a Judgment in Plaintiffs’ favor and Plaintiffs now request $187,388.40 in attorneys’ fees. Defendant filed an opposition.

Standard: A party may be entitled to recover attorneys’ fees by statute or contract. CCP ; 1021. Labor Code ; 218.5 provides that reasonable attorney’s fees and costs must be awarded to the prevailing party in an “action brought for the nonpayment of wages.” Labor Code ; 1194 also provides for a mandatory award of reasonable attorney’s fees and costs in a civil action in which the employee recovers unpaid minimum wages or overtime compensation.

Plaintiffs declare that they were the prevailing party because the Court found that Defendant failed to pay wages, failed to provide meal periods, failed to provide rest periods, failed to pay overtime wages, failed to pay wages due upon termination (waiting time penalties), and failed to issue an accurate itemize wage statement. Only the Unlawful Business Practice claim was dismissed.

“[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. “California courts have consistently held that 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 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.

Plaintiffs had two counsel representing them. Counsel Daniel Goularte declares that he took over the bulk of the work on the matter from counsel Jack Josephon, after the latter was injured.

Goularte declares that he spent the following hours on the matter:

2019: $495 hourly rate x 157.6 hours= $78,012.00

2018: $485 x 20= $9,700.00

Total: 177.6 hours and $87,712.00

Goularte requests a 1.2 multiplier for a total fee award of $105,254.40.

Josephon declares that he spent the following hours on the matter:

2019: $675.00 hourly rate x 8.4 hours= $5,670.00

2018: $675.00 x 20.7= $13,972.50

2017: $675.00 x 72.3= $48,802.50

Total: 101.4 hours and $68,445.00

Josephson also requests a 1.2 multiplier for a total fee award of 82,134.00.

Defendant argues that Plaintiff cannot recover attorneys’ fees on the meal and rest period claims. Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244. Defendant also states that since the Court awarded waiting time penalties on the basis of the missed meal and rest periods then attorneys’ fees cannot be awarded for that claim. Ling v. P.F. Chang’s China Bistro, Inc. (2016) 238 Cal.App.4th 1242, 1261.

Defendant states that: 1) Plaintiffs Domingo Lopez obtained $23,645.55 for rest and meal break and waiting time, which is 32% of his total recovery, 2) Juan Lopez obtained $9,902.00 which is

approximately 45.7% of his total recovery, 3) and Pablo Lopez obtained $11,817.50 for rest and meal break and waiting time, which is 40% of his recovery. Defendant states that the average rest and meal break and waiting time percentage of the total award for Plaintiff is 40%. Therefore, Defendant states that the Court must apportion 40% of the fees, which is $74,955.36, because such amount is not allowable by law.

In response, Plaintiffs cite to Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, which held that attorneys’ 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 [fees] are not allowed.”

The Court declines to apportion the fees. “When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required.” Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134. Here, Plaintiffs won on all but one cause of action and the claims are so intertwined that it is not possible to separate them. For example, this Court found that missed meal and rest breaks, are the same works days that overtime wages were worked and unpaid.

Alternatively, Defendant argues that the Court should reduce counsels’ hourly rate to $350 which is higher than the prevailing rate in Los Angeles. (Def. Opp’n, Ex. 3.) However, the Court agrees with Plaintiffs that generalized objections that hours are excessive or unnecessary are insufficient to rebut a fee claim. Avikian v. WTC Fin. Corp. (2002) 98 Cal.App 4th 1108. The Court is also not persuaded by Defendant’s exhibit as to the prevailing rate in Los Angeles, because it is merely a blog post.

The Court will award Plaintiffs their attorneys’ fees, however, the Court will reduce Josephon’s hourly rate to $495, as requested by the trial attorney Goularte.

Plaintiffs’ counsels request a 1.2 multiplier. The Court declines to apply any multiplier. There is no indication that this case was complex considering that counsels specialize in these types of cases. There is no evidence that counsels were precluded from taking other cases because of this case. The successful resolution achieved was not exceptional for this type of case.

Conclusion: Plaintiffs’ motion for attorneys’ fees is GRANTED based a hourly rate of $495 for 279 hours in the amount of $138,105.00.