Filed 8/18/23 Haaverson v. Tavistock Freebirds, LLC CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
NATALIE HAAVERSON,
Plaintiff and Respondent, A164043
v. (Alameda County Super. Ct. No.
TAVISTOCK FREEBIRDS, LLC et al. RG-19-030716)
Defendants and Appellants.
Defendants and appellants Tavistock Freebirds, LLC, Freebirds World
Burrito, and Tavistock Freebirds Holdings, LLC (collectively, Tavistock)
appeal after the trial court granted terminating sanctions against Tavistock,
struck its answer to plaintiff and respondent Natalie Haaverson’s complaint,
and entered a default judgment. The judgment awarded $25,000 in penalties
pursuant to the Private Attorneys General Act (PAGA) (Lab. Code § 2698 et
seq.), $48,793.90 in costs, and $709,620 in attorney fees, which included a 3.0
multiplier. Tavistock argues that the award of $758,413.90 in attorney fees
and costs should be vacated because the complaint failed to allege any
specific amounts of fees or costs as required under Code of Civil Procedure
section 580.1 Alternatively, Tavistock argues that the trial court erred in
1 All further statutory references are to the Code of Civil Procedure
unless otherwise specified.
1
awarding a 3.0 multiplier as well as certain items of costs. We disagree with
Tavistock’s arguments and affirm.
I. BACKGROUND2
In August 2019, Haaverson filed a PAGA action against Tavistock that
alleged various Labor Code violations. The complaint’s prayer for relief
requested “civil penalties according to proof” as well as “reasonable attorney’s
fees and costs.” The civil case cover sheet indicated that the amount
demanded exceeds $25,000.
A. Motions to Compel
After Tavistock responded to Haaverson’s initial written discovery
requests, Haaverson filed three motions to compel further responses from
Tavistock which included requests for monetary sanctions. Among other
items, Haaverson argued that Tavistock failed to produce requested
timekeeping and payroll records for the aggrieved employees. The trial court
granted all three motions and awarded monetary sanctions to Haaverson. In
its amended order, the court required that Tavistock produce all edited or
altered timekeeping and payroll records for the aggrieved employees.
Trial was set to begin on April 26, 2021. In February 2021, Tavistock
filed a petition for coordination of this action with two overlapping PAGA
actions filed in Sacramento and Los Angeles. The Sacramento action, Stolz v.
Tavistock Freebirds, LLC (Stolz), was filed in July 2014 but was stayed
pending arbitration of the plaintiff’s individual claims. In March 2021,
Tavistock filed an ex parte application in this action to stay litigation and
vacate the trial date pending the resolution of the petition for coordination.
The trial court denied the application for lack of good cause. Tavistock then
2 This section only recites the facts that are relevant to the issues on
appeal.
2
filed a motion to dismiss Haaverson’s PAGA claims based on
unmanageability, which the court also denied.
B. Motion for Sanctions
Around this same time in March 2021, Haaverson filed a motion
requesting terminating, evidentiary, issue, and further monetary sanctions
against Tavistock (sanctions motion). Haaverson argued that despite the
trial court’s earlier order compelling Tavistock to produce various documents,
including time and payroll records, Tavistock continued to withhold these
documents from production. In its supplemental opposition, Tavistock
argued that its failure to produce time and payroll records was the result of
excusable neglect and not any willful noncompliance and that such records
had since been produced. Haaverson countered that these records were
produced only after she filed the sanctions motion even though Jennifer Zion,
Tavistock’s person most knowledgeable, testified at her earlier deposition
that timekeeping and payroll records were provided to Tavistock’s counsel in
early 2020, well before the court granted the initial motions to compel.
On April 26, 2021, the trial court began an evidentiary hearing on the
sanctions motion. The court heard testimony from Ms. Zion as well as from
Tavistock’s IT manager, Tim Richard.3 The trial also began, and the parties
filed their motions in limine. At the continued hearing on April 29, 2021,
Tavistock’s counsel informed the court that Stolz had settled and that
Haaverson’s PAGA claims were subsumed in the Stolz settlement.
Tavistock’s counsel requested leave to amend its answer “to plead settlement
and release, [res] judicata and [collateral] estoppel” as well as a stay of this
action until the Stolz settlement was approved. The trial court denied both
3 The hearing on Haaverson’s motion for sanctions spanned across
several days between April 12, 2021 and May 5, 2021.
3
requests, stating that the settlement had not yet been approved and that a
stay would be prejudicial since the parties were in trial.
On May 10, 2021, the trial court granted terminating sanctions against
Tavistock. In its amended order, the court highlighted that during the
evidentiary hearing, “Mr. Richard stated that no one at Tavistock Freebirds
ever requested that he collect the data of edited punch records from any
California location” even though these records “were stored on the back office
computers.” The court also stated that “Ms. Zion admitted that she did
nothing to search for those initialed edited punch reports before the
California locations were closed [in March 2020] and that she took no steps to
ensure that general managers were not disposing of the paper copies of the
edited punch reports on which the employees signed off.” The court
concluded that Tavistock willfully failed to produce its pay and time records
in a timely manner, failed to maintain these records, and “engaged in a
pattern of litigation and discovery abuse with respect to their time records []
and pay records.” The court struck Tavistock’s answer to the complaint,
issued a judgment by default against Tavistock pursuant to section 2023.030,
and set the matter for a default prove-up hearing.
C. Default Judgment
At the default prove-up hearing, Haaverson’s expert testified that the
maximum PAGA penalty for Tavistock’s various Labor Code violations
totaled $3,451,650. Following the hearing, Haaverson submitted
supplemental briefing in support of her request for prevailing party attorney
fees and costs. In the brief, she requested a 3.0 multiplier. On August 24,
2021, the court entered a default judgment against Tavistock for the
following amounts as requested by Haaverson: (1) $3,451,650 as the PAGA
penalty; (2) $709,620 in attorney fees which included a 3.0 multiplier; (3)
4
$20,494.50 in paralegal and legal assistant fees; (4) $22,799.40 in litigation
costs; and (5) $5,500 in administration costs to distribute the PAGA penalty.
The judgment totaled just over $4.2 million.
Tavistock filed several post-judgment motions, including a motion to
vacate the judgment. Tavistock argued, among other things, that the
judgment was void because it exceeded the amount pled in the complaint and
that no evidence supported the court’s 3.0 multiplier award. At the hearing
on the post-judgment motions, the trial court gave Haaverson two options:
she could agree to an amended judgment that reduced damages to $25,000 to
conform with section 580 or she could amend the complaint to pray for a
different amount of damages. The court cautioned, however, that it did not
know what ramifications the Stolz settlement would have if Haaverson
elected to amend the complaint. The court further stated that if Haaverson
amended the complaint, “the slate would be wiped clean” with respect to
Tavistock’s prior misconduct and there would have to be some future
misconduct to justify reinstating the sanctions order. Given this,
Haaverson’s counsel elected to amend the judgment but argued that the
attorney fee award should remain the same. The court agreed and held that
the fee award, including the multiplier, was still valid.
On November 5, 2021, the trial court entered an amended default
judgment which included a reduced PAGA penalty of $25,000. The amounts
awarded for attorney fees, paralegal and legal assistant fees, and costs, which
totaled $758,413.90, remained unchanged from the original default judgment.
Tavistock timely appealed the amended default judgment.
5
II. DISCUSSION4
A. Standard of Review
The first issue presented on appeal is whether the amended default
judgment exceeded the relief demanded in the complaint; thereby, rendering
it void as beyond the trial court’s jurisdiction. This is a pure question of law
that is reviewed de novo. (Dhawan v. Biring (2015) 241 Cal.App.4th 963,
968.) The second issue is whether the trial court erred in applying a 3.0
multiplier to the award of attorney fees. This is reviewed for abuse of
discretion, “which is found only where no reasonable basis for the court’s
action can be shown.” (Ramos v. Countrywide Home Loans, Inc. (2000) 82
Cal.App.4th 615, 621.)
B. “Relief” Under Section 580, Subdivision (a) Does Not Include
Attorney Fees or Costs.
Tavistock argues that the amended default judgment’s award of
attorney fees and costs is void because the complaint did not allege any
specific amounts for fees or costs as required under section 580. Tavistock
further argues that the complaint’s prayer for “reasonable attorney’s fees and
costs” did not provide it with adequate notice of the maximum judgment it
could be exposed to as due process requires. We are unpersuaded by these
arguments.
A default judgment “cannot exceed” the maximum amount of “relief”
“demanded in the complaint, in the statement [of damages] required by
Section 425.11, or in the statement [of punitive damages] provided for by
Section 425.115 . . . .” (§ 580, subd. (a), italics added.) This holds true
whether a default judgment is taken after a defendant’s failure to answer or
after an answer is stricken due to a defendant’s discovery abuse. (Greenup v.
4 We grant Haaverson’s unopposed request for judicial notice.
6
Rodman (1986) 42 Cal.3d 822, 828 (Greenup).) The pertinent question is
whether the term “relief” in section 580, subdivision (a) includes attorney fees
and costs. We conclude it does not.
As with any question of statutory interpretation, we begin by looking at
the “plain meaning” of the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d
727, 735.) “The meaning of a statute may not be determined from a single
word or sentence; the words must be construed in context, and the provisions
relating to the same subject matter must be harmonized to the extent
possible.” (Ibid.) Indeed, courts should “ ‘read every statute “with reference
to the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.” ’ ” (Calatayud v. State of California
(1998) 18 Cal.4th 1057, 1065, quoting People v. Pieters (1991) 52 Cal.3d 894,
898–899.)
To that end, we find the reasoning in Simke, Chodos, Silberfeld &
Anteau, Inc. v. Athans (2011) 195 Cal.App.4th 1275 (Simke) persuasive.
There, the Court of Appeal held that under section 580, a complaint need not
specify the dollar amount of attorney fees in order for the plaintiff to recover
such fees in a default judgment following terminating sanctions against the
defendant. (Id. at p. 1278.) Noting there was “no universal definition or
plain meaning of ‘relief,’ ” the court initially looked to “related statutes and
rules” for guidance. (Id. at p. 1286.)
First, Simke cited Judicial Council form CIV-050 in support of its
holding. (See Sass v. Cohen (2020) 10 Cal.5th 861, 898 (Sass) [looking to
Judicial Council Forms in construing statute]; Los Angeles County Dept. of
Children and Family Servs. v. Superior Court (2008) 162 Cal.App.4th 1408,
1419 [same].) As referenced in section 580 itself, a statement of damages is
used to demand “relief” in personal injury or wrongful death actions pursuant
7
to section 425.11. And Judicial Council Form CIV-050 is the mandatory form
a plaintiff must use for that statement of damages. (See Cal. Rules of Court,
rule 1.31(a)–(c); Gov. Code, § 68511; 23 pt. 4 West's Ann. Code, Court Rules
(2006 ed.) appen. A, pp. 477, 479.) The form, however, makes no mention of
attorney fees or costs as part of the “relief” demanded “even though fees are
recoverable by statute in several types of personal injury and wrongful death
actions.” (Simke, supra, 195 Cal.App.4th at p. 1287.) This omission suggests
that “relief” under section 580, subdivision (a) does not include attorney fees
and costs.
Second, Simke pointed to the “Request for Entry of Default’ ” form
(default form). (Judicial Council Forms, form CIV-100). Pursuant to section
585, in routine default cases where a defendant fails to answer, a plaintiff
must first use that form to apply for entry of default. (See Cal. Rules of
Court, rule 1.31(a)–(c); Gov.Code, § 68511; 23 pt. 4 West's Ann.Code, Court
Rules (2006 ed.) appen. A, pp. 477, 479.) The form includes separate spaces
for a plaintiff to enter amounts sought as damages and amounts sought as
attorney fees and costs. As the court in Simke observed, this form
“distinguishes between the ‘relief’ permitted by section 580—‘Demand of
complaint’ or ‘Statement of damages’—on the one hand, and items not
governed by section 580—‘Interest,’ ‘Costs,’ and ‘Attorney fees’—on the other
hand, indicating that [monetary] ‘relief,’ as used in section 580, means
‘damages.’ ” (Simke, supra, 195 Cal.App.4th at pp. 1287–1288.)
We agree with Simke. If the term “relief” “demanded in the complaint”
under section 580 is to be harmonized with the statement of damages and the
default form, then “relief” as referenced in subdivision (a) cannot be read to
8
include attorney fees or costs because that would render it inconsistent with
the forms.5
Simke further noted that the plaintiff was not required to request entry
of default because he had sought a default judgment as part of his request for
terminating sanctions. (Simke, supra, 195 Cal.App.4th at p. 1289.) Under
section 2023.030, subdivision (d)(4), a trial court may impose a terminating
sanction by issuing “[a]n order rendering a judgment by default against” a
party. Likewise, here, Haaverson was not required to submit a default form
because the trial court entered a default judgment as part of its terminating
sanctions against Tavistock.
We acknowledge that there is a discrepancy between attorney fees and
costs sought in a routine default case where a plaintiff must provide notice of
5 Tavistock’s argument that the term “relief” as used in section 580,
subdivision (a) must mean attorney fees based on the use of that same term
in sections 580, subdivision (b)(1) and 585, subdivision (a) ignores the
language in section 580, subdivision (a) referencing the statement of
damages, which does not require the inclusion of any attorney fees or costs.
Upon construing the term in the context of that reference in section 580,
subdivision (a) (see Pearson v. State Social Welfare Bd. (1970) 54 Cal.2d 184,
194–195 [“words used in a statute may, as applied to the words with which
they are combined and to the words with which they were intended to be
related, have connotations which they might not have when used in context
with, or in relation to, other language or where used to express a different
purpose”]), section 580, subdivision (a) only prohibits the “grant[ing]” of relief
in a default judgment that “exceed[s]” the relief “demanded in” the statement
of damages. It does not limit the trial court’s ability to grant other relief,
such as attorney fees or costs, that does not have to be demanded in the
statement of damages. Thus, the fact that the term “relief” as used in
sections 580, subdivision (b)(1) and 585, subdivision (a) includes attorney fees
does not mean that the “relief . . . demanded . . . in the statement” of damages
as referenced in section 580, subdivision (a) must as well. Accordingly, for
consistency, the “relief … demanded in the complaint” in section 580,
subdivision (a) cannot mean that attorney fees are not recoverable if the
complaint does not include a specific fee amount.
9
the amount in the default form prior to the entry of default and a case like
this one where a plaintiff is not required to provide pre-default notice of the
amount. (See Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479 [“a party
seeking entry of a default judgment must apply for all of the relief
sought—including attorney fees—when application is made for entry of
default”].) But we agree with Simke that providing a final pre-default notice
of the attorney fees sought when a plaintiff moves for terminating sanctions
does not further the purpose behind section 580—i.e., to inform a defendant’s
choice as to whether to pursue a defense. (Greenup, supra, 42 Cal.3d at
p. 829.) In the context of terminating sanctions, “[b]y the time such notice
would be given, the defendant would no longer have any choice in the matter.
Rather, the trial court, in ruling on the motion for terminating sanctions,
would decide whether the right to defend had been lost.” (Simke, supra, 195
Cal.App.4th at p. 1293.)
Further, the routine “default judgment procedure [under section 585] is
‘designed to clear the court’s calendar and files of those cases which have no
adversarial quality.’ ” (Garcia v. Politis, supra, 192 Cal.App.4th at p. 1479.)
This avoids for example, separate post-judgment motions for attorney fees.
(Ibid.) Requiring the amount of attorney fees to be included in the standard
request for entry of default form therefore promotes judicial economy and
efficiency. The same is not true for a default judgment entered as part of
terminating sanctions.
Case law confirms that “relief” under section 580, subdivision (a) does
not mean attorney fees or costs. In Greenup, supra, 42 Cal.3d at page 829,
our high court held that “due process requires notice to defendants, whether
they default by inaction or by willful obstruction, of the potential
consequences of a refusal to pursue their defense. Such notice enables a
10
defendant to exercise his right to choose—at any point before trial, even after
discovery has begun—between (1) giving up his right to defend . . . at the cost
of exposing himself to greater liability.” Greenup however, was specific in its
holding that section 580 limited the amount of damages a plaintiff could
recover in a default judgment. (Ibid.)
Tavistock asks that we extend the reasoning in Greenup and hold that
“relief” under section 580, subdivision (a) means attorney fees as well. We
decline to do so for several reasons. First, the California Supreme Court
itself has, in the past, indicated that section 580 does not require that a
complaint specify the amount of attorney fees sought before a plaintiff can
recover these fees in a default judgment. In Horton v. Horton (1941) 18
Cal.2d 579 (Horton), the Supreme Court held that the trial court’s award of
$200 in spousal support and $400 in attorney fees “was directly responsive to
the wife’s prayer for reasonable sums for support and maintenance, attorney
fees and costs” so the default judgment “cannot be said to transgress the
limitation of section 580.” (Id. at p. 583.)
Although the California Supreme Court has overruled Horton’s holding
that the amount of requested support and maintenance (damages) need not
be specified in the complaint in order to recover those damages in a default
judgment, it made no mention of Horton’s holding that attorney fees and
costs are recoverable in a default judgment where the complaint seeks a
“reasonable sum” but does not allege specific amounts. (Sass, supra, 10
11
Cal.5th at p. 874.)6 We therefore presume that this holding remains valid.7
This presumption is supported by a careful review of Sass.
In Sass, the high court held that a plaintiff alleging an accounting
claim was not exempt from the requirements of section 580 and “must plead a
specific dollar amount to support a default judgment awarding monetary
relief.” (Sass, supra, 10 Cal.5th at p. 891.) The court, however, focused solely
on damages and held that “section 580 is reasonably understood to require
that the amount of damages granted in default shall not exceed ‘the amount
demanded’ in the complaint.” (Id. at p. 876, italics added.) The issue of
attorney fees was not before the high court and was not addressed in its
opinion. (Id. at p. 892.) The Court of Appeal, however, did address the issue
and held that, for purposes of a default judgment, “the operative complaint
must allege the amount of ‘relief’ sought for damages, but not prejudgment
interest, attorney fees, or costs.” (Sass v. Cohen (2019) 32 Cal.App.5th 1032,
1040.)
The California Supreme Court in Sass did state that “[b]ecause section
580 is not limited to complaints in which money is requested, the
Legislature’s use of the broad term ‘relief’ is understandable.” (Sass, supra,
10 Cal.5th at p. 875.) Tavistock contends this statement supports its position
6 The high court also left open the question of whether “a plaintiff using
a standard form petition to dissolve her marriage need only put the
defendant on notice that she was seeking a type of relief, and not a specific
amount.” (Sass, supra, 10 Cal.5th at p. 884.)
7 This is consistent with the Supreme Court’s subsequent holding in
Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494–495, which
concluded that the trial court exceeded its authority under section 580 in
awarding attorney fees in a default judgment because the complaint failed to
set forth any prayer for attorney fees. We read this holding to mean only that
a complaint must provide notice that attorney fees are sought, not that a
specific amount must be provided.
12
that “relief” under section 580 encompasses attorney fees. We disagree. In
making the statement, the high court was merely noting that non-monetary
forms of relief such as equitable relief are sometimes sought and that “it
would not make sense to say in those circumstances that “ ‘[t[he amount
granted to plaintiffs . . . cannot exceed that demanded in the complaint.’ ”
(Ibid.) The court was not holding that relief under section 580, subdivision
(a) includes attorney fees. Indeed, the high court made it clear that its
holding was limited to damages when it concluded, “because the Legislature
did not separately address instances in which money damages are at stake in
drafting section 580, it is sensible that the statute uses the more
encompassing word ‘relief.’ ” (Ibid., italics added.)
Tavistock’s due process arguments are also unpersuasive. From a due
process standpoint, there is a material difference between providing an
estimate of monetary damages that have already been incurred and
providing an estimate of attorney fees that are not yet incurred. Indeed, the
amount of fees to be incurred necessarily depends on how aggressively a
defendant elects to respond. Thus, any estimate of attorney fees at the outset
of litigation is wholly speculative.
Nonetheless, Tavistock contends that because the plaintiff in Sass,
supra, 10 Cal.5th 861 was required to provide notice of an estimated dollar
amount to support a default judgment in her accounting action, a plaintiff
should likewise be required to provide notice of the amount of attorney fees
sought. But damages in an accounting action are not wholly speculative at
the outset of litigation because the information needed to compute those
damages already exists. (See Sass, supra, 10 Cal.5th at p. 869 [accounting
claim assumes that information needed to compute damages “is within the
control of the defendant”].) Thus, the high court in Sass held that “despite
13
their relative lack of knowledge about the precise amounts owing, plaintiffs
bringing accounting claims [] are generally able to estimate their damages.”
(Id. at p. 864.) The same is not true for prospective attorney fees which are
simply unknowable by either party at the time the complaint is first filed.
In any event, the due process concerns raised by Tavistock are far less
pressing in a default judgment entered as a terminating sanction. Before a
default judgment can be taken, due process requires that a complaint include
an estimate of the monetary damages sought so that a defendant can make
an informed choice “at any point before trial, even after discovery has
begun—between (1) giving up his right to defend in exchange for the
certainty that he cannot be held liable for more than a known amount, and
(2) exercising his right to defend at the cost of exposing himself to greater
liability.” (Greenup, supra, 42 Cal.3d at p. 829.) In many cases, “[t]he higher
the figures an individual names in a complaint, the less likely it is that the
defendant will ‘giv[e] up his right to defend.’ ” (Sass, supra, 10 Cal.5th at
p. 899.)
Requiring that a plaintiff include an estimate of attorney fees that may
be incurred up to the point of trial in the complaint would not meaningfully
assist a defendant in making any informed choice. Unlike damages which
are more or less fixed in their amount and do not depend on the manner of
default, attorney fees will vary greatly depending on whether a default is
taken following a defendant’s failure to answer or, like here, following
lengthy discovery, motion practice, and terminating sanctions. Because of
the speculative nature of any attorney fee estimate at the outset of litigation,
a plaintiff is in no better position than a defendant to make that estimate.
Indeed, a defendant is arguably in a better position than the plaintiff to
estimate the amount of fees to be incurred by the plaintiff because that
14
amount depends, in large part, on how the defendant chooses to proceed in
litigation. Therefore, a complaint’s request for “reasonable attorney fees”
provides sufficient notice to a defendant that fees are sought while
recognizing the near impossibility for the plaintiff to predict what the actual
fees will be.8
Tavistock argues that estimating attorney fees is not impossible
because “it is a common practice for attorneys to provide a fee estimate
budget to their clients.” While this may be true, it is also common practice
for attorneys to regularly update these budgets as litigation progresses since
initial budgets seldom reflect an accurate estimate of the actual fees and
costs that are ultimately incurred. Based on Tavistock’s argument, a plaintiff
should also be required to regularly amend the complaint to provide a
defendant with an up-to-date estimate of incurred and expected fees and
costs throughout the litigation up until trial. We decline to read the law in
this manner and conclude that neither section 580 nor due process requires
that a complaint specify the amount of attorney fees or costs sought.
C. The Trial Court Did Not Err in Awarding $758,413.90 in Attorney
Fees and Costs to Haaverson.
1. Haaverson Was the Prevailing Party.
Tavistock next contends that Haaverson should not be considered the
prevailing party for purposes of attorney fees based on the discussion of
Janssen v. Luu (1997) 57 Cal.App.4th 272 (Janssen) in Simke, supra, 195
8 Forcing a plaintiff to estimate the attorney fees to be incurred at the
outset of litigation would be largely meaningless to a defendant. This is
because a reasonably prudent plaintiff will inflate the amount of fees sought
to account for the worst case scenario. This inflated amount will either be
disregarded by the defendant as illusory or compel the defendant to defend
the case even though it would be more economical to default.
15
Cal.App.4th 1275, a case Tavistock simultaneously urges us not to follow
elsewhere in its brief. We find little merit in Tavistock’s contention.
In Janssen, the plaintiff’s complaint for breach of contract “prayed for
damages ‘in excess of $3,000.00 and according to proof,’ [and] attorney fees,
costs of suit . . . .’ ” (Janssen, supra, 57 Cal.App.4th at p. 274.) Following the
defendant’s default and a prove-up hearing, a default judgment was entered
in the amount of $24,825.04, and attorney fees and costs of $2,123.99. (Ibid.)
On appeal, the Court of Appeal held that under section 580, the plaintiff was
only entitled to a default judgment for $3,000 and that any excess amount
must be stricken, along with amounts awarded for fees and costs. (Id. at
p. 279.)
Approximately 14 years later in Simke, the same court explained that
Janssen did not strike fees and costs because no amount was stated in the
complaint but “[r]ather, because the underlying award of damages should
have been $3,000, not the $24,825.04 the trial court awarded, attorney fees of
$2,006.99, when compared to $3,000 in damages, were not justified and had
to be reversed.” (Simke, supra, 195 Cal.App.4th at p. 1291.) The court
compared the result in Janssen as “analogous to a complete and unqualified
reversal of liability, thereby requiring that an award of attorney fees to the
plaintiff be vacated.” (Ibid.) As Janssen itself did not state this as the basis
for striking attorney fees, the court in Simke was to some extent speculating
as to Janssen’s reasoning, and we decline to view such speculation as
persuasive authority.
In any event, this is a PAGA action, and not a breach of contract action
like Janssen. The law is well settled that “ ‘ “plaintiffs may be considered
‘prevailing parties’ for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
16
sought in bringing suit.” ’ ” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.)
A representative PAGA action “to recover civil penalties ‘is fundamentally a
law enforcement action designed to protect the public and not to benefit
private parties.’ ” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Here,
Haaverson succeeded on her PAGA claim by way of a default judgment
awarding civil penalties after obtaining terminating sanctions against
Tavistock. The trial court’s reduction of the penalties here was done
pursuant to the requirements of section 580 and was not tied in any way to
Tavistock’s corresponding liability. The trial court further commented that it
was highly skeptical that Stolz would have settled absent Haaverson’s
diligent prosecution and pressure in bringing this case to trial. Given this,
we find that Haaverson was the prevailing party. (See Atempa v. Pedrazzini
(2018) 27 Cal.App.5th 809, 815, 829 [affirming attorney fee award of
$315,014 in PAGA action even though the plaintiff only obtained $31,074 in
civil penalties because the plaintiff “successfully obtained their award of civil
penalties”].)
2. The Trial Court Did Not Abuse its Discretion in Awarding a
3.0 Multiplier.
Tavistock next argues that the attorney fees awarded were excessive
because the trial court failed to justify its application of a 3.0 multiplier. We
disagree and find that the court properly acted within its discretion in
applying the multiplier.
Factors used to justify a multiplier or enhancement to the lodestar
amount of fees include “(1) the novelty and difficulty of the questions
involved, (2) the skill displayed in presenting them, (3) the extent to which
the nature of the litigation precluded other employment by the attorneys,
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[and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1132, italics added.)
“A trial court’s exercise of discretion concerning an award of attorney
fees will not be reversed unless there is a manifest abuse of discretion.”
(Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.) This includes the
trial court’s decision to apply a multiplier. (Id. at p. 1241.) Discretion
however, “must not be exercised whimsically, and reversal is appropriate
where there is no reasonable basis for the ruling or the trial court has applied
‘the wrong test’ or standard in reaching its result.” (Id. at p. 1239) That a
reviewing court would have exercised its discretion differently if it had issued
the fee award amount does not justify reversal. (Harmon v. City and County
of San Francisco (2007) 158 Cal.App.4th 407, 428.)
In supporting the application of the multiplier, the trial court observed
that Haaverson’s counsel “displayed a very high degree of skill in litigating
this matter” and that “[t]his has been a difficult case” that “has gone on for a
long time.” The court further stated that Haaverson’s counsel “provided a
great service . . . to the Court and to the people of the State of California and
the employees that were involved here in prosecuting this action at great risk
to themselves, a pecuniary risk, and did display a high degree of skill.”
Because there is ample evidence in the record to support these observations,
we cannot conclude that the court abused its discretion in awarding a 3.0
multiplier.
In reaching this conclusion, we find no evidence to support Tavistock’s
argument that the 3.0 multiplier was used to punish Tavistock. Though the
court commented that Haaverson had to “litigate the case despite the lack of
cooperation from defense counsel” and “work extremely hard . . . in light of
[Tavistock’s] failures,” this was to further support the court’s position that
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Haaverson’s counsel was exceptionally diligent in bringing this case to trial,
which the court believed contributed to the Stolz settlement. Accordingly, we
do not find that the trial court’s decision was arbitrary or whimsical and
conclude it had a reasonable basis in applying a 3.0 multiplier.
3. Administrative Costs
Tavistock argues that the award of $5,500 in administration costs to
distribute the PAGA penalty is not recoverable under section 1033.5 because
such administration costs are not “reasonably necessary to the conduct of the
litigation.” We disagree.
Section 1033.5 sets forth the items of costs which may or may not be
recovered in a civil action. “An item not specifically allowable under
subdivision (a) nor prohibited under subdivision (b) may nevertheless be
recoverable in the discretion of the court if ‘reasonably necessary to the
conduct of the litigation rather than merely convenient or beneficial to its
preparation.’ (§ 1033.5, subd. (c)(2).)” (Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774.) Here, Haaverson’s counsel represented to
the trial court that this administration cost was necessary in order to
distribute the funds to a large group of [408] employees in this PAGA action.
We agree. The trial court acted within its discretion in awarding these
administration costs as they are not prohibited under section 1033.5,
subdivision (b) and are reasonably necessary to effectuate the distribution of
the PAGA penalty to the over 400 employees who are entitled to their share.
Indeed, such costs are routinely approved in PAGA cases. (See Moniz v.
Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 69 [approval of $78,000 for costs,
fees, and settlement administrator costs]; Amaro v. Anaheim Arena
Management, LLC (2021) 69 Cal.App.5th 521, 533 [approval of $43,500 in
settlement administrator costs].)
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4. Legal Assistant Fees
Lastly, Tavistock contends that Haaverson’s legal assistant fees are not
recoverable under section 1033.5. Tavistock argues that “Haaverson’s
counsel requested $22,799.40 in paralegal and legal assistant costs, without
differentiating between the two, as legal assistants are not paralegals.” No
further support or argument is provided in Tavistock’s opening brief as to
why these fees are not “reasonably necessary to the conduct of the litigation”
under section 1033.5, subdivision (c)(2). In its reply brief, Tavistock raises a
new argument that Haaverson’s paralegal and legal assistant fees are not
recoverable because the evidence Haaverson submitted (a declaration by
Haaverson’s counsel which stated the total number of hours spent by the
paralegals and assistants and their customary hourly rate) did not provide a
reasonable basis to determine whether the hours were reasonably expended.
As Tavistock waited until its reply brief to raise this argument for the
first time and provided no explanation as to why this argument could not
have been raised earlier in its opening brief, we will not consider it.
(Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765; Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 56.)
III. DISPOSITION
The judgment is affirmed. Haaverson is entitled to recover her costs on
appeal.
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CHOU, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
Haaverson v. Tavistock Freebirds / A164043
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