Filed 8/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
BEATRIZ GUTIERREZ, B309098
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV07235)
v.
CHOPARD USA LTD.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael L. Stern, Judge. Affirmed.
Lewis, Brisbois, Bisgaard & Smith, Shane Singh and Tracy
D. Forbath for Defendant and Appellant.
Beverly Hills Trial Attorneys, Azar Mouzari and Nilofar
Nouri for Plaintiff and Respondent.
________________________________
Defendant and appellant Chopard USA Ltd. (Chopard)
appeals the trial court’s order of attorney fees and costs in favor
of plaintiff and respondent Beatriz Gutierrez (Gutierrez).
Gutierrez, who is legally blind, alleged a single cause of action
against Chopard under the Americans with Disabilities Act
(ADA), claiming that Chopard failed to ensure that its website
was adequately accessible to her. The parties executed and filed
a joint stipulation in which Chopard “agreed not to dispute
liability as it pertains to its website . . . and as to Plaintiffs
claims.” Chopard further stipulated that “it will not dispute that
Plaintiff is entitled to attorneys’ fees and costs under the shifting
provisions of Cal. Civil Code §§ 51 and 52, which apply in this
case.” 1
On appeal, Chopard argues that Gutierrez is not entitled to
attorney fees and costs. Alternatively, it argues that the trial
court’s award of fees was excessive and unreasonable. Gutierrez
contests these claims, and requests that this court clarify the
trial court’s ruling, which did not explicitly address her updated
request for attorney fees raised in her Reply to the Opposition to
the Motion for Attorney Fees.
We affirm the trial court’s order. We reject Gutierrez’s
request for additional attorney fees, as she failed to file a cross
appeal raising the contention.
FACTS AND PROCEDURAL HISTORY
Pleadings and Motions
Gutierrez filed the complaint against Chopard on February
28, 2019, alleging that Chopard unreasonably denied her, and
similarly visually-impaired individuals, equal access to its online
goods and services in violation of the Unruh Civil Rights Act
1 Allfurther statutory references are to the Civil Code
unless otherwise indicated.
2
(§ 51, et seq.) (Unruh Act) and Title III of the ADA (42 U.S.C.
12101, et seq.). Gutierrez is visually impaired and legally blind
(terms that are used interchangeably in the complaint). She
utilizes screen-reading software to access and read website
content on her computer. Screen-reading software is the only
available mechanism that enables her and others who do not
have sufficient residual eyesight to access websites such as
Chopard’s. Although numerous other businesses operate
websites and mobile applications that permit her to access goods
and services with the same convenience afforded to those who are
not visually impaired, Chopard’s website is not fully accessible to
the screen-reading technology that Gutierrez and other visually-
impaired persons use. There are well established industry
guidelines for making websites available to the visually impaired,
as well as guidelines recommended by the federal government.
Chopard’s website does not comply with these guidelines and
contains multiple barriers to use by screen-reading software.
Gutierrez attempted to access Chopard’s website on numerous
occasions and encountered access barriers. Chopard lacked
policies regarding the centralized maintenance of their website
that would ensure that it was, and would continue to be, fully
and equally accessible to Gutierrez and other visually-impaired
persons. Gutierrez sought injunctive relief limited to a cost of
$15,000 or less, statutory minimum damages limited to $4,000
per violation under section 52, subdivision (a), reasonable
attorney fees and costs under section 52, subdivision (a),
prejudgment interest, and costs of suit.
Chopard moved to strike the complaint, and the trial court
denied the motion. Chopard filed its answer, and moved for
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summary judgment. The motion for summary judgment was also
denied.
Joint Stipulation and Settlement Agreement
On January 7, 2020, the parties filed a Joint Stipulation
Re: Conditional Settlement of All Claims (Joint Stipulation) with
the trial court. Gutierrez’s attorney signed for her as plaintiff,
and attorney Shane Singh signed for Chopard as its attorney. As
pertinent here, the Joint Stipulation states:
“Defendant has agreed not to dispute liability as it pertains
to its website, www.chopard.com/us under the applicable website
accessibility guidelines, and as to Plaintiff’s claims.
“Defendant has also agreed that it will not dispute that
Plaintiff is entitled to attorneys’ fees and costs under the fee
shifting provisions of Cal. Civil Code §§ 51 and 52, which apply in
this case.
“The parties have agreed that attorneys’ fees and costs
arising from this matter will be determined by noticed motion
brought by Plaintiff, and request that this Court retain
jurisdiction over this matter to decide this dispute.
“The Parties agree that Defendant shall retain all rights to
oppose any motion relating to attorneys’ fees and costs, based on
relevant legal authority.
“The compromise of the damages to Plaintiff will be
memorialized by a written settlement agreement.”
In August 2020, the parties executed a Confidential
Settlement Agreement and Release (Settlement Agreement). 2
2 The Settlement Agreement is confidential and not
contained in the record on appeal.
4
Motion for Attorney Fees and Costs
On August 21, 2020, Gutierrez moved the court for an
award of attorney fees and costs. She stated that Chopard had
stipulated that it would not dispute her entitlement under
sections 51 and 52 to attorney fees; the only issue to be
determined was the reasonable amount of fees and costs.
Gutierrez sought attorney fees of $81,250 for 162.5 hours of work
at a rate of $500 per hour. Gutierrez did not request a multiplier
or time worked by the firm’s non-attorney staff, amounting to
approximately 30 hours. Gutierrez requested costs in the amount
of $14,045.67, for a total award of $95,295.67. The motion was
supported by counsels’ declarations, detailed time sheets, the
parties’ Joint Stipulation, a table of comparable awards, orders
granting attorney fees and costs, the Laffey Matrix of billing
rates by years of legal practice experience, Thompson Reuters
Legal Billing Report for California by geographic region, and
articles discussing rising billing rates.
Chopard filed an opposition to Gutierrez’s motion for
attorney fees on September 1, 2020. The opposition argued that
the motion for attorney fees should be denied because service was
untimely, there had been no finding of liability under sections 51
and 52, and Gutierrez’s lawsuit was not a “catalyst” for equitable
relief. Alternatively, Chopard argued that the fees and costs
Gutierrez requested were unreasonable and excessive, and
should not exceed $36,202.88. The following were attached to the
opposition: the declaration of Chopard’s counsel, Shane Singh;
the court’s minute order dated August 6, 2020, advancing the
hearing on the motion; an e-mail from Gutierrez’s counsel to
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Singh, dated August 21, 2020, attaching the motion; and Proof of
Service for Notice of Motion for Attorney Fees and Costs dated
August 21, 2020. Chopard concurrently filed a request for
judicial notice of settlement agreements Chopard had entered
into with other plaintiffs.
In his declaration, Mr. Singh suggested that the Joint
Stipulation submitted and relied upon by Gutierrez could not be
a basis for her request for attorney fees and costs, declaring: “[the
Settlement Agreement] supersedes and replaces all previous
agreements, including the agreements contained in the Joint
Stipulation re: Conditional Settlement.” As proof of the
Settlement Agreement’s terms, Mr. Singh also declared that
“[w]ithout Defendant admitting liability, the Parties agreed that
Plaintiff was the prevailing party in this matter in regard to
attorney’s fees and costs.” (Bolding and underlining omitted.)
Gutierrez filed a reply to the opposition on September 8,
2020, attaching counsel’s supplemental declaration; the Joint
Stipulation; and counsel’s timesheets. The reply argued that
service was timely, it should be undisputed that Gutierrez was
entitled to attorney fees and costs per the terms of the Joint
Stipulation and representations on the record, and that
Chopard’s objections to the amount of attorney fees and costs
were baseless, self-serving, and arbitrary. In the conclusion of
the reply, Gutierrez made an updated request for $91,150.00 in
attorney fees and $14,045.67 in costs, for a total award of
$105,195.67 for work performed as of the filing of the reply.
A hearing on the motion for attorney fees and costs was
held on September 15, 2020. The trial court’s minute order dated
September 15, 2020 reflects that the court granted the motion
and awarded Gutierrez $81,250.00 in attorney fees and
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$14,045.67 in costs, for a total award of $95,295.67, the amounts
she had requested in her moving papers.
Order and Judgment
The trial court filed its order granting attorney fees and
costs on September 28, 2020. The trial court approved
Gutierrez’s counsel’s billable rate of $500 per hour and found it
reasonable for the work completed during the litigation; approved
the 162.5 hours counsel spent on the litigation and found the
hours to be reasonable; and approved the $14,045.67 in costs
expended, which it also found reasonable.
The trial court filed its judgment for attorney fees and costs
on the same day. The judgment reflects that the court granted
the motion and awarded Gutierrez $81,250.00 in attorney fees
and $14,045.67 in costs, for a total award of $95,295.67, plus
post-judgment interest at the rate of ten percent per anum
pursuant to section 685.010, to accrue upon entry of judgment.
Notice of Appeal
Chopard timely appealed on November 25, 2020. Chopard
filed a notice designating the record on appeal on December 7,
2020, stating that the oral proceedings of the hearing on the
motion for attorney fees and costs was not reported by a court
reporter, and that Chopard would be proceeding by settled
statement.
7
Settled Statement
Sometime thereafter, Chopard filed a proposed settled
statement with the trial court that is not contained in the record.
Gutierrez responded on January 28, 2021, requesting changes to
the proposed settled statement. The proposed revisions included
a summary of the arguments in the motion and a listing of the
attached documents. On February 16, 2021, the trial court
ordered Chopard to correct the settled statement to incorporate
Gutierrez’s proposed revisions, stating that the revisions
“accurately reflect the court’s rulings.”
On March 9, 2021, Chopard filed the following proposed
settled statement:
“On September 15, 2020, Judge Stern, having received the
briefing submitted by the parties, allowed the parties to be heard
on the motion. Counsel for plaintiff and defendant both appeared
at the hearing. Defendant opposed the tentative ruling in
plaintiff’s favor and argued plaintiff’s motion should be denied
because: (1) the terms of the stipulation do not entitle plaintiff to
her fees and costs because it was superseded by the Settlement
Agreement; (2) Civil Code sections 51 and 52 do not entitle
plaintiff to her fees and costs because there has been no finding of
“liability” under the Unruh Act; and (3) the catalyst argument
also does not entitle plaintiff to her fees and costs because
changes to defendant’s website accessibility were not prompted
by plaintiff’s suit. Additionally, defendant argued the amount of
fees and costs plaintiff sought were unreasonable and should be
reduced to a total of $36,202.88 based on the following grounds:
(1) plaintiff’s counsel’s hourly rate was excessive and should be
lowered to $300/hrs. [sic]; (2) plaintiff’s counsel’s summaries of
8
her billing entries were vague and showed block billing; and (3)
plaintiff’s counsel billed for clerical work. After hearing the
parties’ arguments, the court made limited remarks that the case
should have been settled earlier. Having received the briefs
submitted in this case and reviewed the arguments made by
counsel in the brief and at the hearing, the Court found without
further explanation that: (1) plaintiff was the prevailing party
under Civil Code section 51 and 52 and entitled to attorneys fees
and costs and (2) plaintiff’s counsel’s hourly rate and hours spent
on the case was [sic] reasonable. The Court granted plaintiff’s
motion in its entirety, awarding the amount of $81,250 in fees
and $14,045.67 in costs, as submitted by plaintiff in the motion,
for a total award of $95,295.67. The Court did not address the
additional fees and cots [sic] plaintiff’s counsel included in the
reply. Specifically, plaintiff updated her request for fees to
$91,150.00, reflecting the worked performed as of the filing of the
reply, with costs of $14,045.67 for a total requested award of
$105,195.67. The Court also ordered for: (1) counsel to meet and
confer regarding the proposed judgment and (2) plaintiff to file a
notice of ruling and proposed judgment by September 24, 2020.
The Court further ordered Defendant to file any objections by
that date.”
On April 12, 2021, the trial court certified the proposed
settled statement, but noted the following under “corrections
required”: “The ‘proposed settled statement’ appears consistent
with the appellant’s contentions on appeal but is inconsistent
with the court’s February 16, 2021 minute order.” 3
3 Thereis no February 16, 2021 minute order in the record.
The court was likely referring to its February 16, 2021 order,
which the proposed settled statement did not comply with in full.
9
DISCUSSION
Standard of Review
Courts “generally review an award of attorney fees for
abuse of discretion. However, we independently review the legal
basis for an attorney fee award. [Citation.] Under some
circumstances, this may be a mixed question of law and fact
warranting a deferential standard of review. [Citation.] But
where the material facts are not in dispute, our review is de novo.
[Citations.]” (R.W.L. Enterprises v. Oldcastle, Inc. (2017) 17
Cal.App.5th 1019, 1025.)
The Trial Court Did Not Err by Awarding Attorney Fees
and Costs Under the Unruh Act
The principal relief Chopard seeks on this appeal is stated
plainly in the conclusion to its opening brief: Chopard asks this
court to reverse the trial court’s judgment “because Gutierrez is
not entitled to attorney fees.” The brief is signed by its counsel,
Mr. Singh, who also signed and caused to be filed in the trial
court the Joint Stipulation in which Chopard promised “it will
not dispute that Plaintiff is entitled to attorneys’ fees.” When
asked at oral argument to justify an appeal disputing Gutierrez’s
entitlement to fees in the face of its promise not to, Chopard’s
counsel 4 attempted to avoid the Joint Stipulation by referencing
Mr. Singh’s declaration filed in the trial court. Specifically,
4 Despite being the only attorney listed on Chopard’s
appellate briefs, Mr. Singh did not appear for argument; Chopard
was represented at argument by one of Mr. Singh’s colleagues.
10
counsel pointed to Mr. Singh’s statement that the Settlement
Agreement “supersedes and replaces” all of the “agreements
contained in the [Joint Stipulation].”
Chopard’s attempt to avoid application of the Joint
Stipulation is not well-taken. The Settlement Agreement is not
in our record, and regardless, we place little import on Mr.
Singh’s declaration containing his personal characterization of its
terms. But of greater significance, at oral argument Chopard’s
counsel conceded that the Joint Stipulation and the Settlement
Agreement are “substantively identical,” revealing that
Chopard’s reliance on the Settlement Agreement as containing
material terms, superseding its promises in the Joint Stipulation,
is at best a red herring.
We are accordingly troubled by Chopard’s desire to have us
reach the merits of an appeal arguing for specified relief in direct
contravention of its promise in a court filing not to, but we will
address appellant’s specific arguments below for the sake of
completeness.
Chopard first argues that Gutierrez is not entitled to an
award of attorney fees and costs under the Unruh Act, which it
asserts requires a finding or admission of liability. The precedent
Chopard relies on to support this theory is inapposite. “In Doran[
v. North State Grocery, Inc. (2006) ]137 Cal.App.4th [484,] 487
[(Doran)], the plaintiff sued the defendant supermarket for illegal
‘architectural barriers’ preventing wheelchair accessibility. (Id.
at p. 487.) The defendant made an offer to compromise pursuant
to section 998, which was accepted by the plaintiff. (Doran, at p.
487.) The section 998 offer agreed to a judgment in the plaintiff’s
favor in the amount of $10,000, but was silent as to the
apportionment of attorney fees and any admission of liability by
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the defendant. (Doran, at p. 487.) The plaintiff subsequently
argued he was entitled to attorney fees as the prevailing party,
and the trial court awarded him fees. (Id. at pp. 487–488.) On
appeal, the court analyzed the statutory language of the Unruh
Civil Rights Act and its legislative history. (Doran, at pp. 490–
491.) It noted Civil Code section 52, which sets forth the attorney
fees provision for the Unruh Civil Rights Act, only ‘authorizes an
award of attorney fees to a person “denied the rights provided in
Section 51, 51.5, or 51.6.”’ (Doran, at p. 490.) The court thus
concluded ‘the plain language makes clear that only those who
deny rights guaranteed by section 51, 51.5, or 51.6 are liable for
attorney fees.’ (Id. at p. 489.) In doing so, the court expressly
rejected the plaintiff’s argument that the general entitlement to
attorney fees by the prevailing party under Code of Civil
Procedure sections 1032 and 1033.5 should trump the language of
Civil Code section 52. (Doran, at pp. 490–491.) Because the
accepted offer to compromise was silent on whether the
defendant had violated the Unruh Civil Rights Act, the award of
attorney fees in favor of the plaintiff was reversed. (Doran, at pp.
491–493.)” (Linton v. County of Contra Costa (2019) 31
Cal.App.5th 628, 633–634 (Linton).)
In Linton, the plaintiff argued that a settlement agreement
made under section 998 entitled her to attorney fees because it
provided her the right to seek attorney fees as “‘allowed by law’”
(Linton, supra, 31 Cal.App.5th at p. 631), and as the “prevailing
party” under Code of Civil Procedure section 1032 she was
entitled to attorney fees (id. at pp.632–633). The trial court ruled
that Linton was not entitled to attorney fees because both the
California Disabled Persons Act (Civ. Code, § 54 et seq.; (DPA))
and the Unruh Act, under which her claims were brought,
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required a finding of liability, and there was not a finding of
liability in the settlement offer. (Ibid.) On appeal the court held
that the language of the settlement agreement was
unambiguous—Linton could pursue attorney fees “‘allowed by
law,’” which she had done unsuccessfully. (Id. at p. 636.) Her
mistaken belief that her attorney fees were “allowed by law”
because she believed that either the settlement or her
designation as the prevailing party would equate to a finding of
liability did not support reformation of the agreement. (Id. at pp.
636–637.) The appellate court held that “a prevailing party is not
automatically entitled to attorney fees merely by virtue of
prevailing, but must demonstrate such an entitlement via
contract, statute, or law.” (Id. at p. 633.)
The circumstances in the present case vary significantly
from those in Doran and Linton. The Doran court observed that
“Doran was not compelled to accept North State’s offer to
compromise and, indeed, could have tendered a counteroffer that
included an apportionment of the attorney fees or a statement of
North State’s liability under section 51.” (Doran, supra, 137
Cal.App.4th at p. 492.) Unlike Doran, Gutierrez negotiated for
attorney fees and costs. Whereas, in Doran, the settlement offer
was silent regarding apportionment of attorney fees and the
defendant’s liability, here the parties executed and filed with the
court a Joint Stipulation in which Chopard expressly “agreed not
to dispute liability as it pertains to its website,
www.chopard.com/us under the applicable website accessibility
guidelines, and as to Plaintiff’s claims. . . [and also] agreed that it
will not dispute that Plaintiff is entitled to attorneys’ fees and
costs under the fee shifting provisions of Cal. Civil Code §§ 51
and 52, which apply in this case.” This case is also
13
distinguishable from Linton. In Linton, although the settlement
permitted the plaintiff to seek attorney fees “allowed by law,” it
did not state that the plaintiff was entitled to attorney fees.
Here, Chopard stipulated not to dispute its liability or to dispute
that Gutierrez was entitled to attorney fees and costs under the
Unruh Act, which it agreed was the applicable statute. Chopard
is bound by the Joint Stipulation and cannot rely on semantics to
avoid its import. The Joint Stipulation left unresolved the issue
of the amount of the award to which Gutierrez was entitled, but
there is no question that Gutierrez was entitled to an award,
with the amount to be decided by the trial court following a
noticed motion by Gutierrez.
Reasonableness of Attorney Fees and Costs
Chopard alternatively argues that the trial court abused its
discretion by awarding attorney fees and costs that were
excessive and unreasonable. A trial court’s determination of the
amount of attorney fees to award is reviewed for an abuse of
discretion. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495,
1509.) “‘“[A]n experienced trial judge is in a much better position
than an appellate court to assess the value of the legal services
rendered in his or her court, and the amount of a fee awarded by
such a judge will therefore not be set aside on appeal absent a
showing that it is manifestly excessive in the circumstances.”
[Citation.] “The only proper basis of reversal of the amount of an
attorney fees award is if the amount awarded is so large or small
that it shocks the conscience and suggests that passion and
prejudice influenced the determination.”’ [Citation.]” (Faton v.
Ahmedo (2015) 236 Cal.App.4th 1160, 1173.)
14
As the party challenging the fee award, the appellant has
the affirmative obligation to provide an adequate record so that
we may assess whether the trial court abused its discretion;
failure to do so may result in affirmance. (Vo v. Las Virgenes
Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 (Vo) [“‘“A
judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent. . . .”’”].)
Chopard has not met this burden. Although the trial
court’s order and judgment awarding attorney fees are in the
record, they do not reflect the trial court’s reasons for accepting
Gutierrez’s calculations of the amount of attorney fees and costs.
Chopard’s proposed settled statement, which the trial court
certified, simply restates its own arguments and the trial court’s
ultimate ruling. It contains none of the court’s reasoning or
analysis. The hearing was not reported, and without a reporter’s
transcript, there is no basis upon which to review the reasoning
underlying the trial court’s determination of the amount of
attorney fees to award. We cannot conclude that the trial court
abused its discretion on the record before us. (See Vo, supra, 79
Cal.App.4th at p. 447 [affirming judgment where record was
inadequate to conclude the trial court abused its discretion in
determining whether the attorney fee was reasonable].)
As we have explained, the trial court correctly concluded
that Gutierrez was entitled to recover attorney fees and costs.
We therefore affirm the portion of the trial court’s order setting
the amount of reasonable attorney fees.
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Updated Request for Attorney Fees
In the respondents’ brief, Gutierrez contends the trial court
should have awarded attorney fees for work performed up to the
filing of the reply, but she failed to file a cross-appeal raising the
issue. “As a general matter, ‘“a respondent who has not appealed
from the judgment may not urge error on appeal.”’ [Citation.]
“To obtain affirmative relief by way of appeal, respondents must
themselves file a notice of appeal and become cross-appellants.”’
(Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560,
585.) Because Gutierrez did not file a cross-appeal from the trial
court’s order awarding attorney fees and costs, she has forfeited
her challenge to the order seeking affirmative relief.
DISPOSITION
We affirm the trial court’s order awarding attorney fees to
Gutierrez. Gutierrez is entitled to attorney fees and costs on
appeal.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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