This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 06:46:56 (UTC).

GLORIA GUZMAN VS HOOMAN ENTERPRISES INC

Case Summary

On 09/14/2017 GLORIA GUZMAN filed a Labor - Wrongful Termination lawsuit against HOOMAN ENTERPRISES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL P. LINFIELD. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5851

  • Filing Date:

    09/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL P. LINFIELD

 

Party Details

Plaintiff and Petitioner

GUZMAN GLORIA

Defendants and Respondents

HOOMAN CHEVORLET

HOOMAN ENTERPRISES INC

DOES 1 TO 10

NBA AUTOMOTIVE INC. DBA HOOMAN CHEVROLET OF CULVER CITY ESA HOOMAN ENTERPRISES INC. DBA HOOMAN CHEVROLET

HOOMAN ENTERPRISES INC.

HOOMAN CHEVROLET

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LYON GEOFFREY C. ESQ.

ELKRIEF JEFFREY

Defendant and Respondent Attorneys

MCCREARY DUNCAN ESQ.

MCCREARY DUNCAN J.

 

Court Documents

Minute Order

3/12/2018: Minute Order

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ADMISSIONS TO BE DEEMED ADMITTED, AND FOR MONETARY SANCTIONS AGAINST DEFENDANT HOOMAN ENTERPRISES INC., DBA HOOMAN CHEVROLET AND ETC

9/12/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ADMISSIONS TO BE DEEMED ADMITTED, AND FOR MONETARY SANCTIONS AGAINST DEFENDANT HOOMAN ENTERPRISES INC., DBA HOOMAN CHEVROLET AND ETC

HOOMAN CHEVROLET OF CULVER CITY'S OPPOSITION TO PLAINTIFF'S MOTION FOR ADMISSIONS TO BE DEEMED ADMITTED; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DUNCAN J. MCCREARY

9/21/2018: HOOMAN CHEVROLET OF CULVER CITY'S OPPOSITION TO PLAINTIFF'S MOTION FOR ADMISSIONS TO BE DEEMED ADMITTED; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DUNCAN J. MCCREARY

NOTICE RE: CONTINUANCE OF HEARING

9/24/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

9/24/2018: NOTICE RE: CONTINUANCE OF HEARING

Amendment to Complaint (Fictitious/Incorrect Name)

1/3/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Order

1/29/2019: Order

Exhibit List

2/1/2019: Exhibit List

Motion to Compel Further Discovery Responses

2/1/2019: Motion to Compel Further Discovery Responses

Request for Judicial Notice

3/8/2019: Request for Judicial Notice

Opposition

3/8/2019: Opposition

Opposition

3/12/2019: Opposition

Reply

3/18/2019: Reply

Notice

3/20/2019: Notice

Minute Order

3/25/2019: Minute Order

Unknown

1/10/2018: Unknown

NOTICE OF CASE MANAGEMENT CONFERENCE

9/22/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

SUMMONS FIRST AMENDED

9/15/2017: SUMMONS FIRST AMENDED

52 More Documents Available

 

Docket Entries

  • 04/22/2019
  • at 08:30 AM in Department 34; Jury Trial - Not Held - Continued - Party's Motion

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  • 04/09/2019
  • at 09:00 AM in Department 34; Final Status Conference - Held - Continued

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  • 04/09/2019
  • at 08:30 AM in Department 34; Hearing on Ex Parte Application (To Continue Trial) - Held - Motion Granted

    Read MoreRead Less
  • 04/09/2019
  • Minute Order ( (Final Status Conference; Hearing on Ex Parte Application To C...)); Filed by Clerk

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  • 04/08/2019
  • Ex Parte Application (To Continue Trial); Filed by Gloria Guzman (Plaintiff)

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  • 04/08/2019
  • Opposition (to Ex Parte Application to Continue Trial); Filed by NBA Automotive, Inc. dba Hooman Chevrolet of Culver City (Defendant)

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  • 03/25/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

    Read MoreRead Less
  • 03/25/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

    Read MoreRead Less
  • 03/25/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

    Read MoreRead Less
  • 03/25/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

    Read MoreRead Less
95 More Docket Entries
  • 09/25/2017
  • Proof-Service/Summons

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  • 09/22/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 09/22/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 09/15/2017
  • FIRST AMENDED COMPLAINT FOR DAMAGES FOR DISABILITY DISCRIMINATION IN EMPLOYMENT, WRONGFUL TERMINATION ETC.

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  • 09/15/2017
  • Summons; Filed by Gloria Guzman (Plaintiff)

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  • 09/15/2017
  • SUMMONS FIRST AMENDED

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  • 09/15/2017
  • First Amended Complaint; Filed by Gloria Guzman (Plaintiff)

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  • 09/14/2017
  • COMPLAINT FOR DAMAGES FOR DISABILITY DISCRIMINATION IN EMPLOYMENT, WRONGFUL TERMTNATION AND RELATED CLAIMS

    Read MoreRead Less
  • 09/14/2017
  • Complaint; Filed by Gloria Guzman (Plaintiff)

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  • 09/14/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC675851    Hearing Date: March 03, 2020    Dept: 34

SUBJECT: Motion for Attorneys’ Fees and Costs

Moving Party: Plaintiff Gloria Guzman

Responding Party: Defendant NBA Automotive, Inc. d/b/a Hooman Chevrolet of Culver City

The Court GRANTS in part Plaintiff’s motion for attorneys’ fees and costs in the amount of $223,756.38, which includes $203,251.53 for attorneys’ fees and $20,504.85 in costs.

BACKGROUND:

Plaintiff Gloria Guzman commenced this action on September 14, 2017 and filed her first amended complaint (“FAC”) the next day on September 15, 2017 against Defendant NBA Automotive, Inc. d/b/a Hooman Chevrolet of Culver City for (1) disability discrimination in employment, pursuant to Govt. Code § 12940(a); (2) failure to engage in a timely, good faith, interactive process to determine reasonable accommodation for disability, pursuant to Govt. Code § 12940(n); (3) failure to reasonably accommodate disabilities, pursuant to Govt. Code § 12940(m); (4) medical leave retaliation, pursuant to Govt. Code § 12945.2 (CFRA); (5) medical leave discrimination, pursuant to Govt. Code § 12945.2 (CFRA); (6) failure to pay wages due upon termination, pursuant to Labor Code §§ 202-203 ; (7) failure to pay wages due upon termination- vacation pay, pursuant to Labor Code §§ 202-203, 218, 227.3; (8) discrimination based on age, pursuant to Govt. Code § 12940(a); (9) retaliation for opposing violations of FEHA, pursuant to Govt. Code § 12900, et seq., Govt. Code § 12940(h); (10) retaliation for refusing to participate in conduct violating statute(s) of regulation(s), pursuant to Labor Code §§ 1102.5 & 1102.6; (11) failure to prevent and stop harassment, discrimination, and retaliation, pursuant to Govt. Code § 12940(j), (k); and (12) wrongful termination in violation of public policies.

On August 16, 2019, the jury returned verdicts for Plaintiff and against Defendant on Plaintiff’s causes of action for wrongful termination and FEHA retaliation.

On August 16, 2019, the jury also returned verdicts for Defendant and against Plaintiff Plaintiff’s claims for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, age discrimination and punitive damages.

On November 12, 2019, the Court entered judgment in favor of Plaintiff in the amount of $245,892.00 for compensatory damages and entered judgment in favor of Defendant for the disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, age discrimination and punitive damages claims. The Court stated that Plaintiff is the prevailing party.

On January 6, 2020, the Court denied Defendant’s motion for judgment notwithstanding the verdict and motion for new trial.

On January 10, 2020, Plaintiff filed the instant motion for attorney’s fees of $698,505.20 and costs of $41,009.70.

ANALYSIS:

A. Legal Standard

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

Government Code section 12965, subdivision (b) provides that “the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12956, subd. (b).)

42 U.S.C. section 1988, subdivision (b) provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . .” (42. U.S.C, §1998, subd. (b).)

Thus, these statutes include a “reasonable attorney’s fees” standard.

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) 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.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino, 182 Cal.App.3d at 559.)

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated to not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

In determining whether the requested attorney’s fees are “reasonable,” the Court’s

“first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].)

In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

“‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’” (Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

B. Discussion

Plaintiff moves for attorneys’ fees and costs “on the grounds [that] Ms. Guzman is the prevailing party with a net monetary recovery against Defendant [and is] entitled to an award of reasonable attorneys’ fees under Government Code § 12965(b) and 42 USC 1998, including a 2.0 multiplier under, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133 . . . .” (Motion, p. 2:2-8.)

1. Prevailing Party

Plaintiff argues that she “is the ‘prevailing party’ under CCP 1032 because she obtained a ‘net monetary recovery’ against Defendant NBA Automotive Inc. of $245,892.” (Motion, p. 8:3-4.) Therefore, Plaintiff maintains that she “is entitled to an award of ‘costs’ against NBA Automotive Inc. under CCP 1033.5, which include reasonable attorneys’ fees by ‘Statute,’ under CCP 1033.5(a)(10)(B), including under Govt. Code 12965(b), 42 USC 1988, PAGA CCP 1021.5 and otherwise by ‘Law’ (CCP 1033.5(a)(10)(C)).” (Id. at p. 8:4-6.)

Defendant does not dispute that Plaintiff is the prevailing party.

Judgment was “ordered and entered in favor of Plaintiff Gloria Guzman and against Defendant NBA Automotive, Inc., dba Hooman Chevrolet of Culver City in the amount of $245,892.00 for compensatory damages.” (11/12/19 Judgment on Jury Verdict, p. 3.) The judgment states that “as the party with the net recovery, Plaintiff Gloria Guzman is the prevailing party.” (Ibid.)

Plaintiff is thus entitled to recover reasonable attorney’s fees.

2. Hourly Rate

Plaintiff identifies the following rates for attorneys and legal staff who worked on this case:

Attorneys

Rate/Hour

Geoffrey C. Lyon

$750

Jeffrey Elkrief

$250

Stephen Young

$550

Alexis Sadakane

$250

Christopher Garcia

$350

Other Attorneys

$250

Legal Assistants

Zain Zaidi

$90

Esther Maddox

$90

Yongdan Liao

$90

Kobe Moreno

$90

Zachary McCort

$90

Rebecca Hoyt

$90

Natalie Ballesteros

$90

Brittany Trinidad

$90

Other Legal Assistants

$90

Defendant does not dispute the hourly rates of Zain Zaidi, Kobe Moreno, Zach McCort, John Henk, or Stephen Young. Instead, Defendant argues that “all fees for the following Lyon Law PC employees should be stricken: ‘other attorneys,’ Christopher Garcia, Alexis Sadkane, Jeffrey Elkrief[,] Esther Maddox, Yongdan Liao, Rebecca Hoyt[,] Natalie Ballestros, Brittany Trindad, ‘other legal assistants.’” (Opp., p. 3:21-23.) Defendant asserts that “said fee requests should be stricken because no declaration was produced laying the foundation for the aforementioned employees qualifications, veracity of the time entries and/or types of work performed are present.” (Id. at p. 3:23-26.) Defendant therefore argues that “the Court has no basis to assess that the hourly rate for these employees is reasonable because the Court has no information regarding said employees experience, employment history or education.” (Id. at p. 3:26-28.)

Defendant also argues that because “Plaintiff’s counsel Lyon has failed to provide any evidence that his hourly rate is reasonable and customary in the community[, t]he Court should award the hourly rate charged by Defendants’ counsel ($350).” (Id. at p. 10:1-3.) Defendant asserts that because its “counsel solely charged Defendants’ [sic] three hundred dollars ($350) per hour due to the complexity of the case[, t]he Court should also fix the rate for plaintiff’s counsel’s work at $350 per hour because it is a reasonable amount given the complexity of this case.” (Id. at p. 10:5-10.)

In reply, Plaintiff asserts there is no declaration for Jeffrey Elkrief because “Mr. Elkrief left the firm in November 2019” and he “could not be reached to sign a declaration.” (Reply, p. 3:13-15.) Plaintiff states that “at the time he was with Plaintiff’s counsel, he was a first year associate who graduated from UCLA law school” and “his time is reasonably valued at $250/hr.” (Id. at p. 3:15-16.) Plaintiff also explains that “Ms. Maddox is a graduate of Princeton University and left Lyon Law or about May 2019, and could not be reached to sign a declaration.” (Id. at p. 3:22-23.) Plaintiff asserts that there are no declarations from the “other” individuals because “most of these ‘other’ individuals are no longer with the firm.” (Id. at p. 4:12-13.)

The Court agrees that Plaintiff only provided declarations from the following attorneys and legal assistants to support their own hourly rates: Geoffrey Lyon (Lyon Decl., ¶¶1-3); Zain Zaidi (Lyon Decl., Ex. 20); Kobe Moreno (Lyon Decl., Ex. 21); Zach McCort (Lyon Decl., Ex. 22); John Henk (Lyon Decl., Ex. 23); Ryan Abele (Lyon Decl., Ex. 24); Stephen Young (Lyon Decl., Ex. 25). For these attorneys and legal assistants, the Court finds that the hourly rates requested by Plaintiff are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

However, without declarations from “other attorneys,” Christopher Garcia, Alexis Sadkane, Jeffrey Elkrief, Esther Maddox, Yongdan Liao, Rebecca Hoyt, Natalie Ballestros, Brittany Trindad, and “other legal assistants,” the Court cannot determine whether their respective hourly rates are reasonable. Even though Plaintiff makes statements regarding the absence of some of these individuals’ declarations in the reply, no declaration or other evidence was provided to support their hourly rates.

Accordingly, the Court DENIES Plaintiff’s motion for attorney’s fees as to “other attorneys,” Christopher Garcia, Alexis Sadkane, Jeffrey Elkrief, Esther Maddox, Yongdan Liao, Rebecca Hoyt, Natalie Ballestros, Brittany Trindad, and “other legal assistants.”

3. Reasonable Hours Incurred

Plaintiff argues that the hours spent are reasonable and are supported by detailed time records. (Motion, p. 9:14.) Plaintiff provides the detailed time records for her counsel as an attachment to the motion. (Id. at p. 9:13, citing Exhibit 4.) Plaintiff’s counsel spent the following hours on this case:

Attorneys

Rate/Hour

Hours

Lodestar

Geoffrey C. Lyon

$750.00

360.96

$270,720.00

Stephen Young

$550.00

47.84

$26,312.00

Legal Assistants

Zain Zaidi

$90.00

74.45

$6,700.50

Ryan Abele

$90.00

0.18

$16.20

Kobe Moreno

$90.00

3.09

$278.10

Zachary McCort

$90.00

8.0

$720.00

John Henk

$90.00

1.45

$130.50

Subtotal

495.97

$304,877.30

(Note: This chart only includes the attorneys/legal assistants who provided declarations to support their hourly rates.)

Defendant argues that “the Court should reduce the amount of fees claimed by Plaintiff’s counsel because the number of hours devoted to the case were inaccurate, unreasonable, and duplicative.” (Opp., p. 4:1-3.)

Defendant maintains that Geoffrey Lyon’s time should be reduced because the time entries are inaccurate. (Id. at p. 4:18-19.) Defendant identifies the following billing entries as examples of unreasonable overbilling:

· September 14-15, 2017: Mr. Lyon spent a total of 25.1 hours performing a non-descript task regarding the initial Complaint (14 hours) and the First Amended Complaint (11.1) in this matter.

o Defendant argues that “both documents are essentially identical with the sole exception that the DFEH Complaint was attached to the First Amended Complaint. Plaintiff counsel seeks $8,325 for attaching (if that was the task performed for 11.1 hours) eight (8) pages to the First Amended Complaint[.]” (Id. at p. 5:10-17, citing McCreary Decl., Exs. A, B.)

· June 7, 2019: Mr. Lyon attempts to bill 11 + 12 + 1.65 + 2.9 + .1 + .4 (28.05 hours) hours for two (2) alleged sanctions motions on one day.

o Defendant argues that “the April 2019 sanctions motion was never filed or served, while the June 2019 sanctions motion was drafted by Stephen Young and consisted of five pages and a half page notice.” (Id. at p. 5:20-21.)

o Defendant asserts that “Mr. Lyon in his declaration supporting the June 2019 motion never states that he performed any work on the June motion.” (Id. at p. 5:22-23.)

o Defendant argues that “said billing entries are obviously incorrect because Mr. Lyon cannot work 28.05 hours in a 24 hour period.” (Id. at p. 5:23-25.)

o Defendant requests that the Court “strike these hours as erroneous and question the veracity of the balance of the billing records in light of these discrepancies.” (Id. at p. 4:25-26.)

· August 13, 2019: Mr. Lyon block bills 10 hours for travel to and from the hotel as well as other pre-trial activities.

o Defendant argues that “it is impossible [to know] what task took a particular amount of time and therefore the entry should be struck.” (Id. at pp. 5:27-6:1.)

Defendant argues that “Plaintiff counsel’s email billing should also be reduced because the email billing is inaccurate.” (Id. at p. 6:3-4.) Defendant maintains that “it is not plausible that each email reviewed took the exact same amount of time (.03) for hundreds of emails in this matter and each sent email took the exact same amount of time to draft (.1).” (Id. at p. 6:4-6.)

In reply, Plaintiff acknowledges that “on June 7, 2019, the same work on the same motion to compel appears to be included twice, so the total time of 28 hours should be reduced to 14 hours.” (Reply, p. 2:23-24.) Plaintiff also states that “the two charges of 10 hours each for the amended complaint appear duplicative and should be reduced by 10 hours at $750/hr.” (Id. at p. 3:1-2.)

In response to the argument regarding emails, Plaintiff asserts that “it is reasonable for the attorneys and legal assistants to have spent this amount of time on average for each email received and sent respectively.” (Id. at p. 4:5-6.) Plaintiff maintains that “in many cases, it actually took much longer than .03 hours to review lengthy emails and longer than 0.1 hours to draft and send emails, so 0.03 hours to review emails and 0.1 hours to send emails is a reasonable and conservative estimate (and would be a much greater number and extremely inefficient to take the time to document in the timesheet the preparation or review of each individual email as it is drafted or reviewed.)” (Id. at p. 4:6-9.)

The Court is required to determine a reasonable lodestar. After a review of the billing entries, the Court finds that Plaintiff’s counsel’s billing entries are inaccurate. This is most evident from the billing entries associated with the emails. The billing entries list that reviewing an email always amounts to 0.03 hours and sending an email always amounts to 0.1 hours, regardless of whether it is performed by an attorney or legal assistant and regardless of the length or content of the email.

(Since most people do not calculate time in hundredths of an hour, the Court takes judicial notice that 0.03 hours equals 1 minute, 48 seconds.)

For example, Geoffrey Lyon reviewed 95 emails, spending 0.03 hours on each, at rate of $750.00 per hour. (Plaintiff’s Compendium of Exhibits, Ex. 4.) Kobe Moreno reviewed 3 emails; Ryan Abele reviewed 6 emails, and Zain Zaidi reviewed 35 emails, each spending 0.03 hours on each, at a rate of $90.00 per hour. (Ibid.) Stephen Young reviewed 38 emails, spending 0.03 hours on each, at a rate of $250.00 per hour. (Ibid.)

Geoffrey Lyon also sent 89 emails, spending 0.1 hours on each, at a rate of $750.00 per hour. (Ibid.) Stephen Young sent 19 emails, spending 0.1 hours on each, at a rate of $250.00 per hour. (Ibid.) Zain Zaidi sent 33 emails, spending 0.1 hours on each, at a rate of $90.00 per email. (Ibid.)

The Court also finds that the billing entries are inaccurate because Plaintiff’s counsel inflates the time entries to recover for work not reasonably or even plausibly performed. For example, on June 7, 2019, the billing entries list that Mr. Lyon worked 28.05 hours in a 24-hour period for two motions for sanctions. Because there are only 24 hours in a day, Mr. Lyon could not have worked 28.05 hours on June 7, 2019. (The Court notes that Plaintiff indicated in its reply that this 28 hours should have only been 14 hours; the Court still questions whether plaintiffs’ counsel actually spent 14 hours on this motion on June 7, 2019.)

Further, a review of the Court’s docket shows that Plaintiff never filed a motion for sanctions in April of 2019; thus, Plaintiff attempts to recover attorney’s fees for work never incurred.

The issue for the Court is how to account for these various errors in Plaintiff’s alleged billing statements. The Court could go through each billing entry and determine an appropriate amount of time. However, given that there appears to be more than 1,000 entries, this would not be practical. “When a voluminous fee application is made the court may make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 40, quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 [internal quotation marks and ellipses deleted].)

Instead, to account for the excessive and inaccurate billing entries, the Court believes it would reach a reasonable lodestar by reducing the requested award by 1/3. The Court therefore calculates the lodestar at $203,251.53 (i.e., $304,877.30 x 2/3.)

4. Multiplier

“The award of a multiplier is in the end a discretionary matter largely left to the trial court.” (Hogar v. Community Development Com'n of City of Escondido (2007) 157 Cal.App.4th 1358, 1371. See also Rey v. Madera Unif. Sch. Dist. (2012) 203 Cal.App.4th 1223, 1242.) A court may enhance the lodestar figure in appropriate cases. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) The court in Ketchum provided an explanation of the rationale behind contingent fee enhancements: " 'A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.' ” (Id. at pp. 1132-1133, quoting Posner, Economic Analysis of Law (4th ed. 1992) pp. 534, 567.) "A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases." (Id. at p. 1133 [internal citations and quotations omitted].)

The following factors may be considered in deciding whether to apply a multiplier:"(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." (Id. at p. 1132.)

However, “the trial court need not consider a multiplier when presented with an inflated, unreasonable fee request.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329, citing Ketchum, supra, 24 Cal.4th at p. 1138 [“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”].)

Plaintiff requests a lodestar multiplier of 2.0 to the fees and costs account for (1) the contingency fee risk; (2) the preclusion of other work it could have done on other cases; (3) the heavy expenses Plaintiff’s counsel advanced for Plaintiff; (4) the exceptional results her counsel obtained; and (5) the delay in recovery of Plaintiff’s counsel’s fees and costs. (Motion, pp. 13:3-16:24.)

Defendant argues that “plaintiff counsel is not entitled to a fee enhancement because the instant matter was not an exceptional case.” (Opp., p. 7:25-26.) Defendant asserts that “plaintiff counsel’s statements regarding the collectability of contingent fee awards are irrelevant because the hourly rate requested by plaintiff counsel already compensates for the contingency risk.” (Id. at pp. 7:28-8:2.) Defendant maintains that “In Mr. Lyon’s declaration, Mr. Lyon admits that his hourly rate already includes a contingent fee risk because Mr. Lyon’s hourly rate is commensurate with other well-respected plaintiff employment lawyers such as Carney Shegerian, James DeSimone and David DeRubertis which also work on contingency.” (Id. at p. 8:2-5.) Therefore, Defendant argues that “the requested hourly rate already includes contingent fee risk because the hourly rate is charged by plaintiff side employment lawyers who necessarily have calculated an extremely high hourly rate to compensate for the risk of non-collection.” (Id. at p. 8:5-8.)

Defendant also argues that Plaintiff’s counsel (1) failed to produce any evidence of the preclusion of other work; (2) failed to demonstrate how there were unique or difficult issues of law in this case; and (3) failed to demonstrate how extraordinary skill was needed for this case. (Id. at p. 8:11-27.) Defendant further asserts that “Plaintiff was moderately successful in her recovery” as she “lost four (4) out of six (6) causes of action tried to the jury and plaintiff’s other five (5) causes of action were either abandoned by plaintiff or dismissed by the court.” (Id. at p. 9:1-3.) Defendant argues that Plaintiff was only moderately successful because she requested over $1.0 million in compensatory damages and punitive damages but was awarded less than $250,000 only in compensatory damages. (Id. at p. 9:5-7.)

This case was not particularly novel nor did it otherwise require special expertise. To the extent such expertise is required, Plaintiff’s counsel’s fee rates appear to incorporate such expertise into the standard lodestar request. There also has been no evidence presented to show that Plaintiff’s counsel was precluded from taking other employment opportunities because of the nature of this case.

“‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . .’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

As indicated above, the Court finds that Plaintiff’s billing entries are inflated and include a request for unreasonable fees. The Court would have been justified in further reducing or denying an award of attorney's fees. However, the Court believes that the reduced lodestar – without a multiplier – provides reasonable compensation for plaintiff’s counsel and “accomplishes ‘the Legislature's expressly stated purpose of FEHA “to provide effective remedies that will eliminate these discriminatory practices.” (Gov.Code, § 12920.)’” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal. App. 4th 359, 394, quoting Flannery v. Prentice (2001) 26 Cal.4th 562, 583.)

The Court declines to apply a multiplier to the attorney fees.

5. Costs

Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Any items not specifically mentioned by statute “may be allowed or denied in the court's discretion.” (Id., subd. (c)(4).)

Plaintiff seeks the recovery of costs in the amount of $20,504.85. (Motion, p. 16:18-24, citing Exhibit 3, “Memorandum of Costs.”) Defendant does not dispute the amount of costs sought by Plaintiff.

Accordingly, the Court GRANTS Plaintiff’s costs in the amount of $20,504.85.

6. Conclusion

The Court GRANTS in part Plaintiff’s motion for attorneys’ fees and costs in the amount of $223,756.38, which includes $203,251.53 for attorneys’ fees and $20,504.85 in costs.

Case Number: BC675851    Hearing Date: January 06, 2020    Dept: 34

SUBJECT: (1) Motion for Judgment Notwithstanding the Verdict

(2) Motion for New Trial

Moving Party: Defendant NBA Automotive, Inc. d/b/a Hooman Chevrolet of Culver City

Responding Party: Plaintiff Gloria Guzman

Defendant’s motion for judgment notwithstanding the verdict is DENIED.

Defendant’s motion for new trial is DENIED.

BACKGROUND:

Plaintiff Gloria Guzman commenced this action on September 14, 2017 and filed her first amended complaint (“FAC”) the next day on September 15, 2017 against Defendant NBA Automotive, Inc. d/b/a Hooman Chevrolet of Culver City for (1) disability discrimination in employment, pursuant to Govt. Code § 12940(a); (2) failure to engage in a timely, good faith, interactive process to determine reasonable accommodation for disability, pursuant to Govt. Code § 12940(n); (3) failure to reasonably accommodate disabilities, pursuant to Govt. Code § 12940(m); (4) medical leave retaliation, pursuant to Govt. Code § 12945.2 (CFRA); (5) medical leave discrimination, pursuant to Govt. Code § 12945.2 (CFRA); (6) failure to pay wages due upon termination, pursuant to Labor Code §§ 202-203 ; (7) failure to pay wages due upon termination- vacation pay, pursuant to Labor Code §§ 202-203, 218, 227.3; (8) discrimination based on age, pursuant to Govt. Code § 12940(a); (9) retaliation for opposing violations of FEHA, pursuant to Govt. Code § 12900, et seq., Govt. Code § 12940(h); (10) retaliation for refusing to participate in conduct violating statute(s) of regulation(s), pursuant to Labor Code §§ 1102.5 & 1102.6; (11) failure to prevent and stop harassment, discrimination, and retaliation, pursuant to Govt. Code § 12940(j), (k); and (12) wrongful termination in violation of public policies.

On August 16, 2019, the jury returned a split verdict, finding for Plaintiff on certain causes of action and for Defendant on other causes of action. In particular, the jury found for Plaintiff and against Defendant on Plaintiff’s causes of action for wrongful termination and FEHA retaliation. The jury found for Defendant and against Plaintiff on Plaintiff’s claims for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, age discrimination and punitive damages.

On November 12, 2019, the Court entered judgment in favor of Plaintiff in the amount of $245,892.00 for compensatory damages and found that she was the prevailing party.

On November 26, 2019, Defendant filed the instant motion for judgment notwithstanding the verdict and notice of intent to move for new trial, and filed memoranda in support of these motions on December 6, 2019.

ANALYSIS:

I. Motion for Judgment Notwithstanding the Verdict

A. Legal Standard

The party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict, and the court shall grant the motion “whenever a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., § 629, subd. (a).) The purpose of such a motion is to challenge whether the opposing party's evidence was sufficient to prove the claims or defenses asserted and embodied by the jury's verdict. (Hauler v. Zogarts (1975) 14 Cal.3d 104, 110.)

In ruling on a motion for judgment notwithstanding the verdict, the court does not weigh the evidence or determine the credibility of witnesses. (Hauter, 14 Cal.3d at p. 110.) In other words, the party in whose favor the verdict was rendered is “entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor.” (Castro v. State of California (1981) 114 Cal.App.3d 503, 507.) “A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

B. Discussion

Defendant moves for a judgment notwithstanding the verdict on the grounds that there was an error in law and there was insufficient evidence to justify the verdict. (JNOV Memorandum, p. 2:21-23.) Specifically, Defendant maintains that Plaintiff (1) “failed to exhaust [her] Fair Employment Housing Act (‘FEHA’) administrative remedies prior to filing the civil lawsuit; and (2) a request for accommodation is not a protected activity and Plaintiff did not oppose any activity . . . or participate in an investigation with the DFEH.” (Id. at p. 2:5-9.)

1. Filing a Timely DFEH Complaint

Defendant argues that “Plaintiff failed to file a DFEH Complaint against her employer, NBA Automotive, Inc. (‘NBA’), within one year of her termination date, May 5, 2017.” (Id. at p. 5:15-16.) Instead, Defendant maintains, “Plaintiff filed a DFEH Complaint in 2017 naming Hooman Enterprises, Inc. as her employer and respondent.” (Id. at p. 5:16-19 [citing FAC, Ex. 1].) Defendant asserts that “Plaintiff’s failure file a DFEH Complaint against NBA [within one year of the last allegedly illegal act] should have resulted in Plaintiff not prevailing on the causes of action for wrongful termination and retaliation because Plaintiff failed to exhaust her administrative remedies under [Government Code section] § 12960(b) (d).” (Id. at p. 5:23-27.)

In opposition, Plaintiff argues that the Court should deny the motion for judgment notwithstanding the verdict because “the DFEH confirmed in Exhibit 4 that Plaintiff timely exhausted her administrative remedies with respect to NBA Automotive, Inc. dba Hooman Chevrolet of Culver City.” (Opp., p. 2:2-3.)

Plaintiff explains the following timeline of events:

· “Plaintiff Guzman was terminated from NBA Automotive, Inc. dba Hooman Chevrolet of Culver City, on May 5, 2017.

· Plaintiff filed her initial DFEH complaint on September 8, 2017, against Hooman Enterprises, Inc., further identified in the body of the DFEH complaint as, ‘Defendant Hooman Enterprises Inc. DBA Hooman Chevrolet (Employer) … 6101 W. Slauson Ave., Culver City, CA.’ (Exh. 1)

· On January 23, 2018, Defendant filed an Answer for ‘Hooman Chevrolet of Culver City,’ without using the full name of the legal entity. (Exh. 2)

· Plaintiff learned the correct legal name of the Defendant in or about October 2018.

· On October 10, 2018, Plaintiff lodged a proposed Order Amending the Complaint substituting the correct legal name of the entity, ‘NBA Automotive, Inc. dba Hooman Chevrolet of Culver City,’ for ‘Hooman Enterprises, Inc. dba Hooman Chevrolet.’

· On January 3, 2018, the Court signed that Order. (Exh. 3)

· In or about April 2019, Defense counsel said Defendant intended to file a motion to dismiss on grounds the DFEH complaint named the wrong defendant.

· On April 25, 2019, Plaintiff filed an Amended DFEH Complaint naming ‘NBA Automotive, Inc. dba Hooman Chevrolet of Culver City.’ (Exh. 4)

· The DFEH wrote it accepted the Amendment retroactive to the initial filing date of September 8, 2017: The amended complaint is deemed to have the same filing date of the original complaint. This is not a new Right to Sue letter. The original Notice of Case Closure and Right to Sue issued in this case remains the only such notice provided by the DFEH. (Cal. Code Regs., tit. 2, § 10022.) (Exh. 4, DFEH Letter of April 25, 2019 . . . )

· On August 6, 2019, Plaintiff emailed Defendant the Amended DFEH Complaint and DFEH letter confirming the Amendment was retroactive to the initial filing date. Defendant inexplicably failed to bring this to the Court’s attention in its motion. (Exh. 5).” (See, Id. at p. 2:4-22.)

In reply, Defendant argues that “there was an incorrect legal basis for the decision and it was not consistent with or not supported by the facts” because the “Code of Regulations Title 2 [section] 10022 does not grant the DFEH authority to accept an amendment to correct the name of a party retroactively after the one year statute of limitations.” (JNOV Reply, p. 2:18-24.) Defendant maintains that because “Plaintiff was submitting an amendment for a name correction after the expiration of the one year statute of limitations[, . . .] Plaintiff’s amended complaint to correct the name of the employer to NBA should not have been accepted and made retroactive by the DFEH as it was untimely filed in April of 2019, well after the expiration of the statute of limitations.” (Id. at p. 4:5-10.)

“Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA. [Citations.]” (Romano v. Rockwell Internal., Inc. (1996) 14 Cal.4th 479, 492.) The exhaustion of administrative remedies is required to enable a speedy resolution of violations of FEHA without the delays attendant to a lengthy civil trial. (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1061.)

“In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1511; see Medix Ambulance Service, Inc. v. Sup.Ct. (2002) 97 Cal.App.4th 109, 116.) However, if a person is not named as the offending party in the DFEH complaint but described in the body of the complaint as a perpetrator of discriminatory acts the individual is subject to suit under the FEHA on the grounds that if the DFEH had investigated, that individual would have been put on notice of the charges, and would have had an opportunity to participate. (Cole, 47 Cal.App.4th at 1511; Saavedra v. Orange County Consolidated Transp. Service Agency (1992) 11 Cal.App.4th 824, 826-828.)

“The function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts. A strict rule [that only a party named in the caption of the administrative complaint may be sued, regardless of any other circumstances] would harm victims of discrimination without providing legitimate protection to individuals who are made aware of the charges through the administrative proceeding. If [individual defendants] are described in the charge as the perpetrators of the harm, they can certainly anticipate they will be named as parties in any ensuing lawsuit.” (Cole, 47 Cal. App. 4th at 1510 [quoting Martin v. Fisher (1992) 11 Cal. App. 4th 118, 122].)

Further, Government Code section 12960 provides for an extension of time to file a DFEH complaint in the event of misidentification of the employer. Government Code section 12960, subdivision (d)(2) states:

“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows:

[¶]

(2) For a period of time not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.”

Code of Regulations, Title 2, section 1022 also addresses amendments to DFEH complaints and the effect amendments have to the original filing date of DFEH complaints. Code of Regulations, Title 2, section 1022 provides, in pertinent part:

(a) The department may amend an open complaint of discrimination to:

[¶]

(3) cure technical defects or omissions, including correcting a case number, address, or name of a party;

(b) When an open complaint of discrimination has been amended:

(1) respondents shall be given sufficient notice and time to respond to new allegations;

(2) the filing date of the amended complaint remains the same as the original filing date.

[¶]

(d) The department shall amend closed employment discrimination complaints as requested by complainants or their counsel.

(e) When the department amends a closed complaint, the department shall neither reopen the complaint nor make an administrative determination on the validity, retroactivity, or merits of the amendment.

(f) When a closed complaint is amended by the department, the original filing date and right-to-sue notice shall remain in effect, as shall the original statute of limitations for filing a private lawsuit.”

The Court finds that Plaintiff timely exhausted her administrative remedies with Defendant before filing the civil complaint because the DFEH confirmed that the amendment to the DFEH complaint naming the proper defendant applied retroactively to the initial September 8, 2017 filing date. (See Opp., Exs. 4, 5.) Further, even if Defendant’s proper name was not initially used to name the offending party in the DFEH complaint, Defendant was described as a perpetrator of discriminatory acts, Defendant would have been put on notice of the charges, and Defendant would have had an opportunity to participate, had DFEH investigated. (See Cole, 47 Cal.App.4th at 1511; Saavedra v. Orange County Consolidated Transp. Service Agency (1992) 11 Cal.App.4th 824, 826-828.) Accordingly, the judgment finding for Plaintiff against Defendant for the wrongful termination and retaliation claims is supported by sufficient evidence. The Court DENIES Defendant’s motion for judgment notwithstanding the verdict in relation to the exhaustion of administrative remedies.

 

2. Retaliation

Defendant also argues that “the Court should grant [its] motion for judgment notwithstanding the verdict as to the cause of action for retaliation because a request for accommodations is not a protected activity and Plaintiff did not oppose any activity or participate in an investigation with the DFEH.” (JNOV Memorandum, p. 6:1-5.) Defendant maintains that “Plaintiff failed to justify a cause of action for a retaliation claim under the California Fair Employment and Housing Act (FEHA) since there was an absence of an allegation she was engaged in protected activity.” (Id. at p. 6:24-26.) Defendant argues that “Plaintiff admits that she did not ever make a complaint to her employer at anytime[sic], let alone, any complaint regarding conduct which is prohibited by the FEHA and did not testify or assist in any proceeding under the FEHA.” (Id. at p. 6:20-22.)

Defendant cites to Kelley v. Corrections Corp. of America (E.D. Cal. 2010) 750 F.Supp.2d 1132 for the proposition that “requesting [an] accommodation for her claimed disability [is] not a protected activity within the meaning of the statute.” (JNOV Memorandum, p. 6:15-19.) However, Plaintiff maintains that “Defendant NBA’s cited case of Kelley v. Corrections Corp. of America (2010 E.D. CA) 750 F.Supp.2d 1132 was decided in 2010 before the 2015 amendment adding subsection (m)(2) and is therefore inapplicable.” (Opp., p. 5:1-3.) Plaintiff argues that her “request for and exercise of medical leave and resultant termination occurred in 2017, while subsection (m)(2) was operative, prohibiting retaliation for requesting or using an accommodation for a disability.” (Id. at p. 5:3-5.)

Government Code section 12940, subdivision (h) identifies an unlawful employment practice as:

“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

Government Code section 12940, subdivision (m)(2), which was added to the Government Code in 2015, further identifies an unlawful employment practice as:

“For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.” (See also Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245.)

The Legislature amended this section in 2015 “ ‘to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted.’ ” (Moore, 248 Cal.App.4th at 245 [quoting Assem. Bill 987, §1, subd. (d)].)

Kelly was a district court case, and therefore was, at best, of persuasive value. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 190.) Given the 2015 amendment to the law, Defendant’s citation to Kelly v. Corrections Corp. of America (E.D. Cal. 2010) 750 F.Supp.2d 1132 is no longer even persuasive.

Government Code section 12940, subd. (m)(2) provides that it is an unlawful employment practice if an employer retaliates or discriminates against an employee for requesting an accommodation. The jury in this case was properly instructed and evidence was properly admitted at trial regarding the retaliatory actions by Defendant in response to Plaintiff requesting and taking time off of work for her disability.

The Court DENIES Defendant’s motion for judgment notwithstanding the verdict as to the retaliation claim.

II. Motion for New Trial

A. Legal Standard

“A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co. (1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Code of Civil Procedure sections 657 and 659. Under Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.

(Code Civ. Proc., § 657.)

B. Discussion

Defendant requests a new trial on the same grounds it requested a judgment notwithstanding the verdict. Specifically, Defendant requests a new trial because “(1) Plaintiff . . . failed to exhaust [her] FEHA administrative remedies prior to filing the civil lawsuit; and (2) A request for accommodation is not a protected activity and Plaintiff did not oppose any activity or participate in an investigation with the DFEH.” (New Trial Memorandum, p. 2:3-8.)

As explained earlier, Plaintiff did not fail to exhaust her FEHA administrative remedies prior to filing the civil lawsuit and that a request for accommodation is a protected activity under the Government Code. Therefore, Defendant did not demonstrate that an error of law occurred at trial nor that the evidence is insufficient to justify the verdict.

The Court DENIES Defendant’s motion for new trial.