Nguyen v. Wells Fargo CA2/4 ( 2015 )

Filed 1/6/15 Nguyen v. Wells Fargo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JENNIE NGUYEN, B256375
Plaintiff, (Los Angeles County
Super. Ct. No. BC462248)
v.
WELLS FARGO & COMPANY AND
WELLS FARGO BANK, N.A.,
Defendants and Respondents
SHENOI KOES,
Movant and Appellant.
APPEAL from a judgment and order of the Superior Court of Los Angeles
County, Mark V. Mooney, Judge. Affirmed.
Shenoi Koes, Allan A. Shenoi, Daniel J. Koes, and Nneka Egbujiobi for Movant
Appellant.
Kading Briggs, Glenn L. Briggs, Theresa A. Kading, and Lisa M. Fike for
Defendants and Respondents.
Class counsel and appellant Shenoi Koes LLP (“Class Counsel”) challenges the
trial court’s order awarding $297,700 in attorney fees following the settlement of class
claims. Class Counsel contends that, by applying incorrect legal standards and relying on
hours expended in an earlier class action settlement against Wells Fargo (Madzounian v.
Wells Fargo), the court improperly reduced the award from the $584,055.46 Class
Counsel requested. We disagree and conclude that the court did not abuse its discretion
in awarding attorney fees of $297,700. We therefore affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Nguyen’s Claims
In May 2011, Plaintiff Jennie Nguyen (“Nguyen”) filed a Complaint against Wells
Fargo & Company and Wells Fargo Bank, N.A. (jointly, “Wells Fargo”). Nguyen, a
former Wells Fargo employee, alleges that she was named as a defendant in a federal
criminal complaint and subsequently arrested, but that she was never indicted or
convicted of any wrongdoing, and that the complaint against her was dismissed two
weeks after her arrest. Shortly thereafter, the Wells Fargo branch office where Nguyen
worked was robbed at gunpoint while she was on duty. Later, two Wells Fargo
investigators questioned Nguyen about the robbery as well as her prior arrest. Wells
Fargo subsequently terminated her, based on alleged violations of Wells Fargo’s Code of
Ethics and Business Conduct Policies. Nguyen alleged that after her termination Wells
Fargo refused to pay her for accrued vacation time.
On these allegations, Nguyen asserted class claims for violations of Labor Code1
section 432.7, violations of Code of Civil Procedure section 1786.53, subdivision (b),
unpaid wages, waiting time penalties, failure to furnish timely and accurate wage
statements, violations of Business and Professions Code section 17200 et seq. (“UCL”),
and violations of the Private Attorney General Act (“PAGA”). Nguyen also asserted
1
All future references are to the Labor Code unless otherwise stated.
2
individual claims for wrongful termination in violation of public policy, breach of the
implied covenant of good faith and fair dealing, and defamation.
B. Cariaga’s Claims
In October 2011, Nguyen filed a Second Amended Complaint adding plaintiff
Merry Cariaga (“Cariaga”). Cariaga alleged she resigned from Wells Fargo on February
17, 2011, but that Wells Fargo did not pay her until March 4, 2011. The Second
Amended Complaint includes Cariaga in the class claims for waiting time penalties and
for failure to furnish timely and accurate wage statements, as well as the derivative UCL
and PAGA claims.
Plaintiffs filed a Fourth Amended Complaint in September 2012. This amendment
added a new subclass, Subclass VI, defined as “all Wells Fargo former California
employees whose last date of employment was after January 18, 2011, and were [sic] not
timely paid all final wages.” Cariaga, on behalf of herself and Subclass VI (as later
redefined in the settlement agreement), eventually settled the waiting time penalty claim
and derivative UCL and PAGA claims. The remainder of Nguyen’s and Cariaga’s class
and individual claims were dismissed.
C. Madzounian v. Wells Fargo
In March 2009, plaintiff Sossi Madzounian commenced a putative class action in
Los Angeles Superior Court against Wells Fargo, captioned Madzounian v. Wells Fargo
Bank, National Association (“Madzounian”). The Madzounian complaint alleged class
action claims for unpaid overtime, failure to pay all wages owed upon termination, and
failure to pay wages timely upon termination under section 203. Madzounian voluntarily
dismissed her claims for unpaid overtime and failure to pay all wages owed upon
termination. In November 2010, the parties reached a class-wide settlement of
Madzounian’s section 203 claim for failure to pay wages timely upon termination. The
Madzounian court granted final approval of the settlement in August 2012.
The Madzounian settlement class consisted of approximately 15,000 members:
“all former Wells Fargo employees employed in California with a ‘termination date’ from
May 21, 2008 through January 18, 2011, who had at least a one-day gap between their
3
‘termination date’ and ‘check-issuance date’ according to Wells Fargo’s records.” Thus,
the settled Madzounian waiting time penalties claim was premised on the fact that Wells
Fargo delayed its payment of wages owed to terminated employees beyond the time
permitted by Labor Code sections 201 through 203.
The Madzounian settlement was structured as a common fund settlement and
resulted in a total settlement fund of $3,558,455. Counsel for Madzounian was awarded
$1,186,151.67 in attorney fees, which was 33 percent of the common fund. They
expended 458.3 hours of time valued at $324,644. Accordingly, counsel for Madzounian
recovered attorney fees 3.34 times greater than the lodestar value of their labor.
There is some dispute about when Class Counsel in this action became aware of
the Madzounian action and settlement. The record reveals that in July 2011—prior to the
October 2011 filing of the Second Amended Complaint adding Cariaga as a plaintiff—
counsel for Wells Fargo sent a letter to Class Counsel explaining that Wells Fargo had
recently entered into a class action settlement that was in the process of being
documented, which included “all former Wells Fargo employees employed in California
who had at least a one-day gap between their termination date and final check date.”
Although the letter did not name the Madzounian action, Wells Fargo’s August 2011 case
management statement expressly named Madzounian as a related case. Class Counsel
maintains that it did not learn of the class period—which ended less than one month
before Cariaga’s termination—until June 2012, when Nguyen received a copy of the
Madzounian class notice.
D. Wells Fargo’s Demurrer, Plaintiffs’ Discovery Motions, and the Mediations
Three years of litigation in the Nguyen/Cariaga case led to pleading challenges,
numerous discovery motions, and two mediations. In November 2011, Wells Fargo
demurred to class allegations made on behalf of Subclasses I through IV in the Second
Amended Complaint. This demurrer did not challenge the class or the waiting time
penalty claim that ultimately settled.
In April 2012, plaintiffs filed three motions to compel. None of the discovery
requests at issue was related to untimely payment of wages or pertained to Subclass VI,
4
which was not added until the plaintiffs filed the Fourth Amended Complaint in
September 2012. The record is silent on the outcome of these motions.
In March 2013, the parties participated in an unsuccessful mediation. In
September 2013, plaintiffs filed three more motions to compel. The parties subsequently
stipulated to take those three discovery motions off calendar so that the parties would
have additional time to meet and confer. In mid-November plaintiffs re-filed the same
three motions to compel. A significant portion of the discovery requests at issue
pertained to claims that were ultimately dismissed The case settled before the court had
an opportunity to rule on these motions.
On November 20, 2013, the parties participated in a second mediation, which was
successful.
E. The Settlement
During the second mediation the parties settled the claim for failure to pay wages
timely upon termination under Labor Code section 203 and the derivative UCL and
PAGA claims. The other class claims were dismissed without prejudice. The only class
that settled was a redefined Subclass VI, consisting of approximately 4,000 members:
“individuals whose employment with Wells Fargo in California terminated on or after
January 19, 2011, but on or before December 31, 2011 (the ‘Class Period’), who
terminated from an active status at Wells Fargo and who had at least a one-day gap
between their ‘termination date’ and ‘check issuance date’ according to Wells Fargo’s
records.” This Class Period immediately follows the Madzounian class period ending on
January 18, 2011.
The parties agreed to a fund of $400,000 for the settling class. The parties also
agreed that Wells Fargo would separately set-aside $600,000 for attorney fees, litigation
expenses, and costs, and that the court would decide Class Counsel’s award. The
$600,000 set-aside was not part of the $400,000 settlement fund. Wells Fargo insisted
and stipulated that no portion of the $600,000 would go to the settling class and that any
funds remaining after the court’s award would revert to Wells Fargo.
5
Approximately one-quarter of the class participated in the settlement, resulting in a
net recovery of $368 for each participating class member. Class Counsel maintains that
this per member net recovery is approximately $100 more than the per member net
recovery of class members who participated in the Madzounian settlement.
The court granted final approval of the class action settlement and entered
judgment on April 2, 2014.
F. The Motion for Attorney Fees and the Order Awarding Fees
Class Counsel filed a motion for attorney fees, litigation expenses, and costs in
February 2014, seeking an award of $584,055.46 in attorney fees and $15,944.54 for
litigation expenses and costs--the full $600,000 set aside by Wells Fargo pursuant to the
terms of the settlement. Class Counsel presented multiple bases of support for a
$600,000 award. First, Class Counsel contended that the 1,120 hours expended on the
action, multiplied by a reasonable hourly rate of $675, yielded a lodestar value, without
any multiplier, of $743,628–over $150,000 more than the fees requested. Class Counsel
also maintained that, even if only the 458 hours expended by counsel in Madzounian
were approved by the court, multiplied by the average hourly rate of $663,2 adjusted by a
multiplier of two (rather than Madzounian 3.34 multiplier), an award of $607,308 would
be justified.
Class Counsel’s motion was heard on March 20, 2014. The court awarded
attorney fees in the amount of $297,700. The court arrived at this sum by multiplying the
458 hours expended by counsel in Madzounian by a rate of $650 per hour. The court
adopted the $650 hourly rate from an approval Class Counsel had obtained in an
unrelated 2012 case. The court did not provide a justification for its use of the
Madzounian hours except for its comment that Class Counsel suggested the 458 hours as
an appropriate measure of labor expended on the settled claim.
2
This rate was suggested by Class Counsel in its motion for attorneys fees. See
footnote 6.
6
The court declined to apply a multiplier. Because the court considered that the
$650 hourly rate was already on the “high side,” it found that a multiplier was, “to a
certain extent,” already built in. The court also found that because the settlement was
limited to the Labor Code section 203 claim, the case was not complex, and that in light
of Madzounian, the case was not unique or risky enough to justify a multiplier.
Class Counsel now appeals the $297,700 attorney fee award.
STANDARD OF REVIEW
We review an award of attorney fees in a class action settlement under an abuse of
discretion standard. (Laffitte v. Robert Half Int’l Inc. (Laffitte) (Oct. 29, 2014, No.
B249253) __ Cal.App.4th __ [2014 Cal.App. Lexis 1059], at *8, mod. (Nov. 21, 2014);
Carter v. City of Los Angeles (2014) 224 Cal. App. 4th 808, 819.) “In particular, ‘[w]ith
respect to the amount of fees awarded, there is no question our review must be highly
deferential to the views of the trial court.’ [Citations.]” (Concepcion v. Amscan
Holdings, Inc. (Concepcion) (2014) 223 Cal. App. 4th 1309, 1319-20.) This is because
“‘“[t]he ‘experienced trial judge is the best judge of the value of professional services
rendered in his court, and while his judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly wrong’”—meaning that
it abused its discretion. [Citations.]’ [Citation.] “‘“‘“[T]he appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.”’ [Citations.]”
[Citation.] . . . We defer to the trial court’s discretion “because of its ‘superior
understanding of the litigation and the desirability of avoiding frequent appellate review
of what essentially are factual matters.’ [Citation.]” [Citation.] [Citation.]” (Taylor v.
Nabors Drilling USA, LP (2014) 222 Cal. App. 4th 1228, 1249; accord, Holguin v. DISH
Network LLC (2014) 229 Cal. App. 4th 1310, 1329; Collins v. City of Los Angeles (2012)
205 Cal. App. 4th 140, 159.) “A decision will not be reversed merely because reasonable
people might disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ [Citation.]” (Maughan v.
Google Tech., Inc. (2006) 143 Cal. App. 4th 1242, 1249-50 (Maughan).) The “[f]ees
approved by the trial court are presumed to be reasonable, and the objectors must show
7
error in the award.” (Consumer Privacy Cases (2009) 175 Cal. App. 4th 545, 556; see
Dunk v. Ford Motor Co. (1996) 48 Cal. App. 4th 1794, 1809.)3
DISCUSSION
A. The Lodestar Calculation of Attorney Fees
Class Counsel contends that the attorney fee award in this case must be grounded
on the number of hours reasonably worked multiplied by the reasonable hourly rate for
each lawyer involved—the lodestar figure. Class Counsel maintains that the court failed
to make a lodestar calculation, and instead used the percentage of recovery (“POR”)
approach, or a subjective “smell test,” and then did “‘whatever it took’ in valuing the
lodestar to ‘fit’ the eventual fee award into the trial court’s POR valuation.” Wells Fargo
contends that the court correctly applied the lodestar method.
“‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly rate.
“California courts have consistently held that a computation of time spent on a case and
the reasonable value of that time is fundamental to a determination of an appropriate
attorneys’ fee award.”’ [Citations.]” (Concepcion, supra, 223 Cal.App.4th at p. 1320.)
Significantly, the court’s “initial calculation requires the court to determine the
reasonable, not actual, number of hours expended by counsel entitled to an award of fees.
(Ibid; see EnPalm, LLC v. Teitler (2008) 162 Cal. App. 4th 770, 774 & fn. 4.) “Thus, class
counsel ‘are not automatically entitled to all hours they claim in their request for fees.
They must prove the hours they sought were reasonable and necessary.’ (El Escorial
3
Class Counsel contends that the trial court’s exercise of discretion should be
reviewed as a question of law because the facts are undisputed, and that questions of law
should be reviewed de novo when the trial court applies the wrong legal standard. (See
Toshiba America Electronic Components, Inc. v. Superior Court (Toshiba) (2004) 124
Cal. App. 4th 762, 768; Topanga & Victory Partners, LLP v. Toghia (Topanga) (2002)
103 Cal. App. 4th 775, 780-781.) As explained below, the facts here are disputed, the
court’s determination required an exercise of discretion, and the court applied the proper
legal standard. Accordingly, Class Counsel’s reliance on Toshiba and Topanga is
misplaced.
8
Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal. App. 4th 1337, 1366.) ‘The
evidence should allow the court to consider whether the case was overstaffed, how much
time the attorneys spent on particular claims, and whether the hours were reasonably
expended.’ [Citation.]” (Ibid.)
After making the initial lodestar calculation, the court has discretion to increase or
decrease that amount based on several factors specific to the case. (Concepcion, supra,
223 Cal.App.4th at p. 1321.) There is “no hard-and-fast rule limiting the factors that may
justify an exercise of judicial discretion to increase or decrease a lodestar calculation”
(Thayer v. Wells Fargo Bank (2001) 92 Cal. App. 4th 819, 834), but factors courts
commonly consider include “the novelty and difficulty of the case, the attorneys’ skill in
presenting the issues, the amount involved and degree of success achieved, the extent to
which the case precluded the attorneys from accepting other work and the contingent
nature of the work.” (Concepcion, supra, 223 Cal.App.4th at p. 1321.) “The purpose of
such adjustment is to fix a fee at the fair market value for the particular action.”
(Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132(Ketchum).) “Although the court may
consider the amount at issue in the litigation, as well as counsel’s relative success in
achieving the client’s litigation objectives in adjusting the lodestar figure, the attorney fee
award need not bear any specific relationship to the dollar amount of the recovery.”
(Concepcion, supra, 223 Cal.App.4th at p. 1322.)
1. The Court’s Lodestar Calculation
The court based its lodestar calculation on the 458 hours expended by counsel in
Madzounian, multiplied by an hourly rate of $650, to establish an award of $297,700.4
4
Class Counsel contends that the court concluded that a lodestar recovery greater
than a class recovery was per se unreasonable and argues that no rule prohibits a lodestar
recovery from exceeding a class recovery. We do not address this argument because
there is nothing in the record suggesting that the court concluded that a lodestar recovery
greater than the class recovery was per se unreasonable. In fact, the court expressly
acknowledged that there is no statutory or case law addressing such a per se standard.
9
The lodestar valuation must be based on the “reasonable,” not actual, hours expended by
Class Counsel. (Concepcion, supra, 223 Cal.App.4th at p. 1320.) Although the court did
not expressly say so, we assume that it judged 458 hours to be the reasonable number of
hours expended by Class Counsel on this case.5 Class Counsel objects to the court’s
substitution of the Madzounian hours as the proper measure of the reasonable hours
expended instead of using the 1,120 hours claimed. We find no abuse of discretion in the
trial court’s determination that the number of hours expended in Madzounian was a
proper measure of the reasonable hours expended by Class Counsel here.6
a. Comparison of this Action and Madzounian
Wells Fargo construes this case as a sort of “copy cat” action in which the
plaintiffs learned of the Madzounian settlement and in a stroke of luck discovered a small
lag between the effective date of the Madzounian release and the implementation of
Wells Fargo’s policy change eliminating its exposure for issuance of late post-
termination paychecks. According to Wells Fargo, Class Counsel then searched for and
found a plaintiff whose employment terminated after the date of the Madzounian release
and amended the complaint to add this second plaintiff. In contrast, Class Counsel
construes this action as hard fought, fraught with motion practice, and independent of
The court merely stated that it had never seen a fee request that was 150 percent of what
the class would be receiving and that the request struck the court as unusual.
5
While Class Counsel requested an hourly rate of $675, it does not challenge the
court’s use of an hourly rate of $650.
6
Wells Fargo contends that Class Counsel suggested that the trial court award the
lodestar based on the 458 Madzounian hours and that Class Counsel should be equitably
estopped by the doctrine of “invited error” from asserting the court’s reliance on the
Madzounian hours as a ground for reversal on appeal. In its motion, Class Counsel
stated, “[i]f just the 458 hours (the number in Madzounian) are approved for Class
Counsel and a multiplier of just 2 (not Madzounian’s 3.34) is applied, at the average rate
of $663, the lodestar is $607,308, which is above the $584,055.46 being sought.” We do
not think that by this statement Class Counsel was actually proposing that its attorney fee
award be based on the Madzounian hours, especially without a multiplier. Thus, Class
Counsel’s use of the Madzounian hours does not rise to the level of invited error.
10
Madzounian. Class Counsel maintains that it did not learn of the Madzounian class
period until June 2012.7
Although the record does not reflect that the Court’s reliance on the Madzounian
hours was based on the timing of Class Counsel’s knowledge of Madzounian or the
Madzounian settlement and class period, the determination of this factual dispute was for
the trial court. Regardless, Class Counsel can hardly dispute that Madzounian paved the
way for the settlement in this case.
Indeed, the similarities between this case and Madzounian are striking. In
particular, except for a different class period, the settling class in Madzounian is
essentially identical to the only settling class in this case. In Madzounian, the class
consisted of “all former Wells Fargo employees employed in California with a
‘termination date’ from May 21, 2008 through January 18, 2011, who had at least a one-
day gap between their ‘termination date’ and ‘check-issuance date’ according to Wells
Fargo’s records.” The settling class here is defined as “individuals whose employment
with Wells Fargo in California terminated on or after January 19, 2011, but on or before
December 31, 2011 (the ‘Class Period’), who terminated from an active status at Wells
Fargo and who had at least a one-day gap between their ‘termination date’ and ‘check
issuance date’ according to Wells Fargo’s records.”
Class Counsel maintains that Madzounian is so different from this case that any
comparison of the two is inappropriate. We disagree. Class Counsel’s attempt to
distinguish the number of contested motions in this case compared to Madzounian is
insufficient to render comparison of the two an abuse of discretion. In November 2011,
7
The record reveals that class counsel Allan Shenoi stated in a declaration that his
firm did not find out about the Madzounian action until June 2012, nine months after
Cariaga had been added to the action. However, after Wells Fargo presented documents
indicating that Mr. Shenoi and his firm had, indeed, been informed of the Madzounian
action and settlement as early as July 2011, before Cariaga had been added to the action,
Mr. Shenoi filed an amended declaration removing statements that he did not learn about
the Madzounian action until June 2012 and instead stating that he did not learn of the
Madzounian class period until that time.
11
Wells Fargo filed a demurrer to the Second Amended Complaint. The class that
ultimately settled was not alleged in that complaint. In April 2012, plaintiffs filed three
motions to compel. The subject matter and arguments of these three motions overlapped
significantly, and none pertained to the settling class. In September 2013, plaintiffs filed
three more motions to compel. Shortly afterward, the parties stipulated to take those
motions off calendar, to be re-filed after the parties had additional time to meet and
confer. Plaintiffs then re-filed the same three motions to compel in mid-November 2013.
Those motions also overlapped significantly with one another, and a significant portion
of the discovery requests at issue pertained to claims that ultimately were dismissed The
case settled before the court ruled on these motions.
We do not find Class Counsel’s reliance on the number of motions filed as a
distinguishing feature to be persuasive. The demurrer pertained only to claims which
were later voluntarily dismissed, and the plaintiffs’ discovery motions were redundant
and only partially pertained to the claim that ultimately prevailed.
Class Counsel further contends that the result achieved in this case is
incomparable to the result in Madzounian. We disagree. First, even assuming that the
actual recovery of $368 for each settling class member in this case is $100 more than the
average recovery for each participating Madzounian class member, as Class Counsel
contends, that difference does not render comparison of Madzounian and this case an
abuse of discretion. Second, Class Counsel maintains that Wells Fargo ceased its
allegedly unlawful conduct as a result of this action and that, as a result, a higher fee
award is justified. Class Counsel rests its argument solely on the correlation in time
between Wells Fargo’s cessation of conduct and prosecution of this action. But this
temporal correlation is not dispositive. Wells Fargo contends that Madzounian was the
catalyst for Wells Fargo’s policy change, although the evidence–a single sentence in a
declaration by Wells Fargo’s counsel–is slight. Regardless of the admissibility of this
evidence or the weight the trial court gave it, it is clear that Class Counsel did not meet its
burden to show that this action, as opposed to Madzounian, caused Wells Fargo’s policy
change.
12
b. Adoption of the Madzounian Hours
Class Counsel contends that it was improper for the court to slash 59 percent of
Class Counsel’s claimed hours expended and adopt the 458 hours used in Madzounian
without careful review of Class Counsel’s billing documentation of hours expended. The
court did not specify the details of its review or the time entries with which it found fault.
But it was not required to do so. (Maughan, supra, 143 Cal.App.4th at p. 1252; see also
Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 625 [(It was not “incumbent upon the trial
court to specify each and every item in defendant’s memorandum with which the court
found fault”]. 8)
Basing an award on hours expended by other counsel is not without precedent. In
Maughan, this Court found that the trial court had not abused its discretion by reducing a
requested attorney fee and cost award of $112,288, based on over 200 hours of labor, to
$23,000, based on the estimated 50 hours of labor expended by opposing counsel.
(Maughan, supra, 143 Cal.App.4th at p. 1250-51.) While in Maughan the substituted
hours were based on hours expended by opposing counsel, we see no reason why a court
cannot apply a similar analysis using hours expended by different counsel in a related
case with an identical prevailing claim. Class Counsel cites no authority disapproving of
such an approach. 9
8
Class Counsel relies on a nonprecedential case, Gonzalez v. Southern Wine &
Spirits of America Inc. (9th Cir. 2014) 555 Fed.Appx. 704, in which the Ninth Circuit
found the district court’s failure to justify its apparently arbitrary 55% reduction in
counsel’s hours was improper. Even if we were bound by Ninth Circuit decisions
construing attorney fee awards under California law, which we are not (see Chavez,
supra, 47 Cal.4th at p. 985, fn.6), Gonzalez would not affect our decision. Here, the court
did not make an arbitrary percentage reduction in Class Counsel’s hours, but rather found
the 458 hours from Madzounian to be a reasonable number of hours for the lodestar
calculation.
9
Further, while Class Counsel did not propose that the court actually adopt the
Madzounian hours (see footnote 6, supra), it clearly was Class Counsel that introduced
13
Accordingly, in light of the similarities between the two cases, we do not find that
the court abused its discretion in adopting the Madzounian hours.
c. Class Counsel’s Limited Success
The court’s reduction of Class Counsel’s hours from 1120 to 458 is further
justified by plaintiff’s limited success. In Chavez v. City of Los Angeles (2010) 47
Cal. 4th 970 (Chavez) the plaintiff obtained a favorable verdict on only one of his many
claims--the remainder having been dismissed or found lacking in merit—and then sought
a lodestar award of $870,935, based on a reported 1,850 hours of work, and a multiplier
of 2. (Chavez, supra, 47 Cal.4th at p. 981.) The trial court denied fees altogether. The
Supreme Court upheld this decision, holding that “the trial court reasonably could and
presumably did conclude that plaintiff’s attorney fee request . . . was grossly inflated
when considered in light of the single claim on which plaintiff succeeded, the amount of
damages awarded on that claim, and the amount of time an attorney might reasonably
expect to spend in litigating such a claim.” (Id. at p. 991.) The award of attorney fees in
this case falls comfortably within the court’s discretion as approved by Chavez.10
In cases of limited success, courts apply a two-part inquiry. “The first step asks
whether ‘the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on
which he succeeded.’ [Citations.]” (Environmental Protection Information Center v.
Department of Forestry & Fire Protection (2010) 190 Cal. App. 4th 217, 239, mod. on
den. of rehg. (Dec. 15, 2010) (Environmental Protection Information Center).) To
determine whether claims are related or unrelated, the court must evaluate whether the
““different claims for relief . . . are based on different facts and legal theories.’
[Citation.] If so, they qualify as unrelated claims. Conversely, related claims “will
involve a common core of facts or will be based on related legal theories.” [Citations.]”
the Madzounian hours as an alternative standard upon which to base the court’s lodestar
calculation.
10
“If a plaintiff has prevailed on some claims but not others, fees are not awarded for
time spent litigating claims unrelated to the successful claims, and the trial court ‘should
award only that amount of fees that is reasonable in relation to the results obtained.’
[Citation].” (Chavez, supra, 47 Cal.4th at p. 989.)
14
(Ibid.) If successful and unsuccessful claims are related, the court must proceed to the
second step of the inquiry, which asks whether ‘the plaintiff achieve[d] a level of success
that makes the hours reasonably expended a satisfactory basis for making a fee award.’
[Citation.] In this step, the court will ‘evaluate the “significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”‘
[Citation]. . . . ‘The court may appropriately reduce the lodestar calculation “if the relief,
however significant, is limited in comparison to the scope of the litigation as a whole.””
[Citation].” (Ibid.)
Here, the initial Complaint named only Nguyen and alleged causes of action with
factual and legal bases unrelated to the Labor Code section 203 claim that settled. The
Complaint did allege a cause of action for waiting time penalties, but this claim was
based on Wells Fargo’s alleged failure to pay plaintiff Nguyen for accrued vacation time,
not for untimely payment of final wages. While this cause of action was based on the
same Labor Code provision as the settled claim, it was based on different facts and a
different application of Labor Code section 203. Cariaga was added to the Second
Amended Complaint and was included in the causes of action for waiting time penalties
and for failure to furnish timely and accurate wage statements, as well as derivative UCL
and PAGA claims. This was the first time the factual and legal bases for the claim that
settled were introduced into the litigation. However, plaintiffs did not add Subclass VI
until the Fourth Amended Complaint. There is no dispute that Subclass VI is the class
that settled, although the definition was revised upon settlement. Thus, the factual and
legal bases for the settled claim were not fully a part of the litigation until the filing of the
Fourth Amended Complaint.
The court, which raised the issue of limited success, 11 would not have abused its
discretion in finding that the Subclass VI claims that ultimately settled—which included
11
The court stated, in part, “if this had been a Labor Code 203 case from the get go,
we wouldn’t have done hardly any of this. (Sic.) This case would have been done.”
15
Labor Code 203 claims and derivative UCL and PAGA claims—were not related to the
claims that were dismissed. 12 Therefore, we need not proceed to the second step of the
inquiry.
2. The Court’s Refusal to Apply a Multiplier
Class Counsel maintains that the court abused its discretion by not applying a
multiplier to the lodestar amount. We disagree. A court is “not required to include a fee
enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other
factors, although it retains discretion to do so in the appropriate case.” (Ketchum, supra,
24 Cal.4th at p. 1138.) Further, “the party seeking a fee enhancement bears the burden of
proof.” (Ibid.) The court did not err in finding that Class Counsel did not meet this
burden.
The court pointed to several factors justifying its refusal to apply a multiplier.
First, the court found that because Class Counsel’s $650 hourly rate was already on the
“high side” any multiplier was, “to a certain extent,” already built in. This finding was
proper. When determining the enhancement, a court should not consider factors to the
extent they are already encompassed within the lodestar. (Ketchum, supra, 24 Cal.4th at
p. 1138.) The California Supreme Court has noted that the factor of extraordinary skill,
often coupled with the difficulty of a legal question and the quality of representation, is
commonly reflected in an attorney’s hourly rate. (Id. at p. 1138-39.) “Thus, a trial court
should award a multiplier for exceptional representation only when the quality of
representation far exceeds the quality of representation that would have been provided by
an attorney of comparable skill and experience billing at the hourly rate used in the
lodestar calculation. Otherwise, the fee award will result in unfair double counting and
12
Class Counsel contends that Wells Fargo’s position that Subclass VI shares “all of
the same ascertainability problems . . . [as] Subclasses I-IV” is a judicial admission that
all plaintiffs’ claims are related. This argument is unavailing. That subclasses share
similar ascertainability problems--e.g., requiring individual interviews of putative class
members does not render the underlying claims factually or legally related.
16
be unreasonable.” (Id. at p. 1139.) Accordingly, the court did not err in finding that the
multiplier was to some extent built into the $650 hourly rate.
Additionally, the court found that the case was not risky or unique. While there
likely was risk associated with this case at the outset, all of the potentially risky claims
were ultimately abandoned. The only class claim that settled was the same Labor Code
section 203 claim that settled in Madzounian. In light of the extreme similarity between
these claims, and the conflicting evidence of when Class Counsel learned of Madzounian
and the specific dates of its settlement class, the trial court did not abuse its discretion in
finding that this case was not risky or unique.
The court also found that the case was not particularly complex. Class Counsel
again disagrees, contending that the complexity of this case justifies a higher award.
Class Counsel primarily bases this argument on its battle with Wells Fargo over
ascertainability of Subclass VI, the Labor Code section 203 class. Class Counsel argues
that it was required to propound additional discovery and file additional discovery
motions because Wells Fargo maintained, up to the point of settlement, that it could not
ascertain Subclass VI. However, the record reveals that the definitions of Subclass VI
and the final settlement class differed in significant respects. Subclass VI consisted of
“all Wells Fargo former California employees whose last date of employment was after
January 18, 2011 and were not timely paid all final wages.” The settlement class consists
of “individuals whose employment with Wells Fargo in California terminated on or after
January 19, 2011, but on or before December 31, 2011 (the ‘Class Period’), who
terminated from an active status at Wells Fargo and who had at least a one-day gap
between their ‘termination date’ and ‘check issuance date’ according to Wells Fargo’s
records.”
Class Counsel downplays the differences, emphasizing that the settlement class
definition merely defined the term “timely” and added a time limitation. But the
replacement of the nebulous term “timely” with the defined one-day gap between
termination date and check issuance date contributes dramatically to the subclass’s
ascertainability. Further, this settlement class definition was available to Class Counsel
17
as of the December 2011 settlement in Madzounian, 10 months before plaintiffs filed
their Fourth Amended Complaint adding Subclass VI. Accordingly, the court did not err
in finding that any complexity could have been reduced if class counsel had narrowed the
Labor Code section 203 subclass at the outset. 13
3. The Court’s Percentage of Recovery Cross-Check
Class Counsel contends that the court did not apply the lodestar method at all but
instead misconstrued the attorney fees to be part of the common settlement fund and
applied a POR approach. We disagree. The record does not reflect that the trial court
misconstrued the attorney fees to be part of a common fund or treated it as such. Nor
does the record reflect that the court applied the POR approach. Class counsel suggests
that the court first developed a POR award based on a subjective “smell test,” and then
utilized the hours expended in Madzounian to justify the award. The record does not bear
this out, and in fact reveals that the court’s analysis was essentially the other way around.
The court explained that under a POR analysis, an award of approximately 33 1/3 percent
is common, but the court’s award was not based on that percentage. Instead, it utilized
the hours from Madzounian as a “guidepost” and multiplied those hours by an hourly fee
of $650 per hour. This is a lodestar calculation. The court then cross-checked this award
using a contingency fee calculation based on the class fund and found that the award was
equivalent to a 75 percent contingency fee.
Courts routinely cross-check fee awards using similar methods. (Apple Computer,
Inc. v. Superior Court (2005) 126 Cal. App. 4th 1253, 1270.) Indeed, it is a common and
13
Class Counsel’s reliance on Thayer v. Wells Fargo Bank, supra, 92 Cal.App.4th at
p. 839 (Thayer), is misplaced. While the Thayer court acknowledged that
“[c]ompensation should not be strictly limited to efforts that were demonstrably
productive,” and that in at least some cases “a certain amount of inefficiency, waste,
duplication . . . [is] at least in the beginning, tolerable,” the Court also noted that “the
unquestioning award of generous fees may encourage duplicative and superfluous
litigation and other conduct deserving no such favor.” (Ibid.) Further, in Thayer the
Court reversed the trial court’s award of a positive multiplier and instead applied a
negative multiplier because of unjustified duplication of work. (Id. at p. 834, 844.)
18
acceptable practice for courts to cross-check a lodestar award against the common fund
approach (see Laffitte, supra, __ Cal.App.4th __, 2014 WL 6613057, at *10; Ramos v.
Countrywide Home Loans (2000) 82 Cal. App. 4th 615, 628). Courts may even use the
POR approach to adjust the lodestar up or down. (See Lealao v. Beneficial California,
Inc. (2000) 82 Cal. App. 4th 19, 39-40.) In Chavez v. Netflix, Inc. (2008) 162 Cal. App. 4th
43, 64-65, the trial court used percentages of the recovery that a hypothetical enhanced
fee would represent to establish a benchmark for determining the enhanced lodestar
amount. This Court found no error or abuse of discretion in the court’s methodology and
held that an attorney fee award of 27.9 percent of the class benefit awarded was “not out
of line with class action fee awards calculated using the percentage-of-the-benefit
method: ‘Empirical studies show that, regardless whether the percentage method or the
lodestar method is used, fee awards in class actions average around one-third of the
recovery.’ [Citation.].” (Id. at p. 66, fn. 11.)
We find no error or abuse of discretion in the court’s use of the POR approach as a
cross-check to its lodestar calculation.
B. The Statutory Basis for Attorney Fees
Class Counsel contends that the fee award was in error because it was based on the
court’s incorrect belief that there was no statutory basis for attorney fees. We disagree.
First, the record does not reflect that the court had any misunderstanding about any
statutory basis for attorney fees. In fact, contrary to Class Counsel’s contention, the
record is silent on the matter. In reference to its discussion of Class Counsel’s request for
an award of 150 percent of the class settlement, the court only stated that there was no
specific statutory or case law discussing the per se unreasonableness of an attorney fee
award.
C. Class Counsel’s Evidentiary Objections
Class Counsel submitted evidentiary objections to several paragraphs of Wells
Fargo’s counsels’ declarations and to certain attached exhibits. These statements and
exhibits referenced statements made in mediation and other settlement communications.
In particular, the declarations and exhibits indicate that the parties had agreed to a
19
settlement at the initial mediation but that plaintiffs subsequently reneged. The exhibits
also indicate that the parties later came close to a settlement in which Class Counsel
agreed to substantially lower attorney fees than the amount it ultimately sought and was
awarded. The exhibits—correspondence between counsel—were plainly labeled as
privileged settlement communications.
The court remained silent on this evidence and did not expressly rule on any of
Class Counsel’s objections.14 When a trial court fails to rule on evidentiary objections,
“it is presumed that the objections have been overruled, the trial court considered the
evidence in ruling . . . , and the objections are preserved on appeal.” (Reid v. Google, Inc.
(2010) 50 Cal. 4th 512, 531-532 [summary judgment]; see also Gorman v. Tassajara
Development Corp. (2009) 178 Cal. App. 4th 44, 68 (“[P]laintiff’s repeated requests for
ruling on their objections may be regarded as preserving their objections on appeal.”
[motion for attorney fees]).) Assuming the challenged evidence was admitted and
considered by the trial court, and that Class Counsel’s objections have merit,15 we find no
error.
14
Contrary to Class Counsel’s contention, Wells Fargo has not waived its right to
challenge evidentiary objections on appeal by failing to respond to them in the trial court.
(Greenspan v. LADT, LLC (2010) 191 Cal. App. 4th 486, 526 (“There is no authority
requiring a party in a law-and-motion matter to respond to evidentiary objections in the
trial court or waive an appellate challenge to the trial court’s rulings.”).)
15
Class Counsel contends that because mediation communications are absolutely
privileged under the Mediation Act, the court committed reversible error by admitting
them. The cases Class Counsel cites do not support this argument. In Foxgate
Homeowners Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, 18, the
Supreme Court held that because the trial court sanctioned defendant and its counsel
based solely on evidence received in violation of Evidence Code sections 1119 and 1121,
which safeguard the confidentiality of mediation proceedings, admission of that evidence
materially affected the rights of those sanctioned and required vacating the sanction
order. Here, by contrast, Class Counsel has not shown that admission of the challenged
evidence has materially affected its rights. In Rojas v. Superior Court (2004) 33 Cal. 4th
407, 411, the Supreme Court addressed the discoverability of mediation-related materials,
not the consequences of their erroneous admission.
20
In reviewing the erroneous admission of evidence, we are guided by Evidence
Code section 353, which provides: “A verdict or finding shall not be set aside, nor shall
the judgment or decision based thereon be revered, by reason of the erroneous admission
of evidence unless . . . [t]he court which passes upon the effect of the error or errors is of
the opinion that the admitted evidence should have been excluded on the ground stated
and that the error or errors complained of resulted in a miscarriage of justice.” (Evid.
Code, § 353.) “In civil cases, a miscarriage of justice should be declared only when the
reviewing court, after an examination of the entire cause, including the evidence, is of the
opinion that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Huffman v. Interstate Brands
Companies (2004) 121 Cal. App. 4th 679, 692.) “Prejudice from error is never presumed
but must be affirmatively demonstrated by the appellant.” (Brokopp v. Ford Motor Co.
(1977) 71 Cal. App. 3d 841, 853-54.)
Class counsel seeks reversal solely based on the fact that the trial court overruled
the objections, but makes no attempt to connect admission of the challenged evidence to
the court’s ruling, which does not reference the challenged evidence and appears to be
based on completely independent considerations. In short, Class Counsel has not met its
burden to show prejudice, let alone a miscarriage of justice.
Accordingly, admission of the challenged evidence does not warrant reversal.16
D. Attorney Fees on Appeal
Both Class Counsel and Wells Fargo seek their attorney fees on appeal. Class
Counsel contends that its attorney fees on appeal should be part of its fee award. Wells
Fargo contends that the settlement agreement, when read in the light of the reciprocal
fees provision of Civil Code section 1717, entitles it to attorney fees. We disagree and
decline to award attorney fees (as distinct from costs) to either party on appeal.
16
Class Counsel’s integration clause argument is a non-starter. As Wells Fargo
points out, the contested evidence was not offered to vary the terms of the parties’
agreement, and so there is no parol evidence issue.
21
Class Counsel obviously cannot accrue additional attorney fees by pursuing an
unsuccessful appeal. Wells Fargo is not entitled to attorney fees because this action is
not “on a contract” and the settlement agreement does not provide for recovery of
attorney fees and costs “incurred to enforce that contract” within the meaning of
section 1717 of the Civil Code. Citing to Mitchell Land & Improvement Co. v.
Ristorante Ferrantelli, Inc. (2007) 158 Cal. App. 4th 479, 486 (Mitchell), Wells Fargo
argues that courts “liberally construe ‘on a contract’ to extend to any action as long as
an action ‘involves’ a contract and one of the parties would be entitled to recover
attorney fees under the contract if that party prevails in its lawsuit.” In Mitchell, the
court addressed the issue of whether an unlawful detainer action is an action upon a
contract such that Civil Code section 1717, subdivision (b)(2), precludes an attorney
fee award upon its voluntary dismissal. (Id. at p. 482.) The court held that because
the unlawful detainer action at issue was solely based on an alleged breach of a lease
covenant, the action was on a contract, barring recovery of attorney fees. (Id. at p.
488, 490.) Nothing in Mitchell, or any other authority cited by Wells Fargo, suggests
that the reciprocal fees statute should apply to a class counsel attorney fee award
provision in a stipulated class action settlement.
DISPOSITION
The judgment and order are affirmed. Wells Fargo is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
22