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This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 02:50:22 (UTC).

GLORIA MOSQUERA VS. HANI MAMMO

Case Summary

On 09/20/2017 GLORIA MOSQUERA filed a Contract - Other Contract lawsuit against HANI MAMMO. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN P. PFAHLER. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7995

  • Filing Date:

    09/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Chatsworth Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN P. PFAHLER

 

Party Details

Plaintiff

MOSQUERA GLORIA

Defendants

HAMMO HANI

MAMMO HANI

Attorney/Law Firm Details

Plaintiff Attorneys

MARTIROSYAN P.C.

MARTIROSYAN EDGAR

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 04/02/2019
  • PLAINTIFF?S MOTION TO COMPEL DISCOVERY RESPONSES TO PLAINTIFF?S REQUEST FOR PRODUCTION OF DOCUMENTS AND FORM INTERROGATORIES, AND TO DEEM ADMITTED THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF?S REQUESTS FOR ADMISSIONS; REQUEST FOR SANCTIONS; DECLARATION; Filed by GLORIA MOSQUERA (Plaintiff)

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Order to Show Cause Re: (Sanctions for Plaintiff's Failure to File and Obtain Entry of Default as to all Non-Responding Defendants) - Not Held - Vacated by Court

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Case Management Conference - Held

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Order to Show Cause Re: (Sactions for Defendant's Failure to Appear) - Not Held - Vacated by Court

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Case Management Conference - Not Held - Vacated by Court

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Order - Case Determined Non-Complex (Sanctions for Plaintiff's Failure to File and Obtain Entry of Default as to all Non-Responding Defendants) - Held - Continued

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  • 12/27/2018
  • at 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Order to Show Cause Re: (Sanctions for Defendant's Failure to Appear) - Not Held - Vacated by Court

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  • 12/27/2018
  • Minute Order ((Order - Case Determined Non-Complex Sanctions for Plaintiff's...)); Filed by Clerk

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  • 12/26/2018
  • Notice of Posting of Jury Fees; Filed by GLORIA MOSQUERA (Plaintiff)

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  • 12/03/2018
  • Substitution of Attorney

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19 More Docket Entries
  • 04/18/2018
  • Declaration; Filed by Plaintiff/Petitioner

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  • 02/16/2018
  • at 08:30 AM in Department F49; Case Management Conference (Conference-Case Management; OSC Set) -

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  • 02/16/2018
  • Minute order entered: 2018-02-16 00:00:00; Filed by Clerk

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  • 12/22/2017
  • at 00:00 AM in Department Legacy; (Request to Enter Default; ENTERED) -

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  • 12/22/2017
  • Default Entered; Filed by GLORIA MOSQUERA (Plaintiff)

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  • 10/27/2017
  • Proof of Service (not Summons and Complaint); Filed by GLORIA MOSQUERA (Plaintiff)

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  • 09/20/2017
  • Summons; Filed by null

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  • 09/20/2017
  • Complaint filed-Summons Issued; Filed by null

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  • 09/20/2017
  • Notice of all purpose case assignment and notice of case management conference; Filed by Clerk

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  • 09/20/2017
  • Civil Case Cover Sheet; Filed by GLORIA MOSQUERA (Plaintiff)

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Tentative Rulings

Case Number: PC057995    Hearing Date: July 24, 2020    Dept: F49

Dept. F-49

Date: 7/24/20

Case # PC057995

Case Name: Gloria Mosquera v. Hani Mammo

Calendar #2

Trial Date: already held (concluded on 10/1/2019)

ATTORNEY FEES AND COSTS

MOVING PARTY: Plaintiff Gloria Mosquera

RESPONDING PARTY: Defendant Hani Mammo

RELIEF REQUESTED

Attorney fees and costs

· $80,587.50 in attorney fees

· $1,648.51 in costs

SUMMARY OF ACTION

This is a breach of contract and wage and hour employment action.

The case arises out of an oral agreement between the Plaintiff Gloria Mosquera (“Plaintiff”) and the Defendant Hani Mammo (“Defendant”) regarding services provided to and ownership of a restaurant, El Camaron Campeon (the “Restaurant”). The parties dispute the substance of the oral agreement. Plaintiff contends that the Defendant made certain promises of payment and that she was hired as an employee to serve as, inter alia, a chef at the Restaurant. Defendant asserts that the parties were 50-50% partners and that the Plaintiff was not hired as an employee. There was no documentation of an agreement.

On September 20, 2017, Plaintiff filed her operative complaint asserting 13 causes of action: (1) breach of contract; (2) breach of implied contract; (3) fraud; (4) negligent misrepresentation; (5) failure to pay minimum wages; (6) overtime violations; (8) failure to provide meal breaks; (9) failure to provide rest breaks; (10) failure to pay all wages as earner; (11) failure to pay all wages upon termination; (12) failure to issue correct wage statements; and (13) Business and Professions Code violation.

On September 30, 2019 and October 1, 2019, the Court conducted a bench trial.

On October 25, 2019, the Court issued its tentative statement of decision.

On January 23, 2020, the Court adopted its tentative statement of decision as the final statement of decision.

In the statement of decision, the Court largely found in Plaintiff’s favor.

On March 2, 2020, the Court ordered the judgment in this action as follows: (1) finding in Plaintiff’s favor on the first and second causes of action with $15,000 in damages; (2) Plaintiff voluntarily dismissed the third, fourth, fifth, eighth and ninth causes of action; (3) finding in Plaintiff’s favor on the sixth, seventh, and tenth causes of action with $5,696 in damages ($5,120 in minimum wages and $576 in overtime); (4) finding in Plaintiff’s favor on the eleventh cause of action; (5) finding in Defendant’s favor on the twelfth cause of action; (6) finding in Plaintiff’s favor on the thirteenth cause of action but awarding no damages because they are duplicative of other damages; (7) awarding Plaintiff $3,840 in waiting penalties. In total, the Court entered judgment for Plaintiff against Defendant in the amount of $24,536.00, inclusive of the $15,000.00 based on the contractual causes of action, $5,120.00 in minimum wages and $576.00 in overtime compensation based on the employment causes of action, and $3,840.00 in waiting time penalties. The Court also noted that “Plaintiff may further be awarded costs of suit, if any, upon timely filing of costs, bills, and motions.” (Judgment ¶ 12.)

On April 1, 2020, Plaintiff filed this motion seeking an award of $80,587.50 in attorney fees ($51,975 for fees incurred including preparation of motion and anticipated $1,750 for fees anticipated to prepare reply and appearance time all multiplied by a 1.5 multiplier) and $1,648.51 in costs.

On June 3, 2020, the Court continued the hearing date from July 10, 2020 to July 24, 2020.

On July 13, 2020, Defendant opposed.

Plaintiff did not file a reply. Plaintiff’s reply was due on July 17, 2020, i.e., five court days before the hearing date. (Code Civ. Proc., § 1005, subd. (b).)

RULING

GRANTED IN REDUCED AMOUNT OF $36,850 IN ATTORNEY FEES ONLY; DENIED WITHOUT PREJUDICE AS TO COSTS.

Notice of motion is defective

The Court independently notes that Plaintiff’s notice of motion is defective.

The notice of motion must state in the first paragraph exactly what relief is sought and why (what grounds). (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a).)

Here, Plaintiff’s motion states a general request “for an order awarding Plaintiff attorneys’ fees and costs of litigation incurred in this action.” (Motion i:27.) Plaintiff fails to identify the specific amount for attorney fees and costs in the notice of motion. Instead, Plaintiff does not discuss the specific amount she seeks until the memorandum of points and authorities, and do not do so clearly in the beginning. (See motion 8:4-7 [first statement of amount of fees without multiplier], 10:6-11 [summary of requested fees].) This request is insufficient to put Defendant and the Court on notice of the amount of the requested fees.

The Court will address this issue at the hearing with Plaintiff’s counsel. However, considering that Defendant does not object on this bases in his opposition, the Court continues below.

Plaintiff’s motion and notice of continuance

The Court independently notes that it does not believe that Defendant has proper notice of this hearing.

Here, the proof of service for the motion reveals that Plaintiff served the motion and notice of continuance on Defendant by email and mail on April 30, 2020.

First, Plaintiff’s proof of service does not list the email address used for Defendant’s counsel. Therefore, the Court questions whether email service was completed or this option was incorrectly selected.

Second, Plaintiff’s proof of service shows that Plaintiff completed mail service at an incorrect address. Plaintiff served the papers on Defendant’s counsel at 8201 Foothill Boulevard, Unit C, Sunland California 91040. Defendant’s counsel has filed papers with the Court listing its street address at “8201” and at “8209.” (See Trial Brief filed on September 18, 2019 [“8209”] and Objections to Court’s Proposed Statement of Decision [“8201”].) Additionally, the website for Defendant’s counsel indicates that the address is “8209.” (See https://abalawgroup.com/.) Therefore, Defendant does not appear to have proper service of this motion, though the Court acknowledges that Plaintiff does not appear to be aware of an address change.

Finally, on June 3, 2020, the Court continued this hearing from July 10, 2020 to July 24, 2020 and ordered Plaintiff to give notice to Defendant. Plaintiff did not file any documentation showing proof of service of this notice of this continuance. Although the certificate of mailing shows that the Court mailed notice of the continuance to Defendant at the “8209” address, given that most counsel’s limited physical availability to their offices because of Covid-19, the Court is concerned about a lack of notice.

Therefore, the Court is concerned that Defendant does not have proper notice of Plaintiff’s motion papers or the continuance of hearing.

Nevertheless, Defendant does in fact oppose and his opposition does not raise any service issues.

Accordingly, the Court overlooks any possible issue with notice. The Court reminds the parties that proper notice is essential for every motion, especially considering the uncertainty caused by Covid-19.

Defendant’s opposition

The Court independently notes that it does not believe that Plaintiff has proper notice of Defendant’s opposition.

Defendant did not file a proof of service of his opposition, and instead merely filed it.

As of July 16, 2020, Plaintiff has not filed a reply, which is due on July 17, 2020.

If Plaintiff does not file a reply, the Court will inquire from Plaintiff if she wants additional time to do so.

If Plaintiff does file a reply, the Court addresses the merits as follows.

Legal standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(B), attorney fees when authorized by 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.)

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.)

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

Merits – fees

Plaintiff seeks attorney fees as the prevailing party pursuant to Labor Code sections 1194, subdivision (a) and 218.5.

“A prevailing party under section 1032 is not necessarily a prevailing party under a separate attorney fee statute.” (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047.) The right to recover attorney’s fees is governed by the fee-shifting statute itself, rather than a rigid adherence to Code of Civil Procedure section 1032. (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.)

Here, Plaintiff relies on Labor Code sections 1194, subdivision (a) and 218.5.

Labor Code section 1194 provides that a judge must award attorney fees for an employee who receives less than legal minimum wage or overtime compensation to which employee is entitled is entitled. Labor Code section 218.5 provides that a judge must award attorney’s fees to prevailing employee in any action brought for nonpayment of wages, fringe benefits, or health and welfare or pension fund contribution

These statutes are sufficient to entitle Plaintiff to her attorney fees. Additionally, Plaintiff is the prevailing party based on the outcome of this case including the Court’s judgment in Plaintiff’s favor.

The Court rejects Defendant’s multiple arguments that Plaintiff is not entitled to attorney fees because: (1) the Court’s decision does not provide for recovery of attorney fees (opposition 5:12-18); (2) Plaintiff is not the prevailing party because she did not prevail on many claims and/or the trial ended in a “draw” (id. 5:19-6:21); and (3) the Court should not award any fees because Plaintiff’s judgment falls short of the jurisdictional threshold in an unlimited case (id. 6:22-7:2.)

First, whether the Court’s decision specifically said “attorney fees” is immaterial and as discussed above “fees” are allowable as “costs” pursuant to Code of Civil Procedure section 1033.5. Additionally, there are relevant statutes that provide for her to collect her attorney fees. Second, although Plaintiff did not succeed on all of her claims, to state that she is not the prevailing party ignores the facts of this case. Plaintiff received a judgment in her favor and the amount is still significant. Comparing the amount that she received with what she sought ignores that she still substantially prevailed on the claims, even if her damages were less than requested. Finally, the Court does not have the discretion to deny the fees based on jurisdictional issue. The Court finds the denial of attorney fees are inappropriate in this case given Plaintiff’s reasonable and good faith belief in a recovery that exceeded the jurisdictional threshold of a limited case and the total amount was less than $500 from the jurisdictional threshold. (See Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1052-1053.)

Accordingly, Plaintiff is entitled to her attorney fees.

Plaintiff seeks $53,725 for 148.5 hours billed to Plaintiff, plus, five hours of additional time anticipated to prepare a reply and appear for the hearing on the instant motion. According to Plaintiff’s counsel’s declaration, Plaintiff was represented by three counsel throughout this litigation though key information about their work is unclear (e.g., no itemized breakdown of hours by counsel):

Name

Hourly rate

Legal Experience

Hours Billed

Edgar Martirosyan

$350

12 years (Martirosyan Decl. ¶ 3.)

Unknown

Azniv Ksachikyan

$350[1]

21 years (Martirosyan Decl. ¶ 8.)

Unknown, but presumably 20 hours (Martirosyan Decl. Ex. A at “9/30/2019 – 10/1/2019” entry.)

Ani Khodaverdian

Unknown

2 years[2]

5 hours (Martirosyan Decl. Ex. A at “4/2019” entry.)

Defendant does not challenge to the reasonableness of the hourly rates. (See opposition 7:27-28.)

The $350 hourly rate is reasonable given the nature of the litigation and counsel’s experience. However, the Court finds that Plaintiff does not justify Ani Khodaverdian’s hourly rate, which the Court assumes to be $350 based on the overall calculations, given her lack of experience. A reduction of hours for Khodaverdian could be necessary to adjust for the inflated hourly rate, but given Defendant does not challenge the rate, the Court finds the $350 hourly rate reasonable for all counsel.

Defendant generally challenges whether all of the hours as stated were for the claims that Plaintiff prevailed on. (See opposition 7:10-22.) The Court does not find Defendant’s arguments persuasive considering Plaintiff still had to do the work on these claims, even if she was successful based on an alternative theory (wage statement claim) or on another claim (unfair business practice claim). The fact that Plaintiff dismissed some of her claims does not mean that some of the work done for those claims was not done in furtherance of her prevailing claims.

Regarding the hours, Plaintiff’s counsel did not contemporaneously log the incurred hours. (Martirosyan Decl. ¶ 14.) The Court has no reason to doubt that Plaintiff’s counsel compiled a time sheet in what counsel believed to be a “light most favorable to Plaintiff,” including by reducing the hours. (Ibid.) However, doing so after the fact creates a possibility of inaccurate hours. Even ignoring this risk, the hours still must be reasonable and they are not as discussed below.

Defendant does not discuss any individual tasks. However, the Court does so to ensure a just award. When examining the hours in conjunction with the requested lodestar fee, the Court reduces certain items because they are unreasonable especially given counsel’s experience or the work performed:

Date of Entry

Time

Activity

Why Reduced

9/2017

16 hours

Additional meetings w/client; additional research re causes of action; drafting, revising and finalizing Complaint in preparation for filing same.

The block billing makes this entry difficult to assess, but given the simplicity of the complaint (6 pages of factual pleadings and 18 pages of asserted causes of action), the time is inflated.

4/2019

5 hours

Prepared Plaintiff’s Motion to Compel Responses to Plaintiff’s Discovery, including supporting Declaration (prepared by Associate).

Excessive considering simplicity of motion and $350 hourly rate.

9/2019

7 hours

Conduct extensive research and analysis of relevant law (both case law and statutes) in preparation for trial.

This vague entry is especially unclear given the 6 hours incurred in a separate entry to prepare the trial brief.

9/30/2019 – 10/1/2019

40 hours (20

hours per

Attorney)

Non-jury Trial, including meetings w/co-counsel Azniv Ksachikyan.

Excessive considering total trial time was 5 hours. (See October 25, 2019 minute order.) Additionally, it is impossible based on lack of detail to assess whether the tasks completed were duplicative.

4/1/2019

4.5 hours

Draft, review and file attorneys’ fees Motion and Supporting Declaration.

Excessive considering simplicity of motion and $350 hourly rate.

anticipated

5 hours

Reviewing Defendant’s opposition, preparing a reply, and appearing at the hearing

Excessive considering simplicity of motion and $350 hourly rate.

Accordingly, the Court finds it necessary to reduce the total hours by 37.5 hours.

Additionally, the Court finds it necessary to further reduce the fees because apportionment of fees is appropriate considering Plaintiff is not entitled to attorney fees on the oral breach of contract action. The breach of contract action is not so interrelated to make it impossible to separate that claim from the Labor Code violations. (See Pellegrino v Robert Half Int’l, Inc. (2010) 182 Cal.App.4th 278, 289–290 [in action for wage and hour violations and for unfair competition, judge decreased lodestar figure by specified percentage to account for unfair competition claim for which fees were not recoverable]. Accordingly, the Court finds it necessary to reduce the total hours by another 10 hours.

Finally, according to the May 30, 2019, minute order, the Court already awarded Plaintiff $250 in sanctions for the motion to compel. Plaintiff should not be entitled to double-collect. The Court therefore deducts $250 in fees.

Therefore, the Court finds the lodestar amount to be $36,850 (153.5 incurred hours – 47.5 excessive hours at a $350 hourly rate – $250 deduction for already awarded sanctions.)

Plaintiff requests a 1.5 lodestar multiplier.

The facts as presented indicate that this case was a simple breach of contract case and employment action involving no novel issues of law or facts. The Court finds there is no basis to award a multiplier because the time and skill of counsel, as well as, the contingent nature of the representation, are compensated with fees and the fee rates (identified above). There is nothing before the Court to suggest the relatively straightforward case required extraordinary legal skill and/or required counsel to bear unnecessary risk. While the Court acknowledges that Plaintiff’s counsel needed to prepare more documentation than usual in this type of case (see motion 9:12-21), that is insufficient to justify a multiplier.

Therefore, the Court denies Plaintiff’s request for a 1.5 multiplier.

Accordingly, the Court awards $36,850 in attorney fees.

Merits - costs

Plaintiff seeks $1,648.51 in costs. Defendant does not oppose this request.

Although Plaintiff’s declaration itemizes the costs incurred, Plaintiff failed to file a memorandum of costs.

Therefore, the Court does not award any costs at this time. Plaintiff may pursue to recover these costs pursuant to statutory guidelines to the extent timely done.

Conclusion

The Court grants Plaintiff’s motion in part, awarding $36,850 in attorney fees.

The Court denies Plaintiff’s request for costs without prejudice.

The Court orders Plaintiff to give notice and file proof of service of such

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