Filed 2/2/21 Velez v. Kohl Building Maintenance CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GILBERTO VELEZ, B300253
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC668124)
v.
KOHL BUILDING
MAINTENANCE, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard L. Fruin, Judge. Affirmed.
Clark Hill, Dean A. Olson and Autumn L. Moore for
Defendant and Appellant.
Lavi & Ebrahimian, Nick Ebrahimian, Vincent Granberry,
Jordan Bello; Law Office of Daniel J. Bramzon & Associates and
Kevin Hermansen for Plaintiff and Respondent.
______________________
Defendant Kohl Building Maintenance, Inc. (Kohl) appeals
from the trial court’s June 27, 2019, order awarding $141,165 in
attorney fees in a California Fair Employment and Housing Act
(FEHA) matter to plaintiff and prevailing party Gilberto Velez.
Kohl raises two challenges to the fee award on appeal. First,
Kohl argues that Velez should have filed his complaint as a
limited civil matter. Because he did not do so, Kohl contends the
trial court should have declined to award any attorney fees to
Velez pursuant to Chavez v. City of Los Angeles (2010) 47 Cal.4th
970 (Chavez). Second, Kohl argues the amount of the fee award
is inflated. In particular, Kohl argues the award is out of
proportion when compared with the $25,000 judgment; the trial
court did not consider Velez’s degree of success; and the trial
court did not sufficiently reduce the fee award to account for
Velez’s counsel’s inadequate record-keeping, overstaffing, or
duplicative work. We find no abuse of discretion, and therefore,
we affirm.
BACKGROUND
A. Kohl Terminates Velez’s Employment
Kohl employed Velez as a maintenance worker until the
summer of 2016. According to the complaint, during the course of
Velez’s employment, a pipe burst and released water and debris
over his body. Thereafter, Velez developed a rash that eventually
required hospitalization. Velez filed a workers’ compensation
claim, and on August 26, 2016, Kohl terminated Velez.
On March 13, 2017, Velez entered into a compromise and
release relating to his workers’ compensation claim. The
settlement addressed injuries to certain portions of Velez’s body
as well as injuries listed as “internal” and “psyche/stress.” The
settlement also included compensation for “earnings.”
2
In May or June 2017, Velez started working for a new
employer, who paid Velez a higher hourly rate than the rate he
received at Kohl.
B. Summary of Litigation Activities and Jury Verdict
On or about September 12, 2016, Velez hired the law firm
of Lavi & Ebrahimian. On July 10, 2017, after receiving a right
to sue letter, Velez filed a complaint against Kohl alleging eight
causes of action, including disability discrimination, failure to
provide reasonable accommodation, failure to engage in the
interactive process, retaliation, and wrongful termination. Velez
alleged he suffered damages in excess of $25,000, and prayed for
compensatory damages, past and future lost income, emotional
distress damages, punitive damages, attorney fees and costs, and
interest. On at least one occasion, Velez’s counsel represented to
the trial court that Velez was not seeking any lost income for the
time period for which Velez received workers’ compensation.
However, Velez did not concede the workers’ compensation
settlement compensated him for emotional distress during this
period.
According to the attorneys’ billing records, between April
2018 through April 2019, attorneys at Lavi & Ebrahimian
propounded and responded to written discovery, took depositions,
engaged in motions practice relating to discovery, drafted
motions in limine and other pretrial documents, attended the
final status conference, participated in settlement negotiations,
drafted trial examinations, attended trial, and provided trial
support. Two Lavi & Ebrahimian associates, a 2006 law school
graduate and a 2010 law school graduate, performed these tasks;
partner N. Nick Ebrahimian billed less than 10 hours for his
work on the matter.
3
In January 2019, the Mathews Law Firm associated in as
trial counsel for Velez. Two attorneys from the Mathews Law
Firm worked on the matter: Charles T. Mathews, a litigator with
over 40 years of experience, and Andrew Mathews, a 2018 law
school graduate.
As a result of discussions during pretrial status
conferences, only three causes of action were submitted to the
jury: disability discrimination, failure to accommodate, and
retaliation.
Trial began on March 26, 2019, and ended on April 4, 2019.
The jury found in favor of Velez on his claims for discrimination
and failure to accommodate, but did not find in his favor on the
retaliation claim. The jury found that Kohl did not act with
malice, oppression, or fraud. The jury awarded $25,000 in
“compensatory damages for the economic and non-economic
harm” Velez sustained as a result of Kohl’s conduct.
C. Motion for Attorney Fees
Velez moved for a total of $492,000 in attorney fees as a
prevailing party of a FEHA matter pursuant to Government Code
section 12965, subdivision (b). Velez based his request upon a
lodestar of $328,000 and a 1.5 multiplier. Lavi & Ebrahimian
sought reimbursement for 339 hours at the rate of $525 per hour
and 7.1 hours at the rate of $750 per hour. The Mathews Law
Firm sought reimbursement for 128.35 hours at an hourly rate of
$1,000 and 109 hours at an hourly rate of $150. In support of
Velez’s motion, each of the five attorneys who worked on the
matter submitted a declaration attaching their billing records.
Velez also submitted an expert declaration attesting to the
reasonableness of the attorney hourly rates.
4
In opposition to the motion, Kohl argued that pursuant to
Chavez, supra, 47 Cal.4th 970, the trial court should exercise its
discretion to deny attorney fees because the FEHA matter should
have been filed as a limited civil action. Kohl also argued that to
the extent the trial court awarded any attorney fees to Velez, the
amount requested was unreasonably inflated as a result of over-
staffing and duplicative work.
The trial court heard Velez’s motion for attorney fees on
June 26, 2019. After Kohl began to argue that the trial court
should apply Chavez, the trial court responded, “I’m not going to
apply Chavez, so let’s just drop that. They had success in a jury
trial in a discrimination case.” The following day, the trial court
issued a three-page ruling on Velez’s motion for attorney fees.
In its written ruling, the trial court awarded $141,165 in
attorney fees to Velez. The trial court explained several reasons
for awarding an amount lower than the $492,000 requested by
Velez’s counsel. First, the trial court found counsel sometimes
used block-billing; some of the time notations were unreliable,
especially when time records between counsel were compared;
and counsel did not explain their time-keeping practices under
oath.
Second, Velez failed to demonstrate that “all of the projects
to which his attorneys devoted time were tasks required for a
successful result.” The trial court observed that Velez dropped
some claims and some of the evidence Velez’s counsel pursued
“came to naught.” Further, Velez’s plea for economic loss had to
be reduced for the period that Kohl demonstrated Velez received
workers’ compensation.
Third, Velez’s fee request did not include any reduction for
the time that it took the Mathews firm to “get up to speed.” The
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trial court also observed that after the Mathews firm was
associated in, Lavi & Ebrahimian remained on the matter, and
there was some “overlap” among the attorneys preparing the
matter for trial.
Fourth, the two Lavi & Ebrahimian associates each
examined a witness briefly at trial. However, Charles Mathews
conducted all other examinations. Accordingly, there was no
reason for each of the three attorneys to be present and billing for
each day in trial or at each final status conference hearing prior
to trial.
The trial court also observed that the hourly rate of $525
for each of the two associates at Lavi & Ebrahimian appeared to
be inflated when weighed against their ability to perform tasks
efficiently. Indeed, the trial court reduced the hourly rate for
three attorneys on the matter: Charles Mathews from $1,000 to
$600 per hour, and for the two associates from $525 to $350 per
hour. Further, the trial court recollected that Andrew Mathews
was a newly-admitted attorney whose participation on the matter
was for training, and therefore should not be included in the fee
award. Thus, the trial court struck all of the time billed by
Andrew Mathews.
Applying the reduced hourly rates and striking the time for
Andrew Mathews, the trial court determined the lodestar was
$201,165. The trial court then deducted $60,000 from this
amount because “an amount must be deducted for the time
required by the Mathews firm to learn the case from attorneys in
the Ebrahimian firm who nonetheless continued to represent
[Velez]; an amount must be deducted because of the overlap and
communications required among the four attorneys preparing the
case for trial; an amount must be deducted for the claims that
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had no merit . . . ; and the trial expense should be reduced for
having an unnecessary number of attorneys present throughout
the trial.”
Additionally, although Velez’s counsel may have taken on
the matter pursuant to a contingency arrangement, the bulk of
the work was incurred during trial preparation between
December 2018 and April 5, 2019. Accordingly, the trial court
concluded a multiplier was not supported.
The trial court also observed that the verdict of $25,000
“was at the boundary between limited and unlimited jurisdiction.
The court, however, declines [Kohl’s] request that the court on
that basis reject an award of reasonable attorney’s [sic] fees.”
Kohl timely appeals the trial court’s award of attorney fees.
DISCUSSION
A. Standard of Review
We review an award of attorney fees under FEHA for an
abuse of discretion. (Chavez, supra, 47 Cal.4th at p. 989.)
“Under this standard, we do not disturb the award unless the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner.” (Stratton v. Beck (2018) 30
Cal.App.5th 901, 915.) On appeal, it is the appellant’s burden to
demonstrate the trial court abused its discretion in awarding
attorney fees. (Gonzalez v. Santa Clara County Dept. of Social
Services (2017) 9 Cal.App.5th 162, 169.)
B. The Trial Court Did Not Abuse Its Discretion in
Awarding Attorney Fees to Velez
Kohl argues that pursuant to Chavez, the trial court should
not have awarded any attorney fees to Velez.
7
In Chavez, the jury awarded the plaintiff a total of $11,500
in damages, and the plaintiff then sought $870,935.50 in attorney
fees. (Chavez, supra, 47 Cal.4th at p. 976.) In its written order
denying attorney fees to the plaintiff, the trial court observed,
“that [the] plaintiff’s case at trial had been ‘overwhelmingly
devoted to liability,’ that none of [the] plaintiff’s witnesses gave
any direct testimony about economic damages, and that [the]
plaintiff had offered no rebuttal to the testimony of [the]
defendants’ expert, who put [the] plaintiff’s economic loss . . . at
‘just under $1,000.’ According to the court, [the] plaintiff’s
evidence of noneconomic damages ‘was equally sparse . . . .’ ” (Id.
at p. 981.) Thus, the trial court exercised its discretion pursuant
to Code of Civil Procedure section 1033, subdivision (a)1 to deny
attorney fees to the plaintiff. (Ibid.)
The California Supreme Court held that Code of Civil
Procedure section 1033, subdivision (a) “gives a trial court
discretion to deny attorney fees to a plaintiff who prevails on a
FEHA claim but recovers an amount that could have been
recovered in a limited civil case.” (Chavez, supra, 47 Cal.4th at
p. 976.) Notably, the court provided guidance to assist trial
courts in evaluating when they should exercise such discretion.
To determine whether a matter should have been filed as a
limited civil case, “the trial court should consider FEHA’s
underlying policy of encouraging the assertion of meritorious
1 Code of Civil Procedure section 1033, subdivision (a)
states: “Costs or any portion of claimed costs shall be as
determined by the court in its discretion in a case other than a
limited civil case in accordance with Section 1034 where the
prevailing party recovers a judgment that could have been
rendered in a limited civil case.”
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FEHA claims, and it should evaluate the entire case in light of
the information that was known, or should have been known, by
the plaintiff’s attorney when the action was initially filed and as
it developed thereafter.” (Id. at p. 986.) “[T]he trial court should
exercise caution to avoid ‘hindsight bias,’ which is the recognized
tendency for individuals to overestimate or exaggerate the
predictability of events after they have occurred.” (Id. at pp. 986-
987.) “If, based on the available information, the plaintiff’s
attorney might reasonably have expected to be able to present
substantial evidence supporting a FEHA damages award in an
amount exceeding the damages limit . . . for a limited civil
case . . . , the trial court should not deny attorney fees merely
because, for example, the trier of fact ultimately rejected the
testimony of the plaintiff’s witnesses or failed to draw inferences
that were reasonably supported, although not compelled, by the
plaintiff’s evidence. But if, to the contrary, the trial court is
firmly persuaded that the plaintiff’s attorney had no reasonable
basis to anticipate a FEHA damages award in excess of the
amount recoverable in a limited civil case, and also that the
action could have been fairly and effectively litigated as a limited
civil case, the trial court may deny, in whole or in part, the
plaintiff’s claim for attorney fees and other litigation costs.” (Id.
at p. 987, italics added.)
Kohl argues that Velez “knew at the time he filed his
[c]omplaint [on July 10, 2017,] that he could not recover damages
exceeding $25,000.” In particular, Kohl notes that Velez’s
damages were limited to the “few weeks” between March 2017
(the date through which Velez received workers’ compensation),
and May or June 2017 (when Velez accepted a position that paid
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him a higher hourly wage). Accordingly, Kohl contends the trial
court should have denied attorney fees to Velez.
Notwithstanding his conclusory claim that Velez “knew” he
would not recover more than $25,000, Kohl does not actually
demonstrate this was so. Indeed, the record reflects that Velez’s
counsel reasonably could have expected to present substantial
evidence that Velez was entitled to an award greater than the
jurisdictional limit. The jury awarded Velez $25,000 for his
discrimination and failure to accommodate claims—a mere one
cent less than the amount that would have qualified the matter
as one of unlimited civil jurisdiction. (Code Civ. Proc., § 85,
subd. (a).) Moreover, the jury considered a third cause of action
for retaliation as well as a claim for punitive damages. Success
on either of these claims could have increased Velez’s award
above the $25,000 threshold.2 That the trier of fact ultimately
rejected these claims is not dispositive. (See Chavez, supra, 47
Cal.4th at p. 987.) Further, as Velez correctly argues in his brief,
the amount to be awarded for non-economic harm such as pain
and suffering is inherently subjective and not easily amenable to
concrete measurement. (See Beagle v. Vasold (1966) 65 Cal.2d
166, 172 [“the jury is asked to evaluate in terms of money a
detriment for which monetary compensation cannot be
ascertained with any demonstrable accuracy”].)
Kohl construes the trial court’s statement that it was “not
going to apply Chavez, so let’s just drop that,” as the trial court’s
2 The parties do not argue the merits of either Velez’s
retaliation claim or his claim for punitive damages. Further, the
appellate record does not include any record of the trial
proceedings.
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refusal to be bound by Supreme Court precedent. We do not
interpret the trial court’s statement so narrowly. Chavez does
not compel a trial court to deny an award of attorney fees to a
plaintiff when he recovers an amount of damages that falls below
the jurisdictional threshold. Rather, Chavez clarified that a trial
court has the discretion to do so when plaintiff’s counsel knew or
should have known at the time the complaint was filed that
damages would not exceed the jurisdictional limit. (Chavez,
supra, 47 Cal.4th at p. 987.) The trial court acknowledged Velez
“had success in a jury trial in a discrimination case,” and that the
verdict of $25,000 “was at the boundary between limited and
unlimited jurisdiction.” The court’s statement that it was “not
going to apply Chavez” was consistent with its determination that
the facts of the current case did not support a denial of attorney
fees under the guidance outlined in Chavez. Accordingly, Kohl
fails to show the trial court abused its discretion in awarding
attorney fees to Velez.
C. The Trial Court Did Not Abuse Its Discretion in
Awarding $141,165 in Attorney Fees
Kohl next argues the trial court abused its discretion in
awarding $141,165 in attorney fees. Specifically, Kohl argues the
trial court failed to take into account Velez’s degree of success,
and contends the fee award is out of proportion to the $25,000
judgment. Kohl argues the trial court should have reduced the
fee award to account for overstaffing on the matter and
duplication of work. Kohl also contends the court abused its
discretion in awarding Velez’s “counsel the time they requested,”
notwithstanding the court’s finding that time entries were
unreliable.
11
Kohl’s arguments are without merit. First, we are mindful
that “ ‘[a] rule of proportionality [between the amount of damages
and an attorney fee award] would make it difficult, if not
impossible, for individuals with meritorious civil rights claims
but relatively small potential damages to obtain redress from the
courts.’ ” (Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal.App.4th 140, 164.) Accordingly, we do not find an attorney
fee award of $141,165 following a five-day jury trial that resulted
in a $25,000 judgment in Velez’s favor to be so out of proportion
that it is arbitrary, capricious, or patently absurd.
Second, as set forth in its three-page ruling on Velez’s
motion for attorney fees, the trial court accounted for each of the
issues Kohl raises here when it reduced the fee award from
$492,000 to $141,165. For example, rather than award Velez’s
counsel all the time they requested, the trial court struck all 109
hours sought by attorney Andrew Mathews in part because it
“[was] described in block billing format.” Further, after
significantly reducing the hourly rate for three of Velez’s
attorneys in part due to counsel’s inefficiency, the trial court
deducted $60,000 from the fee award expressly to address issues
of overstaffing, duplication of work, and Velez’s rate of success.
Thus, Kohl has not demonstrated that the trial court abused its
discretion in awarding $141,165 in attorney fees to Velez.
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DISPOSITION
The trial court’s June 27, 2019, order awarding attorney
fees in the amount of $141,165 is affirmed. Velez is to recover his
costs on appeal.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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