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Category: Fees & Judicial Discretion

Defense ‘Prevailing Party’ in DVPA Case Dropped by Plaintiff

October 9, 2021

A recent Metropolitan News story, “Defendant Was ‘Prevailing Party’ in Action Under DVPA Where Plaintiff Dropped Case,” reports that a judge erred in finding that a defendant was not the “prevailing party” in a civil action brought to impose a domestic violence restraining order on him, the Court of Appeal for this district has held, proclaiming that he did prevail even though the circumstances were that the plaintiff dismissed her petition after gaining such an order in a separate criminal proceeding.

But, Justice Anne H. Egerton of Div. Three said in an unpublished opinion, that does not mean that the order by Los Angeles Superior Court Judge Jonathan L. Rosenbloom denying an award of attorney fees to the defendant in the civil case need be reversed.  Such an award is discretionary, she noted, and, under Art, VI, §13 of the state Constitution, reversal is called for only where an error has resulted “in a miscarriage of justice” which, she declared, did not occur.

Burbank attorney David D. Diamond—a two-time unsuccessful candidate for the Los Angeles Superior Court who has announced his candidacy in the 2022 election—represented defendant Joshua Nathaniel Rivers in the trial court and on appeal. In seeking an award of $6,300 in attorney fees in favor of his client, sued by Marcia Bennett under the Domestic Violence Prevention Act (“DVPA”), Diamond said in an April 2, 2019 notice of motion that his client was “was compelled to respond to and defend a frivolous action,” and set forth in his memorandum of points and authorities: “Petitioners case was adjudicated in favor of Respondent. On November 20, 2018 the Petitioner asked for an additional hearing date to retain an attorney.  On December 10, 2018, the new hearing date, she failed to appear.”

He added in a declaration: “It is my belief that Petitioner should pay for the Respondent’s attorney’s fees because she [sic] is the prevailing party.”  In an opposing declaration dated May 29, 2019, Northridge attorney Bernal P. Ojeda (who also represented Bennett in the appeal) protested:

“The Respondent’s claim as a prevailing party is misleading.  Respondent at the present time has a four year criminal restraining order against him, not mentioned in the current motion….[T]his was the reason Petitioner did not appear for the hearing in the instant case. The criminal case is a related case and the criminal protective order should have been mentioned to this court but was not.  Given the fact that there is an existing restraining order against Respondent and protecting Petitioner, Respondent cannot claim he is a prevailing party nor can he have that status.”  (Los Angeles Superior Court Judge Peter Mirich granted the restraining order on Nov. 30, 2018, 10 days before the hearing at which Bennett did not appear.)

Ojeda said in his memorandum of points and authorities: “The criminal action now pending is a related case, involving the same parties, same incident and set of facts.”  The minute order of the June 4 hearing before Rosenbloom on the motion for attorney fees simply recites: “The Court finds Respondent is not the prevailing party.  “Motion Hearing re attorney fees is denied with prejudice.”

In her opinion upholding the outcome, Egerton said: “Rivers has not demonstrated the trial court’s erroneous prevailing party determination resulted in a miscarriage of justice….[B]ecause Rivers was the respondent on Bennett’s petition for a domestic violence restraining order, the trial court had discretion to deny his request for prevailing party attorney fees under [Family Code] section 6344, subdivision (a).”

She continued: “On the record before us, it is not reasonably probable that the court would have awarded Rivers the attorney fees he requested, even if the court had properly deemed him the prevailing party on the petition. And, based on this record, we cannot say the court’s denial of prevailing party attorney fees would have been an abuse of discretion.”  The judge went on to say: “And, given that Bennett dismissed her petition only after already obtaining the protection she sought under the DVPA, we cannot say the trial court’s denial of attorney fees on this ground would have been an abuse of discretion.”

Judge Acted Arbitrarily in Setting ADA Attorney Fee Award

October 8, 2021

A recent Metropolitan News story, “Judge Acted Arbitrarily in Setting ADA Attorney Fee Award,” reports that a District Court judge, in setting an attorney fee award, acted arbitrarily in disregarding the services of three of five lawyers who represented the plaintff in securing a settlement of his action under the federal Americans With Disabilities Act and the state Unruh Act and by making a 10 percent deduction as a penalty for the law firm inflating its fees, the Ninth U.S. Circuit Court of Appeals held.

Its memorandum opinion comes in a case bought by the Center for Disability Access, a division of the San Diego law firm of Potter Handy LLP, on behalf of Antonio Fernandez, who is wheelchair-bound.  The center brings hundreds of ADA and Unruh actions each year, using a stable of plaintiffs, including Fernandez.  The appeal came in a case instituted in the U.S. District Court for the Central District of California against Roberta A. Torres, who owned real property in Whittier and against CBC Restaurant Corp., which operated the Corner Bakery Café on Torres’s property. The suit was brought over the height of the counter.

In making his award of attorney fees, Judge Fernando M. Olguin said in a July 14, 2020 order: “Despite many years of experience litigating the two claims in this case in virtually hundreds of cases, and a docket that reflects little, if any, litigation in this case, plaintiff seeks $15,762.50 for the work performed by five attorneys….Further, the cases filed by plaintiff include nearly identical complaints and subsequent filings.”  Olguin made note of three of the several ADA-based actions the center has recently brought in the Central District with Fernandez serving as the plaintiff.

The judge opined that the “assignment of so many experienced attorneys to such a simple case replete with boilerplate documents resulted in substantial task padding, duplication, over-conferencing, attorney stacking, and overall excessiveness,” declaring: “Given the simplicity of the case and ADA accessibility cases in general, the quick settlement and apparent lack of any contested litigation matters in this case, and the lack of any dispositive motions, no more than one partner and one associate was necessary to prosecute this case.  Thus, the court will reduce the fee award by cutting the fees for three of the five attorneys.”

He opted to take cognizance only the services of the lead attorrney, Christina “Chris” Carson, who was admitted to practice on Dec. 2, 2011, and Mark D. Potter, whose State Bar membership goes back to Dec. 1, 1993.

Potter sought recompense at an hourly rate of $595 and Carson wanted to be paid $450 an hour. Olguin said that taking into account the various factors customarily assessed in setting attorney fees, “$425 is reasonable for attorney Potter, and an hourly rate of $275 is reasonable for attorney Carson.”  Noting that there was a “quick settlement of this routine, non-complex case, where plaintiff did not file or oppose any dispositive motions,” Olguin declared that “the court will apply a ten percent reduction.”  After subtracting “10% of the time billed for general excessiveness,” he awarded $3,897 in attorney fees—slightly less than 25 percent of what was sought.  Olguin allowed the $642.50 in costs that were claimed.

Reversal came in an opinion signed by Circuit Judges Susan P. Graber and John B. Owens and by District Court Judge Charles R. Breyer of the Northern District of California, sitting by designation. The judges said: “While we agree with the district court that Fernandez’s lawyers overbilled, it was ‘arbitrary’ to ignore entirely the time billed by three of the five lawyers….These three appear to have performed at least some necessary work….To the extent that overstaffing resulted in inefficiencies, the district court should reduce the fee award in proportion to those inefficiencies, rather than Through a ‘shortcut.’ ”

The opinion continues: “The district court also abused its discretion in calculating the hours of the two attorneys whose work it considered.  The court provided cogent reasons for its specific cuts as to various tasks, but its final additional 10% reduction for ‘general excessiveness’ lacked any justification.”  Olguin did not abuse his discretion in setting the rates for Carson and Potter, the Ninth Circuit said, because they had nor provided evidence substantiating the higher value they ascribed to their services.

Federal Judge Cites NALFA Survey in Attorney Fee Award

October 1, 2021

A federal judge has cited a NALFA survey in a class action attorney fee award.  U.S. District Judge Amos L. Mazzant of the U.S. District for the Eastern District of Texas referenced NALFA’s hourly rate survey in awarding attorney fees and expenses in Cone v. Porcelana Corona de Mexico, S.A.de C.V. et. al (“Vortens”).  The NALFA survey independently showed prevailing market rate data of class counsel in the Dallas-Fort Worth area. 

“To support its submitted rates, Class Counsel commissioned and submitted a survey conducted by the National Association of Legal Fee Analysis ("NALFA").  The sample of the NALFA survey was Dallas-Fort Worth metropolitan area plaintiffs’ counsel practicing in consumer related or product liability class-action work.  Class Counsel’s submitted hourly rates, while on the higher side, falls within the accepted range,” wrote Judge Mazzant.

NALFA conducts custom hourly rates for clients such as law firms to independently prove billing rates in court.  Lead plaintiffs’ counsel commissioned NALFA to conduct a billing rate survey of plaintiffs’ rates in class actions in the Dallas-Fort Worth area.  NALFA conducted this survey via email, employing its best practices measures.  In his 26-page fee order (pdf), Judge Mazzant accepted the hourly rate data and survey results and awarded over $4.3 million in attorney fees in the Vortens class settlement.

Court Can’t Bar Injured Workers’ Attorney Fees, PA Justices Told

September 24, 2021

A recent Law 360 story by Matthew Santoni, “Court Can’t Bar Injured Workers’ Atty Fees, Pa. Justices Told,” reports that a worker told the Pennsylvania high court that he should be allowed to seek attorney's fees from PennDOT after he won a workers' compensation case, arguing the lower court improperly shut the door on injured workers getting their employers to pay legal bills.  Arguing before the Supreme Court of Pennsylvania, an attorney representing injured PennDOT worker Vincent Lorino said Commonwealth Court Judge P. Kevin Brobson's opinion misstated that workers' compensation judges "shall" deny fees when an employer's challenge of a worker's claim for benefits is reasonable, when the law says "may."

"I was surprised at how blunt and direct Judge Brobson's opinion was, when it said 'despite the General Assembly's use of the word may, this court has always interpreted Section 440' this way," said George Badey of Badey Sloan & DiGenova.  "You can't do that, respectfully.  The courts can't do that."  Badey asked the justices to rule that Lorino could still ask for PennDOT to pay his legal fees and that the lower court had run afoul of the Statutory Construction Act in substituting its own wording for the legislature's.

According to court records, Lorino sprained his lower back and hip on the job in 2016 and started getting regular steroid injections that allowed him to return to work.  PennDOT, which was covering his medical costs but providing no missed-work benefits, sought to terminate the medical payments in 2017 and offered a doctor's opinion that Lorino's work-related injury had fully healed.  A workers' compensation judge reversed PennDOT's denial in 2018 but ruled that Lorino had to pay his own legal bills because PennDOT's challenge to his claim had been reasonable.  On appeal to the Commonwealth Court, Judge Brobson said in August 2020 that the workers' compensation judge was right and that the courts had always interpreted that section of the law as denying fees unless the challenge was unreasonable.

In the argument to the high court, Badey said courts had to interpret the law as it was written and could not change the wording.  He said siding with his client would affect only a narrow group of workers like him who were still working and not getting wage benefits that could be split with an attorney as part of a contingency fee agreement.  Chief Justice Max Baer pressed Badey on whether reopening the possibility of fees would just shift the debate to whether an employer's challenge was reasonable, which would be up to the workers' compensation judge's discretion.

Eighth Circuit Tosses $1 FLSA Attorney Fee Award

August 19, 2021

A recent Law 360 story by Max Kutner, “8th Circ. Axes $1 Atty Fee Award in FLSA Case”, reports that counsel for workers who settled overtime claims against a pipe manufacturer are set to get more attorney fees after the Eighth Circuit ruled that an Arkansas federal court's award of a single dollar was wrong, finding the judge hadn't made the required calculations.  In its opinion, a split three-judge panel vacated the fees award and remanded the Fair Labor Standards Act case against Welspun Pipes Inc. and related entities, saying that regardless of any concerns about attorney conduct, the lower court hadn't done necessary calculations when slashing the requested $96,000 to $1.

The lower court hadn't calculated the lodestar, which is the number of hours counsel worked times the prevailing hourly rate, the majority said.  The lower court had properly determined the prevailing rate at the attorneys' firm, but it hadn't multiplied the rate by the reasonable number of hours worked, the judges said.  "Without any reference to the lodestar amount, the district court said it awarded $1 because it could not award any less," the majority said.  "Without a supporting rationale based on the lodestar calculation and reduction, this was [an] error."

Under circuit precedent, a district court must calculate the lodestar in an FLSA settlement, the majority said.  When the lodestar is determined, "it is unlikely that a $1 attorneys' fee is reasonable," given that the counsel obtained a nearly $270,000 payout for the workers, the judges said.  Even the $25,000 fee award the lower court said it would approve if the $1 amount was shot down on appeal was not based on a lodestar calculation, the majority said.  The opinion added that any reduction to the award because of a party's conduct should come after the court determines the lodestar.

But the majority pushed back against the workers' argument that the district judge had also wrongly denied an earlier settlement motion on the grounds that the parties had not negotiated the wage claim settlement and attorney fees separately.  The lower court had said circuit precedent required the separate negotiations.  "There is sufficient evidence in the record for the district court to have determined that the wage claim and the attorneys' fees were not separately negotiated," the majority said.  The opinion cited emails showing the parties at certain points discussed the amounts as a single lump sum, among other factors.

The panel also denied the workers' request to reassign the district judge, saying they hadn't shown the judge was incapable of determining appropriate attorney fees due to a clear bias against them.  In a dissenting opinion, U.S. Circuit Judge Steven M. Colloton said the lower court had been right to issue the $1 award due to attorney conduct when negotiating the wage claim amount and the fee amount.  The focus on the lodestar issue is "misplaced," Judge Colloton said. "The whole point of the district courts' order is that the lodestar amount of fees was immaterial on this record, because counsel's egregious conduct warranted an award of a de minimis fee, if any at all."

The dispute stems from a proposed class and collective action that workers Anthony Vines and Dominique Lewis filed in August 2018.  They alleged that Welspun shorted manufacturing plant workers on overtime pay by not factoring bonuses and other incentives into the rate calculations, in violation of the FLSA and Arkansas law.  The two sides reached a settlement in which Welspun agreed to pay $211,666 to an initial class and an additional amount to a subsequent class.  The company also agreed to pay Sanford Law Firm $89,000 in fees and costs for the first class and an additional fee for the second class.

But in September 2019, the district judge partly denied the request, saying the court couldn't determine whether the deal was reasonable because information was missing.  In March 2020, the parties filed a new agreement, under which the first class would still get $211,666, the second class would get $57,673 and counsel would get $96,000 in fees and costs.  But the judge again denied the request, saying that the parties had failed to negotiate the wage claim and attorney fees separately.  Then that May, the two sides asked for final approval for only the wage claim, and the judge granted it.

The parties then asked for the $96,000 in attorney fees.  But in June 2020, the judge awarded just $1, citing the firm's "incorrigible" billing practices, such as "random increases" in hourly rates and rates that seemed "arbitrary and … unreliable."