Motion OrderCal. Super. - 6th Dist.April 7, 2017.b QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREGORY A. DOUGLAS, ESQ. (SBN 147166) JAMIE McCRARY, ESQ. (SBN 287023) LAW OFFICES OF GREGORY A. DOUGLAS 5500 Bolsa Ave., Ste. 201 Huntington Beach, CA 92649 Telephone: (562) 252-8800 Facsimile: (562) 256-1006 2re2@2d0uglaslaw.com Attorneys for Defendants Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/25/2020 2:38 PM Reviewed By: P. Lai Case #1 7CV308342 Envelope: 4507715 TIFFANY HALL and HALLWAY HEALTHCARE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA BAYHEALTH, INC., Plaintiff, vs. TIFFANY HALL; HALLWAY HEALTHCARE, INC; and DOES 1-20, inclusive, Defendants. TIFFANY HALL Cross-Complainant, vs. BAYEALTH, INC., a California corporation; Mercy Wey, an individual; Bill Hwang, an individual; and ROES 1-20, inclusive Cross-Defendants. i Case No. 17-CV-308342 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPODRT OF MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS Hearing Date: July 3 1, 2020 Hearing Time: 9:00 am. Department: 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. VI. VII. VIII. IX. TABLE OF CONTENTS Page HALL IS THE PREVAILING PARTY IN THIS ACTION AND IS ACCORDINGLY ENTITLED BY LAW TO ATTORNEYS’ FEES AND COSTS .................................. 1 LABOR CODE § 218.5 AUTHORIZES AN AWARD OF ATTORNEYS' FEES AND COSTS TO HALL AS THE PREVAILING PARTY IN THIS ACTION ......................... 1 HALL IS ENTITLED TO LITIGATION COSTS AS A MATTER OF RIGHT UNDER CODE OF CIVIL PROCEDDURE 1032 (b) ............................................................2 SINCE HALL PREVAILED ON HER CROSS-COMPLAINT AGAINST BAYHEALTH, AND WAS AWARDED MONETARY RECOVERY, HALL IS ENTITLED TO AN AWARD OF COSTS AS A PERVAILING PARTY AS A MATTER OF RIGHT .............2 HALL’S ATTORNEYS’ FEES ARE ALLOWABLE COSTS UNDER C.C.P. SECTION 1032 PURSUANT TO CIVIL CODE SECTION 1717 ..............................................3 HALL’S COSTS AND ATTORNEY’S FEES SHOULD NOT BE REDUCED BY THE COURT DUE TO THE AGGRESSIVE AND EXCESSIVE LITIGATION INVOKED BY BAYHEALTH AND ITS ATTORNEY ............................................................... 4 THE TRIAL JUDGE HAS DISCRETION IN DETERMNING THE VALUE OF THE ATTORNEYS’ FEES CLAIMED BY THE PREVAILING PARTY ........................... 5 HALL IS ENTITLED TO RECOVER, AS PART OF THE ATTORNEY FEE AWARD, COSTS THAT ARE NOT RECOVERABLE UNDER C.C.P. SECTION 1033.5 ............ 6 CONCLUSION ......................................................................................... 8 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pagesgs! CASES Bussey v. Affleck, (1990) 225 Cal. App. 3d 1162, 1166 ........................................................................ 7 Clayton Dev. C0. v. Falvey (1998) 206 Cal. App. 3d 438, 447 ........................................................................... 6 Hadley v. Krepel, (1985) 167 Cal App. 3d 677, 682-683 ...................................................................... 5 Gavaldon v. DaimlerChrysler Corp, (2004) 32 Cal. 4th 1246, 1261 ............................................................................... 2 Ladas v. California State Auto. Ass ’n, (I993) 19 Cal. App. 4th 761, 773-774 ...................................................................... 3 Mandel v. Lackner, (1979) 92 Cal. App. 3d 747, 761 ............................................................................ 6 Reveles v. Toyota by the Bay, (1997) 57 Cal. App. 4th 1139, 1151 ........................................................................2 Scott C0. ofCalif. v. Blount, Ina, (1999) 20 Cal. 4th 1103, 1108 ...............................................................................2 Snukal v. Flightways Mfg, Inc., (2000) 23 Cal. 4th 754, 775 fn. 6 ............................................................................2 Wakefield v. Bohlin (2006) 145 Cal. App. 4th 963, 972-973 ..................................................................... 1 STATUTES Code of Civil Procedure § 218.5(a) ....................................................................... 1,2,7,8 Code of Civil Procedure § 1032 .......................................................................... 1,2,3,4,8 Code 0f Civil Procedure § 1032 (a) (4) ...................................................................... 1,2 Code of Civil Procedure § 1032 (b) ............................................................................. 2 CiV. Proc. Code § 1033.5 .....................................................................................6,7,8 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CiV. Proc. Code § 1033.5 (a) ................................................................................... 2,3 CiV. Proc. Code § 1033.5 (a) (10) ................................................................................ 7 CiV. Proc. Code § 1033.5 (b) .....................................................................................2 CiV. Proc. Code § 1033.5 (c) (4) ............................................................................. 6,7,8 Civil Code § 1717 .............................................................................................. 3,4,8 Civil Code§ 1717 (b) (1) .......................................................................................... 4 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. HALL IS THE PREVAILING PARTY IN THIS ACTION AND IS ACCORDINGLY ENTITLED BY LAW TO ATTORNEYS’ FEES AND COSTS As further outlined below, prevailing parties to an action are entitled t0 receive attorneys’ fees and costs under a number of different statutes. The definition of “prevailing party” With regard to awarding attorneys’ litigation fees and costs can be derived by looking at Code 0f Civil Procedure § 1032 (a) (4). (Wakefield v. Bohlin (2006) 145 Cal. App. 4th 963, 972-973.) This code section provides four categories whereby a prevailing party is determined, as follows: a) the party with a net monetary recovery. b) a defendant in Whose favor a dismissal is entered. c) a defendant Where neither plaintiff nor defendant obtains any relief; and d) a defendant as against those plaintiffs who d0 not recover any relief against that defendant. (Cal. CiV. Proc. C0de§ 1032(a)(4).) The court also has discretion t0 determine the prevailing party in situations other than those provided by the statute. (Id.) In the present case, this court does not need to 100k beyond the statute, as it is clear that Hall was the party with a net monetary recovery. As the prevailing party in the action, Hall is therefore entitled to her attorneys' fees and costs pursuant t0 statutory law. II. LABOR CODE 8 218.5 AUTHORIZES AN AWARD OF ATTORNEYS' FEES AND COSTS TO HALL AS THE PREVAILING PARTY IN THIS ACTION Hall brought forth an action against Bayhealth for nonpayment of wages, among other things. (See Hall’s Second Amended Cross-Complaint, attached as Exhibit B to the Declaration of Gregory A. Douglas). Labor Code § 218.5 (a) specifically applies to such actions and states as follows: In any action brought for the nonpayment 0f wages, fringe benefits, or health and welfare 0r pension fimd contributions, the court shall award reasonable attorney's fees and costs t0 the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action." (emphasis added) (Id) 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hall made a request for attorney's fees and costs in the Second Amended Cross-Complaint. (Hall’s Second Amended Cross-Complaint, attached as Exhibit B to the Declaration 0f Gregory A. Douglas, page 10, lines 27-28). Because Hall is the prevailing party in this action, under Labor Code § 218.5 (a), Hall is entitled to her reasonable attorneys’ fees and costs of approximately $35 1 ,762.77, as established by the Memorandum of Costs filed with the Court and the Declaration 0f Gregory A. Douglas, Jamie McCrary and David Peer. This Court should therefore grant Hall’s motion and order Bayhealth t0 pay said fees and costs. III. HALL IS ENTITLED TO LITIGATION COSTS AS A MATTER OF RIGHT UNDER CODE OF CIVIL PROCEDDURE 1032 (b) C.C.P. § 1032(b) expressly states that, "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Id.) Bayhealth is unable t0 cite t0 any statute preventing Hall, as the prevailing party in this action, t0 recover her litigation costs. Therefore, this Court should grant Hall’s recovery of litigation costs of approximately $6,787. 1 8, as established in the Memorandum 0f Costs filed concurrently herewith. IV. SINCE HALL PREVAILED ON HER CROSS-COMPLAINT AGAINST BAYHEALTH, AND WAS AWARDED MONETARY RECOVERY, HALL IS ENTITLED TO AN AWARD OF COSTS AS A PERVAILING PARTY AS A MATTER OF RIGHT Code of Civil Procedure § 1032 (a) (4) states “‘[p]revailing party’ includes the party With a net monetary recovery . . .” and “a prevailing party is entitled as a matter 0f right to recover costs in any action 0r proceeding”); Reveles v. Toyota by the Bay, 57 Cal. App. 4th 1139, 115 1 (1997) (disapproved 0n other grounds in Gavaldon v. DaimlerChrj/sler Corp, 32 Cal. 4th 1246, 1261 (2004), and Snukal v. Flightways Mfg, Inc., 23 Cal. 4th 754, 775 fn. 6 (2000)); Scott C0. ofCalif v. Blount, Ina, 20 Cal. 4th 1103, 1108 (1999). In an action to recover costs under Code 0f Civil Procedure section 1032, certain items are recoverable as a “matter 0f right” and others are expressly excluded. Compare CiV. Proc. Code § 1033.5(a) (listing costs that are “allowable”), with CiV. Proc. Code § 1033.5(b) (listing costs that are 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “not allowable”), Ladas v. California State Auto. Ass ’n, 19 Cal. App. 4th 761, 773-774 (1993) (describing costs listed as “allowable” in Civ. Proc. Code § 1033.5(a) as costs recoverable as a “matter of right”). Therefore, this Court should grant Hall’s recovery 0f “allowable” litigation costs 0f approximately $6,787.18, under Code of Civil Procedure §§ 1032 and 1033.5 (a) as established in the Memorandum 0f Costs filed concurrently herewith. V. HALL’S ATTORNEYS’ FEES ARE ALLOWABLE COSTS UNDER C.C.P. SECTION 1032 PURSUANT TO CIVIL CODE SECTION 1717 Bayhealth’s Complaint against Hall included a cause of action for breach of contract, based 0n Hall’s alleged failure to perform under the terms 0f the Employment Agreement entered into between Hall and Bayhealth. Hall’s Second Amended Cross-Complaint against Bayhealth included a cause 0f action for breach of contract, based on Bayhealth’s alleged failure to perform under the terms of the Employment Agreement entered into between Hall and Bayhealth. C.C.P. § 1033.5 (a) states: The following items are allowable as costs under C.C.P. § 1032: (10) Attorney's fees, when authorized by any of the following: (A) Contract, (B) Statute, (C) Law. Civil Code § 1717 states as follows: (a) In any action on a contract, Where the contract specifically provides that attorney’s fees and costs, which are incurred t0 enforce that contract, shall be awarded either to one 0f the parties 0r to the prevailing party, then the party who is determined to be the party prevailing 0n the contract, Whether he 0r she is the party specified in the contract 0r not, shall be entitled to reasonable attorney’s fees in addition to other costs. Where a contract provides for attorney’s fees, as set forth above, that provision shall be construed as applying t0 the entire contract, unless each party was represented by counsel in the negotiation and execution 0f the contract, and the fact of that representation is specified in the contract. Reasonable attorney’s fees shall be fixed by the court and shall be an element 0f the costs 0f suit. Attorney’s fees provided for by this section shall not be subj ect t0 waiver by the parties t0 any contract Which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney’s fees is void. (b) (1) The court, upon notice and motion by a party, shall determine Who is the party prevailing on the contract for purposes of this section, whether 0r not the suit proceeds to final judgment. Except as provided in paragraph (2), the partyprevailing 0n the contract shall be theparty who recovered a greater reliefin the action 0n the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. [emphasis added] (2) Where an action has been voluntarily dismissed or dismissed pursuant t0 a settlement 0f the case, there shall be n0 prevailing party for purposes of this 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 section. The Employment Agreement that formed the basis for Bayhealth’s Complaint and Hall’s Cross-Complaint provides at paragraph 29 as follows: 29. Attorney's Fees. If any legal action, including an action for declaratory relief, is brought t0 enforce 0r interpret the provisions of this Agreement, the prevailing party shall be entitled t0 recover reasonable attorneys' fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition t0 any other relief t0 Which the prevailing party may be entitled. This provision applies to the entire Agreement. Pursuant to Civil Code § 1717 (b) (1) Hall is the party prevailing 0n the contract because it was Hall who recovered a greater relief in the action 0n the contract. As such, Hall’s attorneys’ fees are allowable as costs under C.C.P. § 1032 and Civil Code § 1717. VI. HALL’S COSTS AND ATTORNEY’S FEES SHOULD NOT BE REDUCED BY THE COURT DUE TO THE AGGRESSIVE AND EXCESSIVE LITIGATION EMPLOYED BY BAYHEALTH AND ITS ATTORNEYS Throughout the course of the 3 years of litigation in this matter, it must be noted that Bayhealth and its attorney aggressively litigated this matter. Bayhealth filed many motions, including a Motion for Summary Judgement Which Bayhealth lost. Notwithstanding the fact that the court’s tentative was to deny Bayhealth’s MSJ, Bayhealth’s attorney refused t0 submit on the tentative and requested oral argument. As a result, Ms. Hall’s attorney, Gregory A. Douglas flew from Los Angeles to San Jose for the oral argument, Which lasted approximately five (5) minutes and the court’s tentative became the order. Excessive Discovery was served on Hall and Hall’s counsel, experts were retained by Bayhealth requiring Ms. Hall t0 retain an expert of her own and any attempt by Hall and Hall’s counsel t0 reduce unnecessary costs and fee’s was either ignored or 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 denied by Bayhealth and its attorney. For example, in the weeks leading up t0 trial, Hall’s attorney attempted t0 meet and confer with Bayhealth’s counsel as to Whether Bayhealth was going t0 exercise its right to a Jury trial. Hall’s counsel expressed t0 Bayhealth’s counsel that Hall would prefer a bench trial and if Bayhealth was agreeable, both parties could reduce costs and fees by stipulating to a bench trial and avoid having t0 prepare Jury instructions and incur additional costs and fees associated With preparing for a Jury trial. Despite Hall’s attorney’s attempt to stipulate to a bench prior t0 preparing Jury instructions, etc., Bayhealth’s attorney refused to confirm and stipulate t0 a bench trial until after Hall’s attorney had nearly completed all Jury instructions and other preparations for the anticipated Jury trial. Bayhealth’s counsel did not confirm and stipulate t0 a bench trial until April 16, 2019, only 6 days prior to the start of Trial. While Ms. Hall and her counsel acknowledge that Bayhealth was well Within their right to litigate this matter however they felt necessary, the aggressive litigation style utilized by Bayhealth caused Ms. Hall’s costs and fees to accumulate to the current amounts set forth in this Motion. Due t0 Bayhealth’s aggressive litigation and refilsal t0 work With Ms. Hall or her counsel in reducing unnecessary costs and fees, Ms. Hall should recover the full amount 0f costs and fees incurred throughout the necessary litigation and defense 0f the claims in this matter. VII. THE TRIAL JUDGE HAS DISCRETION IN DETERMNING THE VALUE OF THE ATTORNEYS’ FEES CLAIMED BY THE PREVAILING PARTY Items on Plaintiff s counsel’s verified cost bill are prima facie evidence 0f the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden ofproof shifts t0 the party claiming them as costs. However, in its review, the court is not limited t0 a determination 0f sufficiency of the motion t0 rebut the presumption. A trial Judge is entitled to take all 0f the circumstances of the case into account. Hadley v. Krepel (1985) 167 Cal App. 3d 677, 682-683 [citations omitted]. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The circumstances the court takes into consideration include “the nature 0f the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, [his/her] learning, [his/her] age, and [his/her] experience in the particular type ofwork demanded; the intricacies and importance of the litigation, the labor necessity for skilled legal training and ability in trying the cause, and the time consumed.” Clayton Dev. C0. v. Falvey (1998) 206 Cal. App. 3d 438, 447. The party seeking fees must offer evidence that is “clear proof 0f the crucial factors: i.e., the time reasonably spent by each attorney and [his/her] ‘reasonable hourly compensation.’” Mandel v. Lackner (1979) 92 Cal. App. 3d 747, 761. When this Court takes the circumstances set forth above into consideration, it becomes clear that Plaintiff has established, at a minimum, the costs and fees claimed are justified, and the Court should not reduce Plaintiff s claimed costs and fees. As set forth above, the aggressive and excessive litigation style employed by Bayhealth and its attorneys played a large role in the costs and fees incurred by Plaintiff and her attorneys. Furthermore, Bayhealth was well aware 0f the provision for Attorney’s Fees Within the Employment Contract and was aware that should Ms. Hall prevail 0n her claims, Bayhealth would be liable for such fees and costs. Moreover, the declarations of Hall’s attorneys Gregory A. Douglas, Jamie McCrary and David Peer set forth the crucial factors 0f the time reasonably spent by each attorney and [his/her] reasonable hourly compensation. Finally, C.C.P. §1033.5 (c) (4) provides that the court has discretion to allow costs that are not specifically allowable under C.C.P. §1033.5. VIII. HALL IS ENTITLED TO RECOVER, AS PART OF THE ATTORNEY FEE AWARD, COSTS THAT ARE NOT RECOVERABLE UNDER C.C.P. SECTION 1033.5 “Where a contract provides for payment of costs and attorneys’ fees, the court may allow 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disbursements 0f counsel as attorney fees under section 1033.5, subdivision (a) (10), if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel’s hourly rate.” Bussey v. Aflleck (1990) 225 Cal. App. 3d 1162, 1166. Costs and Attornev’s Fees Section 29 0f the Employment Agreement between Bayhealth and Tiffany Hall states: “Attorney’s Fees. If any legal action, including an action for declaratory relief, is brought t0 enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled t0 recover reasonable attorney’s fees from the other party. These fees, Which may be set by the court in the same action 0r in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled. This provision applies to the entire Agreement. Furthermore, Labor Code § 218.5(a) states, “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare 0r pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party t0 the action requests attorney’s fees and costs upon the initiation 0f the action.” Section 3 of the Agreement states that Bayhealth is obligated t0 Hall an advance draw 0n the profits. The Court found that Bayhealth stopped making the quarterly draw payment the third quarter 0f 2015. The Court found that, “Hall as established that Bayhealth breached its obligation to pay a quarterly advance draw 0n profits.” As such, in addition t0 an award 0f damages, Ms. Hall Will be entitled t0 recovery of her costs and attorney’s fees. Finally, C.C.P. §1033.5 (c) (4) provides that the court has discretion to allow costs that are not specifically allowable under C.C.P. §1033.5. 1. Photocopies $4.50 2. Courier $507.09 3. Attorney SVC $935.60 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Court Call $618.00 5. Mediation $3,750.00 6. Meals $1259.01 7. Lodging $5,271.97 (Trial) 8. Ground Trans $1,272.57 (Trial, MSJ, MSC, Mediation) 9. Air fare $4,556.44 (Trial, MSJ, MSC, Mediation) 10. Parking $160.00 1 1. Postage $49.41 Total = $18,384.59 Hall seeks recovery of the costs set forth above that are not listed as recoverable under C.C.P. §1033.5 but asks the Court to allow them as reasonably necessary expenses under C.C.P. §1033.5 (c) (4). IX. CONCLUSION Hall, as the prevailing party, is entitled t0 an award of attorneys’ fees and costs under C.C.P. § 1032, C.C.P. §1033.5, C.C.P. §1033.5 (c) (4), Labor Code § 218.5 (a) and Civil Code § 1717. Based upon the foregoing, this Court should grant Hall’s motion for attorneys’ fees and costs in the total sum 0f $351, 762.77. Consisting 0f $6,787.18 in allowable costs, $18,384.59 in discretionary costs, and $326,591.00 in necessary attorney’s fees. Dated: June 25, 2020 LAW OFFICES OF GREGORY A. DOUGLAS -$XW 24 flaflag-J GregorflA. flouglas Attorney for DEFENDANT and CROSS- COMPLAINANT TIFFANY HALL 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORDT OF MOTION FOR ATTORNEYS’ FEES AND COSTS