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1 SHELLEY G. BRYANT - #222925
BRYANT WHITTEN, LLP E-FILED
2 8050 North Palm Avenue, Suite 210 3/1/2021 2:06 PM
Fresno, California 93711 Superior Court of California
3 (559) 494-4910 Telephone County of Fresno
(559) 421-0369 Facsimile By: I. Herrera, Deputy
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6 Attorneys for Plaintiff, ALEJANDRA BLANCO
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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
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10 ALEJANDRA BLANCO, ) Case No. 17CECG04095
)
11 Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
12 vs. ) PLAINTIFF'S REQUEST FOR
) ENTRY OF JUDGMENT,
13 DAVID J. WRIGHT, D.D.S., INC., a California ) INCLUDING ATTORNEY’S FEES
corporation, and Does 1 through 20, inclusive, )
14 ) Date : March 17, 2021
Defendants. ) Time : 3:30 p.m.
15 ) Dept : 403
) Judge : Hon. Kristi Culver
16 DAVID J. WRIGHT, D.D.S., INC., a California ) Kapetan
Corporation, )
17 ) REQUEST FOR APPEARANCE BY
Cross-Complainant, ) VIDEO
18 )
vs. )
19 )
ALEJANDRA BLANCO, and Does 1 through )
20 10, inclusive, )
)
21 Cross-Defendants. )
)
22 )
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095
1 TABLE OF CONTENTS
2 Page
3 1. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
4 2. RELEVANT FACTS ..................................................... 3
5 A. Bryant Whitten, LLP Agreed to Represent Plaintiff on a Contingency Basis . 3
6 B. Defendant Ignored Warnings About The Potential For A Substantial Attorney’s
7 Fee Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
8 C. Discovery Was Labor Intensive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
9 D. Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
10 E. Plaintiff Patiently Tolerated Defendant’s Antics. . . . . . . . . . . . . . . . . . . . . . . . . 5
11 3. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
12 A. As The Prevailing Party, Plaintiff Is Entitled to Reasonable Attorneys’ Fees . 5
13 B. The Court Should Calculate Attorneys’ Fees Based on A Lodestar Figure . . . 5
14 C. Plaintiff’s Attorneys’ Fees Are Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
15 D. The Court Should Enhance The Lodestar Because This Was A Contingency Fee
16 Civil Rights Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
17 E. The Court Should Enhance The Lodestar Based On Other Factors . . . . . . . . . 9
18 F. The Court Should Apply A Multiplier of 2.0 Based On All Factors . . . . . . . . 11
19 4. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 i
1 TABLE OF AUTHORITIES
2 Page
3 Beasley v. Wells Fargo Bank
(1991) 235 Cal.App.3d 1407 ...................................................... 8
4
Bihun v. AT&T Information Systems
5 13 Cal.App.4th 976, 998 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
6 Davis v. City & County of San Francisco
976 F.2d 1536, 1547 (9th Cir. 1992) ................................................ 6
7
Edgerton v. State Personnel Board
8 (2000) 83 Cal.App.4th 1350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
9 Estate of Trynin
49 Cal.3d 868, 874 (1989) ........................................................ 6
10
Fischel v. Equitable Life Assur. Soc’y of the United States
11 (9th Cir. 2002) 307 F.3d 997, 1008 ................................................. 9
12 Graham v. Daimler Chrysler Corp.
(2004) 34 Cal.4th 553, 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8, 11
13
Greene v. Dillingham Constr.
14 (2002) 101 Cal.App.4th 418, 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
15 Guam Soc’y of Obstetricians and Gynecologists v. Ada
(9th Cir. 1996) 100 F.3d 691, 700 .................................................. 7
16
Hadley v. Krepel
17 (1985) 167 Cal.App.3d 677, 682 ................................................... 7
18 Horsford v. Board of Trustees of California State University
(2005) 132 Cal.App.4th359, 394 ................................................... 1
19
Johnson v. CSU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
20
Kern River Pub. Access Comm. v. City of Bakersfield
21 (1985) 170 Cal.App.3d 1205, 1228 ................................................. 9
22 Ketchum v. Moses 24 Cal.4th 1122, 1131
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5, 7, 8, 9, 10, 11
23
Leubsdorf, The Contingency Factor in Attorney Fee Awards
24 (1981) 90 Yale L.J. 473, 480 ...................................................... 8
25 McGinnis v. Kentucky Fried Chicken
51 F.3d 805 (9th Cir. 1994) ....................................................... 6
26
Perkins v. Mobile Housing Bd.
27 (11th Cir. 1988) 847 F.2d 735, 738.) ................................................ 7
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 ii
1 Ramos v. Countrywide Home Loans
(2000) 82 Cal.App.4th 615, 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
2
San Bernardino Valley Audubon Soc.
3 155 Cal. App.3d at 755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
4 Salton Bay Marina, Inc. v. Imperial Irrigation District
(1985) 172 Cal.App.3d 914 ...................................................... 10
5
Serrano v. Priest (“Serrano III”)
6 (1977) 20 Cal.3d 25 ............................................................. 5
7 Serrano v. Unruh (Serrano IV)
32 Cal.3d, 621, 639 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6, 7
8
Stephens v. Coldwell Banker Commercial Group, Inc.
9 (1988) 199 Cal.App.3d 1394, 1406 ................................................ 11
10 Vizcaino v. Microsoft
(9th Cir 2002) 290 F.3d 1043, 1051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
11
Wing v. Asarco, Inc.
12 (9th Cir 1997) 114 F.3d 986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
13 Woodland Hills Residents Assn.
23 Cal.3d at 933 ............................................................... 11
14
Wooldridge v. Marlene Industries Corp.
15 (6th Cir. 1990) 898 F.2d 1169, 1177 ................................................ 7
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 iii
1 Imagine working almost 100 hours on a case without pay over the course of three years. . .
2 and investing about $2,000 of your own money . . . with no guarantee of recovering anything.
3 1. INTRODUCTION
4 Few dispute the importance of cases arising from Labor Code. However, there are not many
5 who will admit that, aside from the actual trial, the attorney’s fee petition is one of the most important
6 aspects of an employment discrimination case.
7 The basic, underlying purpose of [employment laws] is to safeguard the right of
Californians to seek, obtain, and hold employment without experiencing
8 discrimination . . . . Without some mechanism authorizing the award of attorney fees,
private actions to enforce such important public policies will as a practical matter
9 frequently be infeasible. The award of reasonable attorney fees accomplishes the
Legislature's expressly stated purpose of [employment laws] to provide effective
10 remedies that will eliminate these discriminatory practices. [Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th359, 394 (internal
11 citations omitted)]
12 Although the law provides for an award of attorney’s fees, the list of contingent fee
13 employment law attorneys who will work on these cases is short because they are really, really hard
14 to win. This case proves the point.
15 Plaintiff was employed by Defendant, David J. Wright, D.D.S., Inc., from July 25, 2016, until
16 on or about November 8, 2016, when she was wrongfully discharged. Plaintiff exhausted her
17 administrative remedies with the California Labor and Workforce Development Agency (“LWDA”)
18 regarding Defendant, Wright’s violation of the Labor Code. She sent a pre-litigation demand letter
19 with a draft civil complaint and suggested the parties mediate to resolve their disputes. Defendant,
20 Wright, ignored this offer.
21 The Complaint was filed in late 2017. It alleged that Defendant, David J. Wright, D.D.S., Inc.,
22 violated Labor Code §230 when Plaintiff was absent from work for three days because she was
23 serving on a jury, and Defendant, Wright, retaliated against Plaintiff for taking time off work for jury
24 duty by subjecting her to unwarranted discipline and terminating her employment. It further alleged
25 a violation of Labor Code § 233 when Plaintiff was absent from work for one day because she was
26 taking care of her children who were ill and Defendant, Wright, retaliated against Plaintiff for taking
27 time off work to care for her children by subjecting her to unwarranted discipline and terminating her
28 employment. The Complaint also sought damages, punitive damages, attorney’s fees and costs.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 1
1 In February 2018, Counsel for Defendant, Wright, filed an Answer and a Cross-Complaint.
2 In March 2018, \the court held a case management conference an set trial. Plaintiff served
3 written discovery at this time. Wright did not respond.
4 In June 2018, Wright’s counsel filed a motion to be relieved, which the court granted in July
5 2018.
6 Plaintiff filed a request for a Pretrial Discovery Conference because Wright refused to respond
7 to discovery requests. Dr. Wright appeared for the conference without an attorney for the corporate
8 defendant. The court continued the conference so Wright could hire an attorney.
9 In November 2018, Wright still had not hired an attorney so Plaintiff filed a Motion to Strike
10 and Enter Default for the same date as the discovery conference.
11 Wright hired an attorney who did not appear in court until the day of the discovery conference.
12 This attorney apologized profusely, agreed to file a substitution and to address all of the other
13 problems with discovery.
14 In March 2019, Plaintiff filed a second request for a Pretrial Discovery Conference because
15 Wright refused to respond to discovery requests. The parties had some problems with filing, service
16 and scheduling a conference.
17 In May 2019, Wright notified the Court that it filed bankruptcy, asked for an indefinite
18 continuance, agreed to respond to discovery, and its second attorney asked to be relieved as counsel.
19 Wrights second attorney filed a motion to be relieved, which the court granted in July 2019.
20 Wright filing for bankruptcy was just another attempt to avoid an adverse ruling. Wright
21 failed to comply with the bankruptcy court’s procedures and that case was dismissed.
22 Months passed but Wright did not retain an attorney for this case. The Court docket showed
23 that Defendant was “pro se.”
24 Plaintiff filed another Motion to Strike and Enter Default. The Court granted that motion in
25 November 2020 and Plaintiff set this hearing to prove up damages and attorney’s fees.
26 Here we are, three and a half years after the wrongful termination. Now, Plaintiff’s attorneys
27 should be awarded a reasonable attorneys’ fee for helping to enforce important workplace rights.
28 These attorneys have not been compensated for their time and effort at all, for the last three and a half
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 2
1 years.
2 Attorney Shelley G. Bryant, invested about 93.8 hours in this case. The lodestar for his
3 services - reasonable hours times a reasonable rate - is $37,520. With the lodestar enhancement
4 authorized by California law to compensate for such factors as contingent risk, preclusion of other
5 employment, etc., and with the fees incurred for this motion, the total fee should be multiplied by 2.0.
6 In this Memorandum, Plaintiff will first briefly recount the procedural history of this litigation
7 to give the fee petition some context. The petition will also show that: (1) the attorney fees incurred
8 are reasonable; (2) the number of hours spent is fully documented by detailed time records and reflect
9 both the exercise of billing judgment and the difficult burdens Plaintiff’s counsel faced in this action;
10 and (3) the hourly rates are well within the range of prevailing market rates for similarly complex
11 employment law litigation. In light of this, the Court should multiply the loadstar by a factor of 2.0
12 as an enhancement to reflect the great risk that Plaintiff’s attorneys took in agreeing to represent her
13 on a wholly contingent basis in this hotly-contested case, the favorable results achieved, the
14 undesirability of the action, the preclusion of other employment, and the public interest served by this
15 lawsuit.
16 2. RELEVANT FACTS
17 The history of this case shows that Plaintiff tried to resolve this case informally from the very
18 beginning, and Defendant has done nothing but stall and evade the courts. Plaintiff was represented
19 by a small Fresno law firm with two contingency-fee attorneys. Together, they stood up to this
20 employer and invested time and money so that Plaintiff could have her day in court. These attorneys
21 were not paid as the case moved along.
22 As this Court no doubt has observed, Plaintiff’s victory came at the cost of time, money and
23 hard work by her attorneys. The facts below are taken generally from the trial record and declarations
24 filed with this motion.
25 A. Bryant Whitten, LLP Agreed to Represent Plaintiff on a Contingency Basis
26 Plaintiff presented her potential case to attorney Shelley G. Bryant. Her documentation was
27 pretty thin, but the firm conducted a bit of due diligence and prepared to file suit.
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 3
1 The attorneys knew, when they agreed to take the case, that Plaintiff faced formidable odds
2 because the company was likely to do everything possible to avoid liability including hiring an
3 attorney, resisting discovery, stalling and delaying by abusing court procedures.
4 Despite all of this, the Bryant Whitten law firm agreed to represent Plaintiff on an entirely
5 contingent basis. The firm even agreed to front all costs in the case. [Bryant Dec. ¶¶ 30-32]
6 B. Defendant Ignored Warnings About The Potential For A Substantial Attorney’s Fee
7 Award
8 Attorney Bryant’s declaration, at paragraph 34 (Exhibit H), shows that Plaintiff’s attorneys
9 warned that these cases can get out of hand because of the attorney fees statute. On October 12, 2017,
10 Plaintiff sent a letter to Defendant stating that she was “s willing to postpone litigation and participate
11 in mediation...” This letter warned:
12 . . . a jury could return a verdict in favor of Plaintiff with a small damages award as
to one of the attorney-fee-shifting claims. This could be very costly for Wright as well.
13 We recently prevailed in a case where the jury awarded the plaintiff her $30,000
annual salary for lost wages and over three times that amount for emotional distress.
14
15 ... A court in conservative Merced County ordered Denny's to pay us over half a
million dollars in attorneys fees in that case because we prevailed on one
16 discrimination claim. . . . This is not the first time we have achieved that type of an
attorney's fee award in connection with a relatively small verdict. . . . So you see, even
17 a small verdict on any FEHA theory/claim can be very costly for an employer.
18 As you may know, employment law cases are factually intensive and require many
rounds of written discovery, depositions, and often involve motions to quash and
19 compel. . . . After all is said and done, the court is likely to award us attorney's fees.
If we prevail at trial on any theory, our fees will likely exceed $500,000.
20
21 Wright ignored the offer to mediate, moths passed, and the case progressed through litigation.
22 In March 2018, the parties talked about mediation again, but only because they had to sign an ADR
23 stipulation for filing with the court.
24 C. Discovery Was Labor Intensive
25 As is common in employment cases, discovery in this case was extensive. Early on, Plaintiff
26 served special interrogatories, requests for production, form interrogatories, and employment law form
27 interrogatories, a declaration regarding additional discovery and a proposed protective order.
28 Wright played games and refused to respond. Plaintiff’s attorneys wasted hours upon hours
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 4
1 meeting and conferring and filing multiple requests for pretrial discovery conferences, and stipulations
2 to resolve the dispute. This was the tone of written discovery.
3 D. Legal Issues
4 Though it was not factually complex, this case was legally complex. This was a difficult case
5 because itinvolved Labor Code claims that are not common. Jury duty retaliation is somewhat
6 obscure and the sick leave issue was brand new. AB1522 went into effect on July 1, 2016, just a few
7 months before Plaintiff used this type of sick leave and experienced retaliation. This required a lot
8 of research regarding the new law, exhaustion requirements, attorney’s fees and more. As a result,
9 a substantial amount of time was expended.
10 In a personal injury case, the work is typically focused on the extent of injuries. In a this case,
11 the work focused on many highly technical legal terms and their meaning and application.
12 E. Plaintiff Patiently Tolerated Defendant’s Antics
13 Defendant’s conduct in the case speaks for itself. Plaintiff waited patiently during all of the
14 delays and rescheduled hearings and the bankruptcy. She never gave up.
15 3. ARGUMENT
16 A. As The Prevailing Party, Plaintiff Is Entitled to Reasonable Attorneys’ Fees
17 As the prevailing party on a claim arising from Labor Code § 233 (sick leave retaliation),
18 Plaintiff is now entitled to an award of attorneys’ fees and costs. [Labor Code § 233 (“ . . an
19 employee may bring a civil action for the remedies provided by this section in a court of competent
20 jurisdiction. If the employee prevails, the court may award reasonable attorney’s fees.”)
21 B. The Court Should Calculate Attorneys’ Fees Based on A Lodestar Figure
22 Calculation of Plaintiff’s attorney’s fee begins with determination of the lodestar -- reasonable
23 hourly rates multiplied by the number of hours reasonably spent. [Ketchum v. Moses 24 Cal.4th
24 1122, 1131 (2001)] The starting point for determining an award of attorneys’ fees is the lodestar
25 figure. [Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d 25] The lodestar is calculated by
26 multiplying the hours worked by a reasonable hourly rate for those services. [Id.]
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 5
1 C. Plaintiff’s Attorneys’ Fees Are Reasonable
2 (1) The Number of Hours Claimed
3 The detailed time summary, based on contemporaneous records attached to and summarized
4 in the Bryant Declaration [Exhibit “M”], shows that Plaintiff’s counsel expended 93.8 hours of
5 attorney time on this case. The reasonableness of these hours is attested to by the declaration of
6 Shelley G. Bryant, a skilled and experienced employment law trial attorney. The total includes the
7 time spent preparing and litigating the fee application. [Serrano v. Unruh (Serrano IV) 32 Cal.3d, 621,
8 639 (1982); Estate of Trynin 49 Cal.3d 868, 874 (1989)]
9 “[A party] cannot litigate tenaciously and then be heard to complain about the time necessarily
10 spent by the plaintiff in response.” [Serrano IV, supra, 32 Cal.3d 621,at 638 (quoting Copeland v.
11 Marshall (D.C. Cir. 1980) 641 F.2d 880, 904). Given the long, drawn out nature of this litigation,
12 the hours expended were very reasonable and should be compensated in full.
13 (2) The Hourly Rates Are Reasonable
14 Plaintiff’s attorneys are entitled to compensation at hourly rates that reflect the reasonable
15 market value of their services in the community. [Serrano IV, 32 Cal.3d at 643] Reasonable rates
16 are those charged by private attorneys of comparable skill, reputation, and experience for similar
17 litigation, as measured by the prevailing rates charged by corporate attorneys of equal caliber. [Davis
18 v. City & County of San Francisco 976 F.2d 1536, 1547 (9th Cir. 1992), questioned on other grounds
19 by, McGinnis v. Kentucky Fried Chicken 51 F.3d 805 (9th Cir. 1994); Bihun v. AT&T Information
20 Systems 13 Cal.App.4th 976, 998 (1993) (affirming award of $450 per hour for FEHA action, in
21 1993)]
22 Based on the experience of counsel as reflected in appropriate market rates, the hourly rate
23 requested is $400 per hour throughout the litigation. Mr. Bryant is experienced as a trial attorney and
24 focuses his practice exclusively on employment litigation on behalf of employees. His hourly rate
25 during this litigation were at the very low end of the market rate for attorneys with similar experience
26 and skill. [Bryant Dec.]
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 6
1 (3) The Lodestar Calculation
2 The detailed billing summary attached to Mr. Bryant’s declaration is broken down by attorney,
3 hour and rate as follows:
4 Attorney Hours Rate Lodestar
5 Shelley G. Bryant 93.8 $400 $37,520
6 Plaintiff’s counsel is entitled to compensation for “all hours reasonably spent, including those
7 on fee-related matters.” [Serrano v. Unruh 32 Cal.3d 621, at 633; Vo v. Las Virgenes Municipal
8 Water District (2000) 70 Cal.App.4th 440, at 446 (“a party who qualifies for a fee should recover for
9 all hours reasonably spent unless special circumstances would render an award unjust,”)] Hours are
10 reasonably spent if, at the time the work was performed, counsels’ efforts were reasonable; whether,
11 in hindsight, Plaintiff’s counsel could have spent fewer hours is irrelevant. (See Wooldridge v.
12 Marlene Industries Corp. (6th Cir. 1990) 898 F.2d 1169, 1177.) Plaintiff’s fully-documented claim
13 is prima facie evidence of its reasonableness. [Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682]
14 Considerable deference should be shown to prevailing counsels’ judgment in preparing their case.
15 Counsels’ “sworn testimony that, in fact, it took the time claimed is evidence of considerable weight
16 on the issue of the time required in the usual case.” (Perkins v. Mobile Housing Bd. (11th Cir. 1988)
17 847 F.2d 735, 738.) Here, any lesser effort may well have jeopardized the excellent result Plaintiff
18 received. [Guam Soc’y of Obstetricians and Gynecologists v. Ada (9th Cir. 1996) 100 F.3d 691, 700]
19 Thus, the total lodestar for the work performed in the case is $37,520. However, the analysis
20 does not end here.
21 D. The Court Should Enhance The Lodestar Because This Was A Contingency Fee Civil
22 Rights Case
23 It has long been recognized, however, that the contingent and deferred nature of the fee award
24 in a civil rights or other case with statutory attorney fees require that the fee be adjusted in some
25 manner to reflect the fact that the fair market value of legal services provided on that basis is greater
26 than the equivalent noncontingent hourly rate. [Ketchum v. Moses, supra, 24 Cal.4th at 1132, 1133]
27 “‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 7
1 fair market value of his work if he is paid only for the second of these functions. If he is paid no more,
2 competent counsel will be reluctant to accept fee award cases.’” [ Id. at 1133, quoting with approval
3 from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480; see
4 also Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 394-395]
5 “Under our precedents, the unadorned lodestar . . . does not include any compensation for
6 contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.
7 The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the
8 attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike
9 a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level
10 compensation for such services, which typically includes a premium for the risk of nonpayment or
11 delay in payment of attorney fees.” [Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; Greene v.
12 Dillingham Constr. (2002) 101 Cal.App.4th 418, 427; Ramos v. Countrywide Home Loans (2000)
13 82 Cal.App.4th 615, 626 (holding that a fee of $800 per hour might be appropriate in “pioneering and
14 high risk cases)]
15 The primary purpose of these risk enhancements is to “compensate for the risk of loss
16 generally in contingency cases as a class.” [Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d
17 1407] The economic rationale for fee enhancement in contingency cases has been explained as
18 follows:
19 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
20 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
21 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.
22
A lawyer who both bears the risk of not being paid and provides legal
23 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
24 counsel will be reluctant to accept fee award cases. Such fee
enhancements are intended to compensate for the risk of loss generally
25 in contingency cases as a class. [Ketchum v. Moses (2001) 24 Cal. 4th
1122, 1133 (internal citations omitted)]
26
27 Indeed, the most common fee enhancer is the one for contingency risk. [Graham v. Daimler
28 Chrysler Corp. (2004) 34 Cal.4th 553, 579] Generally, the riskier the case, the greater the
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF
JUDGMENT, INCLUDING ATTORNEY’S FEES - Case No. 17CECG04095 Page 8
1 enhancement. [Id. at 583]
2 “It is an abuse of discretion to fail to apply a risk multiplier, however, when (1) attorneys take
3 a case with the expectation that they will receive a risk enhancement if they prevail, (2) their hourly
4 rate does not reflect that risk, and (3) there is evidence that the case was risky.” [Fischel v. Equitable
5 Life Assur. Soc’y of the United States (9th Cir. 2002) 307 F.3d 997, 1008]
6 A contingent multiplier is required in this case due to the contingent risk. Any case handled
7 on a contingency basis involves risk. However, the complexity of the issues and the fact the case
8 involved so many intricate employment law issues multiplied that risk.
9 Plaintiff’s counsel took this case with the expectation that a risk enhancement would be
10 applied if the case was successful; the billing rate used for calculation of the lodestar is the same rate
11 she charges clients who pay by the hour and thus does not reflect the contingent risk. The risk of
12 losing, and not being paid, in this case was amplified by the fact that attorneys for Plaintiff agreed to
13 front all costs in the case, in addition to working on a contingent basis. This case was indeed risky.
14 E. The Court Should Enhance The Lodestar Based On Other Factors
15 Aside from enhancing the lodestar for the contingency factor, the Court must consider other
16 factors such as the novelty and difficulty of the questions involved, the skill displayed in presenting
17 the case, the extent to which that case precluded other employment, and the delay in payment factor.
18 [See generally Serrano III, 20 Cal.3d at 49] These are objective standards that must be considered.
19 [Ketchum v. Moses (2001) 24 Cal.4th 1122] Moreover, these factors supporting lodestar
20 enhancement ma