Motion for Attorney Fees in Chad Wilson vs. DK Transport Inc.| Trellis.Law

On May 04, 2020 a Motion-Secondary was filed involving a dispute between and Wilson, Chad, for 39 Unlimited - Other Judicial Review in the District Court of Fresno County.

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1 McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
2 David R. McNamara, #133302
dave.mcnamara@mccormickbarstow. com
3 Justin G. Dormer, #316504
Justin.donner@mccormickbarstow.com
4 7647 North Fresno Street
Fresno, California 93720
5 Telephone: (559)433-1300 E-FILED
Facsimile: (559) 433-2300 11/4/2020 10:24 AM
6
Superior Court of California
Attorneys for Defendant/Appellant DK
County of Fresno
7 TRANSPORT INC., A CALIFORNIA
CORPORATION By: J. Nelson, Deputy
8

9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF FRESNO, CENTRAL DIVISION
11

12
CHAD WILSON, Case No. 20CECG01346
13
Plaintiff, DEFENDANT/APPELLANT DK
14 TRANSPORT INC.'S MEMORANDUM
V. OF POINTS AND AUTHORITIES IN
15 OPPOSITION TO PLAINTIFF'S
DK TRANSPORT INC., a California MOTION FOR ATTORNEYS' FEES AND
16 corporation, COSTS

17 Defendant.

28
MCCORMICK, BaRSTOW,
Sheppard. WAYTE&
CaRRUTH LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN.
7«47 NORTH FRESNO STREET
FRESNO. CAS3730 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 TABLE OF CONTENTS

2 Page

3 I. PERTINENT FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1

4 II. LEGAL ARGUMENT 2

5 A. Defendant Was Successful In Its Appeal 2

6 1. History of Labor Code Section 98.2 2

7 2. The Question is Whether Defendant Was Successful, Not Plaintiff. 3

8 3. The Legislative History of Labor Code Section 98.2 4

9 4. Reason, Practicality, and Common Sense Support Defendant's
Interpretation 6
10
B. The Requested Attorneys' Fees are Not Reasonable 7
11
1. Plaintiff Rejected an Offer Akin to a Statutory 998 Offer 7
12
2. Plaintiff Has Not Shown that the Attorneys' Fees Incurred Were
13 Reasonable 8

14 3. Plaintiffs Counsels Rate is Not Reasonable 9

15 III.CONCLUSION 11

28
MCCORMICK.BARSTOW, DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
SHEPPARD. WAYTE&
Carruth LLP OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
7847 NORTH FRESNO STREET

FRESNO. CA 99720 i
1
CASES
2
Arias v. Kardoulias (2012) 207 Cal.App.4th 1429 2
3
Bell V. Clackamas County (9th Cir.2003) 341 F.3d 858 9
4
Bell V. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 9
5
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008) 10
6
Cardenas v. Mission Industries {Industries (1991) 226 Cal.App.3d 952 4, 6
7
Dawson v. Westerly Investigations, Inc. (1988) 204 Cal.App.3d Supp. 20 7
8
Delaney v. Superior Court (1990) 50 Cal.3d 785 5
9
ElEscorial Owners'Assn. v.DLCPlastering, Inc. (2007) 154Cal.App.4th 1337 7, 8, 9
10
Garcia v. FCA US LLC, No. l:16-CV-0730-JLT, 2018 WL 1184949 10
11
Hall V. FCA US LLC, No. 1:16-CV-0684-JLT, 2018 WL 2298431 10
12
Juarez v. Villa/an, No. l:16-cv-00688-DAD-SAB, 2017 WL 6629529, at *19 (E.D. Cal.
13 Dec. 29,2017) 10

14 Lolley V. Campbell (2002) 28 Cal.4th 367 6

15 Maclsaac v. Waste Management Collection & Recycle, Inc. (2005) 134 Cal.App.4th 1076 ...3,4, 6
16 Mike Murphy's Enterprises, Inc. v. Fineline Industries, l:18-cv-0488-AWI-EPG,
2018 WL 1871412 (E.D. Cal. Apr. 19, 2018) 10
17
PLCM Group v. Drexler (2000) 22 Cal.4th 1084 9
18
Schwarz v. Secretary ofHealth c& Human Services (9th Cir. 1995) 73 F.3d 895 10
19
Serrano v. Unruh (1982) 32 Cal.3d 621 8
20
Smith V. Rae-Venter Law Group (2002) 29 Cal.4th345 2, 3,4, 5, 8
21
Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 4, 5
22
Triad Data Services, Inc. v. Jackson (1984) 153 Cal.App.3d Supp. 1 4, 6
23

24 STATUTES

25 Code Civ. Proc., § 998, subd. (c)(1) 8

28
McCormick, BARSTOW,
Sheppard, Wayte &
DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
CARRUTH LLP OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
7«47 NORTH FRESNO STREET
FRESNO. CA »710 ii
1 This Memorandum of Points and Authorities is submittedon behalf of Defendant/Appellant
2 DK TRANSPORT INC. (hereinafter, "Defendant") in Opposition to Plaintiff CHAD WILSON's

3 (hereinafter, "Plaintiff) Motion for Attorneys' Fees and Costs (hereinafter, "Motion").
4 I.
PERTINENT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
5
In March of 2020, the Labor Commissioner issued a written "Order, Decision or Award"
6
(hereinafter, "Labor Commissioner's Order") inrelation to the administrative complaint brought by
7
Plaintiffagainst Defendant (State CaseNo. CM-686329, filed on April 17, 2019). (Declaration of
8
David R. McNamara in Support of Defendant's Opposition (hereinafter, "Decl. DRM"), at H3 and
9
Ex. "A".) Defendant was ordered to pay Plaintiff: (1) $1,518.00 in unpaid wages; (2) $242 in
10
liquidated damages; (3) $155.27 in interest; and (4) $8,250.00 in waiting timepenalties pursuant to
11
Labor Code Section 203 - for a total award of $10,165.27. (Decl. DRM, at Ex. A.)
12
On April 2, 2020, Defendant's Counsel David R. McNamara reached out to Plaintiff via
13
telephone to try and settle this matter for everything but the waiting time penalties, in lieu ofhaving
14
to file the appeal, and explained to Plaintiff why the waiting time penalties were unwarranted. {Id.
15
at ^ 4.) Plaintiff rejected this offer. {Ibid.) Immediately following Defendant's attempt to resolve
16
the matter with Plaintiff (April 3, 20202), it filed its appeal with the Fresno County Superior Court
17
in relation to the Labor Commissioner's Order(hereinafter, "Appeal"). {Ibid.)
18
Following Defendant's Appeal, the Labor Commissioner appointed attomey Scott Jones to
19
represent Plaintiff. {Id. at %5.) On April 23, 2020, Mr. McNamara and Mr. Jones discussed the
20
case. {Ibid.) During this call, Mr. McNamara relayed Defendant's offer to settle the case for
21
everything awarded by the Labor Commissioner's Order but the waiting time penalties and
22
explained why the penalties were not appropriate. {Id. at H5 and Ex. B [email correspondence
23
conveying offer].) Following the call, Mr. Jones had only expended 2.2 hours on the file. (See
24
Declaration of Scott L. Jones (hereinafter, "Decl. SLJ"), at H5.) Plaintiff rejected Defendant's offer
25
on May 7, 2020. (Decl. DRM, at ^ 6 and Ex. C.)'
26

27
' Ifany amount ofattorney's fees are awarded. Defendant thinks a reasonable award would be 2.2 hours ata
28 reasonable rate.

McCormick, Barstow,
Sheppard,Wayte& 1
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7S47 NORTH FRESNO STREET
FRESNO. OA 93720 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 11.
LEGAL ARGUMENT
2
A. Defendant Was Successful In Its Appeal.
3
Subdivision (c) of California Labor Code section 98.2 reads as follows:
4
"Ifthe party seeking review by filing an appeal to the superiorcourt
5 is unsuccessful in the appeal, the court shall determine the costs and
reasonable attorney's fees incurred by the other parties to the appeal,
6 and assess that amount as a cost upon the party filing the appeal. An
employee is successful if the court awards an amount greater than
7 zero."

8 Here, Defendant filed the appeal at issue. Therefore, the preliminary issue is whether
9 Defendant was "unsuccessful." Asthis court noted in itsLaw and Motion Order, this case presented
10 a unique set of facts and an issue of first impression not warranting waiting time penalties. The
11 Labor Commissioner awarded waiting time penalties over four times larger than the other damages
12 combined. As will be shown below, the core purpose of Section 98.2 it to avoid meritless and
13 frivolous appeals and toprevent employees from being subjected toowing attorneys' fees and costs,
14 which inturn would dissuade employees from using the administrative process. Plaintiffs waiting
15 time penalties were not simply reduced, they were taken away by this court in their entirety -
16 disposing of an entire claim. Therefore, Defendant was successful in its appeal and cannot be
17 considered meritless. Further, since 98.2 isapplied unilaterally. Plaintiff isnot subject to attorneys'
18 fees and costs because he did not file the appeal.
19 1. Historv of Labor Code Section 98.2

20 Section 98.2, subdivision (c) was amended in 2003, following the California Supreme
21 Court's decision inSmith v. Rae-Venter Law Group (2002) 29Cal.4th 345, to protect employees by
22 clarifying what constitutes an employee's success on appeal. {Arias v. Kardoulias (2012) 207
23 Cal.App.4th 1429, 1435.) "Before the statute was amended in 2003, it did not explicitly provide
24 that an employee would be considered successful on appeal if the court awards an amount greater
25 than zero (cf. Stats. 2002, ch. 784, § 522), but Court of Appeal decisions construed the statute in

26 that manner." (Ibid) The 2003 amendment added the last sentence in the current subdivision (c).
27 In Smith, the Supreme Court determined that an employee is unsuccessful on appeal, and subject to
28 the one-way fee-shifting provision, if the award on appeal was less than the Commissioner's award.
MCCORMICK,BARSTOW,
SHEPPARD.WAYTEa
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7847 NORTH FRESNO STREET

FRESNO. CAS3770 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 {Smith, supra, 29 Cal.4th at pp. 370-71.) Since it was the employee who appealed in Smith, they
2 were potentially on the hook for attorneys' fees and costs if their Labor Commissioner award was

3 reduced, which is what alarmed the legislature and sparked amendment to the statute.

4 2. The Question is Whether Defendant Was Successful. Not Plaintiff.

5 Plaintiffs "success" is defined differently than Defendant's. The first sentence of section

6 98.2, subd. (c), reads: "If the party seeking review by filing an appeal to the superior court is
7 unsuccessful in the appeal, the court shall determine the costs and reasonable attorney's fees
8 incurred by the otherparties to the appeal, and assess that amount as a cost uponthe partyfiling the
9 appeal." Therefore, per the statute, what is at issue here is whether Defendant was successful, not
10 whether Plaintiff was successful. Since Plaintiffs success is specially defined by statute.
11 Defendant's success should not be interpreted as being the polar opposite (i.e. Defendantcould still
12 be successful should Plaintiff recover a penny). An employee is only on the hook for attorneys'
13 fees if they appealed; therefore, it is clear that the legislature intended to protect the employee by
14 more clearly defining their success in the next sentence of subdivision (c), which states: "An
15 employee is successful if the court awards an amount greater than zero." It makes logical sense to
16 nothave anemployee owe attorneys' fees, if theultimate determination is thatthey areowed money
17 on their appeal in some manner.

18 It does not make sense to apply this same standard to the employer's appeal; nor does the
19 plain language of the statute require such. (See Maclsaac v. Waste Management Collection &
20 Recycle, Inc. (2005) 134Cal.App.4th 1076,1084[stating thatthe firststepof statutory interpretation
21 is looking to the plain meaning].) If statutory language is "clear and unambiguous" the court's task
22 of statutory interpretation ends there, and there is no need for furtherjudicial construction. {Id. at
23 1083.) Since the statute here does not define an employer's success, the term "unsuccessful" should

24 be given its "plain and commonsense meaning." (See ibid.) The court in Smithalready deciphered
25 the plain and commonsense meaning of "success" from the perspective of an employer's appeal,

26 which was "an incremental reduction in the administrative award." {Smith, supra, 29 Cal.4th at p.
27 370.) This plain meaning comports with the purpose ofthe amendment because the resulting appeal

28 would have had merit (i.e. the reduction) and the employee is not on the hook for attorneys' fees
mcCormick, Barstow,
Sheppard. Wayte &
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CA 93720 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 (unilaterally applied to appealing party). Words used by the Legislature are the most useful guide
2 to the statute's intent because "it is the language of the statuteitself that has successfully braved the
3 legislative gauntlet." (Maclsaac, supra, 134 Cal.App.4th at pp. 1082-83.) Here, Defendant was
4 successful in its appeal because it entirely disposed of the awarded waiting time penalties.
5 3. The Legislative Historv of Labor Code Section 98.2

6 Again, if the language of the statute is clearthereis no needfor further judicialconstruction.
7 {Maclsaac, supra, 134 Cal.App.4th at pp. 1082-83.) The three step sequence of statutory
8 construction is as follows: courts "first lookto the plain meaning of the statutory language, then to
9 its legislative history and finally to the reasonableness of a proposed construction." {Id. at 1082.)
10 If the court finds that it is ambiguous asto whether the definition of employee success should apply
11 to an employer's appeal, then the legislative history should reviewed. Here, the legislative history
12 shows that the purpose of the amendment was tocombat the increased chance ofemployee's owing
13 attomeys' fees, if they appealed, due to the holding in Smith. (See CA B. An., A.B. 223 Sen.,
14 6/25/2003; see also Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659,673 n.2 [interpreting
15 the legislative history andamendment as the legislature being concemed with the holding inSmith
16 discouraging employees' from using the Labor Commissioner process or from making meritorious
17 appeals due to risk of owing attorneys' fees].)
18 The June 25, 2003, California Bill Analysis states, "In December 2002, the State Supreme
19 Court held in Smith v. Rae-Venter LawGroup that an appealing party is successful, only when the
20 court judgment is more favorable to the appealing party than the LC's award would have been. In
21 so holding, the court determined that attomeys [sic] fees and costs must be bome by the
22 'unsuccessful party,' even when such party receives a favorable determination, but when such
23 determination results in a lesser award than that which the party would have received under the LC
24 award." (See CA B. An., A.B. 223 Sen., 6/25/2003.) The report went on to state that, "Prior to the
25 Smith decision, the courts in Cardenas v. Mission Industries and Triad Data Services. Inc. v. Jackson

26 held that the fee-shifting provision of existing law applies only when the judgment of the trial court
27 completely eliminates the LC's administrative award." {Ibid.) The report further states that the

28 intent of the legislature was to "overtum" the decision in Smith by inserting the provision stating
McCormick, Barstow,
Sheppard, Wavte &
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7M7 NORTH FRESNO STREET
FRESNO. CAS3720 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 that "an employee is successful in the appeal of an LC award so long as the employee recovers an
2 amount greater than zero." {Ibid.) This should not be viewed as "overturning"Smith in full. ^
3 First, the legislative history shows an intent to overturn the decision in Smith from the

4 perspective of an employee appeal. The discussion centers around theideaof a party receiving less
5 of an "award" then what was previously awarded by the Labor Commissioner. Employers do not
6 receive Labor Commissioner awards. This amendment was concerned with addressing the greater
7 risk created by Smith that an employee could become liable for attomeys' fees, which is/was only
8 feasible from an employee provoked appeal due to the unilateral shift. This intent is evidenced
9 by the "overtuming" amendment, itself,which only mentions when an employee is deemed to be
10 successful. Specifically, the statute states,"An employeeis successful ifthe courtawards an amount
11 greater than zero." Smith was superseded inpart by statute, but the remaining principles still apply
12 in defining employer success on an employer appeal. This interpretation is further supported by
13 the Supreme Court's interpretation of the amended statute in Sonic-Calabasas, where it states that
14 an employee enjoys the following benefits from a labor commissioner hearing:
15 (1) [T]he award will be enforceable if not appealed; (2) the Labor
Commissioner is statutorily mandated to expend best efforts in
16 enforcing theaward, which is also established as a court priority; (3)
if the employer appeals, it is required to post a bond equal to the
17 amount of the award so as to protect against frivolous appeals and
evading the judgment; (4) a one-way attorney fee provision will
18 ensure that fees will be imposed on employers who
unsuccessfully appeal but not on employees who unsuccessfully
19 defend their Berman hearing award, or on employees who
appeal and are awarded an amount greater than zero in the
20 superior court; (5) the Labor Commissioner is statutorilymandated
to represent in an employer's appeal claimants unable to afford an
21 attorney if the claimant does not contest the Labor Commissioner's
award. {Sonic, supra, 51 Cal.4th at p. 674 [emphasis added].
22
The Supreme Court inSonic interpreted the "amountgreater than zero"definition toapply
23
to an employee's appeal, butit didnot include that as a benefit associated with an employer appeal.
24
Defendant would still be successful if the employee based definition was applied to its appeal
25

27
The motives or understanding of a single legislature, even if he or she authored the statute, should not be
relied upon. {Delaney v. Superior Court (1990) 50Cal.3d 785, 801 n.9.) Collective analysis of the legislative
28 history as a whole is key - i.e. the context of what sparkedamendment.
McCormick, Barstow,
SHa»PARD. WAYTC &
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CA M720 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 because it successfully eliminated the entire claim for waiting time penalties and reduced the amount
2 to zero. This was not the same situation in the cases mentioned by the legislature when it sought to
3 overturn Smith. (See Cardenas v. Mission Industries {Industries (1991) 226 Cal.App.3d 952, 959-
4 60 [holding employer's reduction in overtime owed was not a successful because it was not

5 eliminated infull]; TriadDataServices, Inc. v. Jackson {\9^A) 153 Cal.App.3d Supp. 1,15 [superior
6 court eliminated waiting time penalties but then appellate court reinstated them].)
7 4. Reason. Practicalitv. and Common Sense Support Defendant's Interpretation.

8 Interpreting Section 98.2 to mean that an employer owes attorneys' fees following their
9 appeal if a penny remains from the Labor Commissioner's award is an absurd interpretation and
10 cuts directly against the policy behind the statute and Defendant's constitutional rights. It is clear
11 from the legislative history that the goal was to insulate employees from becoming liable for fees
12 andcosts on theirappeal. However, ifthiscourt stillfinds that there isambiguity in what constitutes
13 "employer success" on an appeal, then it must look to the third step, which is to apply "reason,
14 practicality, and common sense to the language at hand." {Maclsaac, supra, 134 Cal.App.4th 1076,
15 1084.) "Where an uncertainty exists, [the courts] must consider the consequences that will flow
16 from a particular interpretation." {Ibid.) Thus, "in determining what the Legislature intended
17 [courts] are bound to consider not only the words used, but also other matters, 'suchas context, the
18 object in view, the evils to be remedied, the history of the times and of legislation upon the same
19 subject, publicpolicy and contemporaneous construction.'" {Ibid.)
20 In sum, the goal here is to effectuate the purpose of the law. The legislative purpose of the
21 subject statute here is to "discourag[e] unmeritorious appeals of wage claims, thereby reducing the
22 costs and delays of prolonged disputes, by imposing the full costs of litigation on the unsuccessful
23 appellant." {Lolley v. Campbell (2002) 28 Cal.4th 367, 376; see also Smith, supra, 29 Cal.4th at p.
24 359 [stating that the legislative purpose of the fee and cost-shifting provision was to "discourage
25 frivolous and nonmeritorious appeals from the labor commissioner's decisions.) The further
26 overarching purpose of Labor Code Section 98 et. seq. is to afford "a speedy method by which wage
27 earners may determine their right to wages and penalties, while at the same time affording due
28 process to employers and a procedure for appeal." {Dawson v. Westerly Investigations, Inc.
MCCORMICK,BARSTOW,
SHEPPARD. WAYTE&
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7S47 NORTH FRESNO STREET
FRESNO. CA 89730 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 (1988) 204 Cal.App.3d Supp. 20, 24.)

2 Here, Defendant appealed the Labor Commissioner Order because it granted waiting time
3 penalties that were over four times larger than the awarded wages, liquidated damages, and interest
4 combined. (Dec!. DRM, at 4-5.) There also was no prolonged dispute because of the appeal
5 because Defendant offered to pay the wages, minus the waiting time penalties, before the appeal
6 was everfiled. Defendant moved forward based on Plaintiffsrejection oftheoffer topayallaspects
7 of the award minus the waiting time penalties. With the appeal. Defendant was successful in
8 eliminating the waiting time penalties. Now, the Labor Commissioner seeks attorneys' fees for an
9 amount almost identical to that which Defendant disposed of through the appeal. This very
10 scenario cuts directly against the purpose of the statute, in that, it discourages meritorious
11 appeals and does not afford Defendant proper due process. Disincentivizing employers to
12 pursue their rights and valid legal arguments by holdingattorneys' fees over their head ifthe Plaintiff
13 recovers but onepenny is in stark contrast to thetrue intent of Labor Code Section 98 et. seq. This
14 is especially truefor cases likethiswhere the issue pertains to a matter of first impression, and there
15 is a legitimate dispute as to their being wages owed, if any.
16 B. The Requested Attorneys* Fees are Not Reasonable

17 California Labor Code section 98.2 requires that, if this court finds Defendant to be
18 unsuccessful, the costs and reasonable attorneys' fees shall be determined. In other words, even if
19 the Court finds that Defendant was unsuccessful due to statutory interpretation, it could still
20 determine that the attorneys' fees, as a whole, are unreasonable. In fact, at the outset. Defendant
21 would argue that the attorneys' fees are unreasonable for all of the same reasons described above.

22 Specifically, awarding attorneys' fees in a situation where Defendant successfully disposed of an
23 entire claim (waitingtime penalties) that was over four times largerthan the other damages awarded
24 by the Labor Commissionerwould be unreasonable. This is especially true given the effort to settle
25 and offered in essence, the same thing that was awarded.

26 1. Plaintiff Rejected an Offer Akin to a Statutorv 998 Offer.

27 The moving party must prove "the hours they [seek are] reasonable and necessary." {El

28 Escorlal Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1366 [emphasis
mcCormick, barstow,
Sheppard, Wayte &
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7«47 NORTH FRESNO STREET

FRESNO. CA aSTTO OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 added].) "A fee request that appears unreasonably inflated is a special circumstance permitting the
2 trial court to reduce the award or deny one altogether." {Serrano v. Unruh (1982) 32 Cal.3d 621,
3 635.) As pointed out by the Supreme Court in Smith, both Labor Code section 98.2 and California
4 Code Of Civil Procedure section 998 intend to discourage unnecessary litigation. {Smith,supra, 29
5 Cal.4th at p. 363.) The situation outlined by section 998 is analogous to what happened here, and
6 it's policies should be adopted in helping to decipher "reasonable." If a plaintiff does not accept a
7 defendant's statutory settlement offer andthen "fails to obtain a more favorable judgment or award,
8 the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the
9 time of the offer." (Code Civ. Proc., § 998, subd. (c)(1).) "As recognized in numerous California
10 decisions, the clear purpose of [Code of Civil Procedure] section 998 ... is to encourage the
11 settlement of lawsuits prior to trial, and penalize litigants who fail to accept what, in retrospect, is
12 determined to have been a reasonable settlement offer." {Smith, supra, at p. 363.)
13 Here, Defendant explained to both Plaintiffand Plaintiffs Counsel thatit planned onarguing
14 that the waiting time penalties were improper due to Defendant's good faith dispute, and it offered
15 to settle for everything but the penalties before appealing. Plaintiffrejected this offer twice and
16 decided to move forward incurring needless attorneys' fees. Therefore, the focal point for both
17 parties became proving whether or not Defendant did in fact have a good faith dispute. This court
18 disposed of the waiting time penalties, therefore, the attorneys' fees were unnecessary and
19 unreasonable. Plaintiff should not be awarded for denying a reasonable settlement offer that could
20 have avoided the fees altogether. He only succeeded on the portion of the claim defendant wished
21 to settle. Attorneys' fees were incurred because of Plaintiff s rejection making them unreasonable.
22 2. Plaintiff Has Not Shown that the Attomevs' Fees Incurred Were Reasonable.

23 It is plaintiffs burden to prove that the requested attorneys' fees are both "reasonable and
24 necessary". {El Escorial, supra, 154 Cal.App.4th at p. 1366.) Plaintiff has failed to meet this

25 burden, therefore, this court should deny the request altogether. First, it is impossibleto show the
26 fees were necessary in light of Plaintiff rejecting an offer for everything but the waiting time
27 penalties. Furthermore, even ifnecessary. Plaintiffdedicates much ofhis briefto the reasonableness

28 of the Labor Commissioner's requested rate but never discusses the reasonableness of the hours
MCCORMICK,BARSTOW,
Sheppard, Wayte &
8
Carruth LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CA »37» OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 expended or the need to incur them to begin with. The moving party is not "automatically entitled
2 to all hours theyclaim in their request for fees." {ElEscorial, supra, at p. 1366.) The "mustprove"
3 reasonable and necessary, which Plaintiff has made no effort to do. (See ibid)

4 For example, Plaintiffs Counsel gives no explanation for why there would need to be a

5 "consideration of discovery" in a Labor Commissioner Appeal (block billed entry of 1.3 hours on
6 April 20,2020). Second, there is no explanation of whythe administrative taskof updating Plaintiff
7 on "trial dates" would be reasonable (expended on May 19, 2020). Plaintiffoffers no explanation
8 as to why he would need to review the case file a second time on July 24, 2020 (2.9 hours). There
9 is no explanation offered as to why a trial brief was even necessary; nor why 4.7 hours was needed
10 on this optional filing, followed by 6.1 morehours of trial preparation (entries on August 4,10, and
11 18, 2020). On August 14,20120, Plaintiffs Counsel block bills the review of Defendant's witness

12 list and a call with Plaintiff. {Bell v. Vista Unified School Dist, (2000) 82 Cal.App.4th 672, 689
13 [showing that block billing should be deemed unreasonable].) In summary. Plaintiff devotes no
14 argument to why the time expended was necessary or reasonable. Again, this is his burden.
15 Regardless, as shown above Plaintiffs Counsel spent an unreasonable amount of time on
16 preparation (hiding some of it within an unnecessary trial brief), researched unnecessary issues (i.e.
17 discovery), billed for administrative tasks, and block billed some entries to hide unreasonable time.

18 3. Plaintiffs Counsels Rate is Not Reasonable

19 "It is well established that the determination of what constitutes reasonable attorney fees is
20 committed to the discretion of the trial court." {PLCMGroup v. Drexler (2000) 22 Cal.4th 1084,
21 1096.) "The trial court may make its own determination of the valueof the services contrary to, or
22 without the necessity for, expert testimony." {Ibid.) The trial court makes its determination after
23 consideration of a number of factors, including the nature of the litigation, its difficulty, the amount
24 involved, the skill required in its handling, the skill employed, the attention given, the success or
25 failure, and other circumstances in the case." {Ibid.) In determining hourly rates, the court must
26 look to the "prevailing market rates in the relevant community." {Bell v. Clackamas County (9th
27 Cir.2003) 341 F.3d 858, 868.) The relevant community for determining the reasonably hourly rate
28 is theforum in which the court sits. {Camacho v. BridgeportFinancial, Inc., 523 F.3d 973,978 (9th
MCCORMICK, BARSTOW.
Shepparo, Wavte &
CARRUTH LLP DEFENDANT/APPELLANT DK TRANSPORT INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7S47 NORTH FRESNO STREET

FRESNO. CA 93730 OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
1 Cir. 2008).) In making its calculation, the court should also consider the experience, skill, and

2 reputation of the attorney requesting fees. {Schwarz v. Secretary ofHealth & Human Services (9th
3 Cir. 1995) 73 F.3d 895, 906.)

4 The reasonable rate for an associate in Fresno with between 4-10 years of experience would
5 be approximately $250 per hour. (See Hall v. FCA US LLC, No. l:16-CV-0684-JLT, 2018 WL

6 2298431, at *7 (E.D. Gal., May 21, 2018) (awarding $225 an hour to an attorney with 5-7 years of
7 experience, and $250 to an attorney with ten years of experience); see also Garcia v. FCA USLLC,
8 No. l:16-CV-0730-JLT, 2018 WL 1184949, at *6 (E.D. Cal., Mar. 7,2018) (reducing attorney with
9 approximately 10 years ofexperienceto $250 per hour); Mike Murphy's Enterprises, Inc. v. Fineline
10 Industries, No. l:18-cv—0488—AWI—EPG, 2018 WL 1871412 (E.D. Cal. Apr. 19,2018) (awarding
11 an attorney with seven years of experience a rate of $250 an hour and stating that $300 per hour is
12 the upper range for competent attorneys with 10 years of experience in Fresno). The reasonable rate
13 for an associate with 0-3 years of experience in the Fresno Division would be a maximum of $200
14 per hour. (See Garcia, 2018 WL 1184949, at *6 (adjusting attorney with less than 5 years of
15 experience to $175 per hour); Juarez v. Villa/an, No. l:16-cv-00688-DAD-SAB, 2017 WL
16 6629529, at *19 (E.D. Cal. Dec. 29,2017) (highlighting reasonable rate for attomeyswith less than
17 two years of experience as $1

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Cullers, Mark Track Judge’s New Case

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November 04, 2020

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Motion-Secondary: Chad Wilson vs. DK Transport Inc.

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