Opinion
B227487
08-02-2011
PASCUAL MARTINEZ, Plaintiff and Respondent, v. CHRISTOS SMYRNIOTIS et al., Defendants and Appellants.
Law Office of Lorraine Anderson and Lorraine Anderson, for Defendants and Appellants. Law Offices of Morse Mehrban, Morse Mehrban and Rummel Mor Bautista, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC415418)
APPEAL from an order of the Superior Court of Los Angeles County. Mel Red Recana, Judge. Affirmed.
Law Office of Lorraine Anderson and Lorraine Anderson, for Defendants and Appellants.
Law Offices of Morse Mehrban, Morse Mehrban and Rummel Mor Bautista, for Plaintiff and Respondent.
Christos and Mary Smyrniotis (collectively Smyrniotis) appeal a postjudgment award of attorney fees to Pascual Martinez. Following a bench trial, the court awarded Martinez $1,000 in damages for violations of the California Disabled Persons Act (Civ. Code, § 54), and $8,000 in attorney fees, pursuant to section 54.3, subdivision (a).
All statutory references are to the Civil Code unless otherwise indicated.
Smyrniotis contends that the trial court abused its discretion in that the fees are excessive and unreasonable.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Martinez filed a complaint against Smyrniotis alleging violations of the California Disabled Persons Act (§ 54 et seq.). Smyrniotis made an offer to compromise pursuant to Code of Civil Procedure section 998 in the amount of $4,000, which plaintiff did not accept. After a bench trial, judgment was entered in favor of Martinez in the amount of $1,000 plus attorney fees and costs.
Martinez moved for an award of attorney fees in the amount of $13,072.50. The motion was supported by a 4-page itemized billing summary and a declaration describing counsel's experience and expertise.
Smyrniotis filed opposition contending only that Martinez was not entitled to recover fees because he did not obtain a judgment more favorable than the Code of Civil Procedure section 998 offer.
Martinez argued in his reply that he had incurred $4,342.50 in attorney fees and $70 in costs as of December 18, 2009, and therefore had obtained a more favorable judgment than the offer to compromise.
Smyrniotis filed a supplemental opposition disputing the amount Martinez billed for a deposition prior to the settlement offer. Smyrniotis argued that a reduction of $800 was appropriate thereby reducing Martinez's preoffer attorney fees to $3,542.50 and $70 in costs.
During the hearing on the motion for attorney fees, Smyrniotis informed the court that the judgment had already been paid but the attorney fees were still in dispute. In opposing the fee motion, Smyrniotis did not contest the accuracy of the submitted billing. The trial court noted the lack of any other substantive opposition to the motion and informed Smyrniotis as follows: "Now, my problem with your paper is that you simply said that they are not entitled to attorney's fees, which is a good position. But then it should be followed up by even if, in fact, he is entitled to attorney's fees, then you need to address the hours that he's asking because I don't have that." Counsel for appellants informed the court that a supplemental brief had been filed disputing time claimed for attorney fees. The hearing was continued for 10 days to clarify a purported request by respondent to the court, to dismiss.
The court granted Martinez's motion for attorney fees in the amount of $8,000. The order stated that even if the court accepted the reduced amount of $3,542 for preoffer attorney fees as proposed by Smyrniotis, with the addition of the $1,000 judgment, the total amount exceeded that of the Code of Civil Procedure section 998 offer of $4,000. Judgment in the amount of $9,261 was granted comprised of $1,000 in damages, $8,000 in attorney fees, and $261 in costs.
This appeal followed.
DISCUSSION
Appellants contend: that the attorney fees award of $8,000 is unreasonable because respondent's counsel (Mehrban) files only this one type of case, the issues are not novel for him; Mehrban did not have to forego other employment in the pursuit of this case; the case did not result in any benefit to the public; and most of the work performed by Mehrban consisted of "menial tasks easily performed by an office staff person or a secretary or paralegal." Appellants also contend that the fee motion was not adequately documented with billing records detailing the hours spent and the services provided. Additionally, appellants assert that the granting of an eight-fold fee award was an abuse of discretion.
Smyrniotis did not challenge the amount of the costs award.
Respondent argues that the record does not support appellants' contentions that the trial court improperly determined the attorney fee award.
I. Standard of Review
Section 54.3 creates a private cause of action for damages under the Disabled Persons Act and provides for the recovery of "attorney's fees as may be determined by the court." (§ 54.3 subd. (a).) The trial court has latitude in awarding attorney fees, and its determination will be upheld unless there is a manifest abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Discretion is abused when in the "exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered." (Mallett v. Superior Court (1992) 6 Cal.App.4th 1853, 1874.)
Although appellants contend that the facts of this case are so egregious that we should conduct a de novo review, it is well settled that an appellate court reviews the amount of an attorney fee award for abuse of discretion. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
II. The Trial Court Did Not Abuse Its Discretion in Determining the Attorney Fee Award
In determining the amount of reasonable attorney fees to be awarded under section 54.3, the trial court was required to follow the "lodestar adjustment" method, which the Supreme Court approved in Serrano v. Priest (1977) 20 Cal.3d 25, 48-49. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) The lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) To determine the reasonable hourly rate, the court looks to the "hourly rate . . . prevailing in the community for similar work." (Ibid.)Using the lodestar as the basis for the attorney fees award "anchors the trial court's analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary." (Ibid.)
The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.)
The California Supreme Court has further instructed that attorney fee awards "should be fully compensatory." (Ketchum v. Moses, supra, 24 Cal.4th at p. 1133.) Thus, in the absence of "circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee." (Ibid.)
The Court of Appeal has explained, "The challenge to the trial courts is to make an award that provides fair compensation to the attorneys involved in the litigation at hand and encourages litigation of claims that in the public interest merit litigation, without encouraging the unnecessary litigation of claims of little public value." (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1172; accord, Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 446.) The experienced trial judge is in the best position to determine the value of legal services rendered. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579; Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
As the party challenging the attorney fees award, the burden is on appellants to provide an adequate record so that we can determine whether the trial court abused its discretion. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 448; see Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141.)
Respondent's motion for fees was accompanied by billing records which consisted of a 4-page listing of the tasks performed by various individuals and their respective billing rates. Mehrban also submitted a declaration which detailed his experience and expertise in this particular type of litigation.
According to Mehrban, he has "litigated thousands of cases such as this in both federal and California courts" and very few billing entries relate to discovery or legal research. This was a routine case and the vast majority of the billing entries are for small increments of time spent on the case, with court hearings, trial, and motion practice to obtain attorney fees constituting the larger blocks. The case was litigated in under one year for a total of 51.2 hours spread among four lawyers and four law clerks. In his declaration Mehrban stated that the billing rates are comparable to others in the community performing similar work. The court awarded a total of $8,000. A declaration of plaintiff's counsel is sufficient evidence of the market rates charged in the legal community. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 902-903.)
Given the trial court's wide latitude in fashioning an award that it deems fair, we cannot say that the court abused its discretion. Mehrban's admitted specialization in this type of litigation and his ability to achieve a favorable result with relatively little effort and little expenditure of judicial resources justifies the application of a downward lodestar adjustment. It appears that the economies of scale Mehrban has achieved by specializing in this type of litigation benefitted appellants in this case, and we cannot see any improper methodology, gross unfairness, or "palpable abuse of discretion" by the trial court. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 324.)
Appellants argue that an eight-fold fee award is particularly offensive and a clear abuse of discretion by the trial judge, because the trial court awarded only $1,000 in damages. But, when a plaintiff sues to vindicate statutory rights to be free of discrimination, the amount of compensatory damages awarded to the plaintiff is not a decisive factor in determining the award of attorney fees. "[A] slight monetary recovery will not control assessment of the appropriate amount of attorney fees where a constitutional right is vindicated or a significant public benefit conferred." (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 426 (Harman).)The plaintiff in Harmon received over $1 million in attorney fees following a jury award of $30,300 for employment discrimination. (Id. at p. 415.)
Similarly, in an action to redress employment discrimination based on race and national origin, a jury awarded $40,000 in compensatory damages (reduced by stipulation to $37,500) for the defendant's violation of the Fair Employment and Housing Act, and failed to prove causes of action for retaliation and discriminatory denial of promotion. (Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at pp. 442-443.) Plaintiff Vo was awarded attorney fees of $470,000, reflecting a reduction of $17,500 for the unsuccessful two causes of action. (Id. at p. 444.) The fee award was upheld on appeal, over defendant's objections that "plaintiff's overall success was de minimis." (Id. at p. 447.) In Engel v. Worthington (1997) 60 Cal.App.4th 628, 630-632, a plaintiff whose Unruh civil rights were violated, was awarded $250 in damages, and the trial court's outright denial of plaintiff's $80,875 fee request was reversed on appeal, because a prevailing plaintiff is entitled by law to an attorney fees award.
Here, we cannot say that the court abused its discretion in awarding attorney fees.Appellants assert that this matter properly belonged in small claims court. But, appellants present no argument or legal authority for this bare assertion and the issue is waived. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775.)
Appellants request we take judicial notice of 1,552 cases filed by Mehrban in Los Angeles County over the past few years, as well as an individual matter from the Superior Court of Orange County. In neither instance did appellants comply with the California Rules of Court which require that a party seeking to obtain judicial notice must serve and file a "separate motion with a proposed order." (Cal. Rules of Court, rule 8.252(a)(1).) While this court may in its discretion take judicial notice of these matters, we decline to do so. (Evid. Code, § 459; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881-882; Cal. Rules of Court, rule 8.252(a).)
DISPOSITION
The order awarding attorney fees is affirmed. Respondent to recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
DOI TODD
We concur:
P. J.
BOREN
J.
CHAVEZ