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Ojeda v. Azulay

Feb 10, 2021
No. B302440 (Cal. Ct. App. Feb. 10, 2021)




ALBINO OJEDA, Plaintiff and Respondent, v. MICHELLE AZULAY et al., Defendants and Appellants.

Shaghzo & Shaghzo, Armen Shaghzo for Defendants and Appellants. No appearance for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC683391) APPEAL from an order of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed as modified. Shaghzo & Shaghzo, Armen Shaghzo for Defendants and Appellants. No appearance for Plaintiff and Respondent.


Albino Ojeda prevailed against Michelle and Eric Azulay and 5000 Laurel Canyon Blvd., LLC (collectively Azulay) after a bench trial. The trial court entered judgment in Ojeda's favor, and the trial court then granted his motion for attorney fees. Azulay now contends that the motion should have been denied because it was untimely, and it requested unreasonable fees. We reduce the fee award but otherwise affirm the order as modified.


Azulay employed Ojeda to be the resident manager of an apartment complex. Ojeda sued Azulay for violations of the Labor Code. The complaint alleged eight causes of action, but the trial court granted Azulay's motion for nonsuit as to five of them. The matter proceeded to a two-day bench trial on the remaining three causes of action concerning failure to pay wages. On May 31, 2019, the trial court found for Ojeda and awarded him $30,929.94 in damages plus interest. The trial court also found that Ojeda was entitled to costs and statutory attorney fees, to be determined by a noticed motion. The trial court entered judgment, and the clerk mailed notice of entry of judgment that same day.

Ojeda served his notice of motion and motion for attorney fees and costs on August 1, 2019. He asked for $126,161.25 in attorney fees based on a lodestar of $84,107.50 with a 1.5 multiplier, plus $4,910.99 in costs. The declaration of Ojeda's counsel accompanying the motion detailed counsel's legal background, experience, and the work performed on the case. That work included drafting the pleadings, attending court conferences, engaging in discovery, taking a deposition, preparing for and attending trial, and preparing closing memorandums per the trial court's request. Counsel spent 197.9 hours on the case at an hourly rate of $425, as detailed by his time records. Further, he took the case on a contingency basis.

Azulay opposed the motion on the grounds that the motion was untimely and that the fees were unreasonable for a straightforward wage and hour case tried over just two days. Azulay also argued that Ojeda's counsel block billed for tasks that included administrative matters, that fees requested for two small claims matters defendants brought against Ojeda should be excluded, and that no multiplier should be applied. Azulay thus asked that the motion be denied or reduced by at least $27,755.

In his reply, Ojeda conceded that his motion was filed and served two days late but explained he had incorrectly interpreted the five-day rule in Code of Civil Procedure section 1013. He defended the reasonableness of the fees but admitted he had inappropriately included 1.3 hours spent reviewing and forwarding to his client the small claims actions.

An unreported hearing was held on Ojeda's motion at which Ojeda's counsel appeared but Azulay's did not. The trial court granted the motion for attorney fees in the lodestar amount of $84,107.50 and declined to apply a multiplier. As Azulay had already paid Ojeda's costs, the trial court issued no further award of costs.

On December 10, 2019, the trial court signed a second "judgment" with respect to the attorney fees award. (Boldface and capitalization omitted.)


I. Timeliness of the attorney fees motion

Azulay contends that the trial court should have denied the motion for attorney fees because it was untimely. Because Azulay has not submitted a record adequate to evaluate this issue, we disagree.

Ojeda conceded below that he filed his motion for attorney fees two days late. That is, a motion for attorney fees must be served and filed within the time for filing a notice of appeal, which generally is the earlier of 60 days after service of the notice of entry of judgment or 180 days after entry of judgment. (Cal. Rules of Court, rules 3.1702(b)(1), 8.104(a)(1)(B), 8.108.) However, the parties may stipulate to extend the time for filing the motion or, for good cause, the trial judge may extend it. (Cal. Rules of Court, rule 3.1702(b)(2), (d)). An honest mistake of law may constitute good cause for relief depending on the reasonableness of the misconception. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 327-328.) We review a trial court's finding of good cause for an abuse of discretion, and a litigant challenging that finding has an "uphill battle." (Id. at p. 326.)

Notwithstanding that the trial court here made no express finding of good cause, we cannot find any abuse of discretion on this record. Rather, Azulay opposed the motion on the ground it was untimely, and Ojeda's counsel explained in his reply that he had misapplied Code of Civil Procedure section 1013 and asked the trial court to consider the motion. Therefore, the issue was fully briefed in the trial court. By hearing and granting the motion, the trial court impliedly accepted Ojeda's explanation and found good cause. Azulay did not appear to argue the motion and has otherwise failed to present evidence of what occurred at the hearing.

Given the standard of review—abuse of discretion—that failure is fatal to this issue. We presume a judgment or order is correct and indulge all intendments and presumptions in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Azulay, as appellant, bears the burden of affirmatively showing prejudicial error, and, to satisfy this burden, had to provide an adequate record to assess error. (See, e.g., Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Where no reporter's transcript or settled statement has been provided and no error is apparent on the face of the existing appellate record, we presume that unreported matter would demonstrate the absence of error. (Cal. Rules of Court, rules 8.130, 8.134, 8.137; see, e.g., Estate of Fain (1999) 75 Cal.App.4th 973, 992; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.)

Good cause appears in the record based on counsel's honest mistake of law. That being so and indulging all inferences in support of the trial court's order, we cannot rule out that the trial court found, in its discretion, good cause to consider the untimely motion. II. Reasonableness of attorney fees

Azulay next attacks the reasonableness of the fees on four grounds: (1) the block billing includes impermissible administrative tasks, (2) fees incurred regarding small claims actions should have been excluded, (3) Ojeda prevailed on only three of eight causes of action, and (4) fees were three times the damages awarded. Applying the applicable abuse of discretion standard of review (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095), we address each in turn.

A. Block billing

Turning to the first of Azulay's contentions, that Ojeda improperly block billed, block billing occurs when an attorney lists multiple tasks done in one day or over one period of time and does not specify the time spent on individual tasks. (See generally Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) Block billing is not per se objectionable. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830.) Rather, the amount of attorney fees to be awarded is left to the trial court's sound discretion (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522), and trial courts retain discretion to penalize block billing when it prevents distinguishing between compensable and noncompensable tasks (Heritage, at p. 1010). Block billing can be particularly problematic when it makes it impossible to ascertain which tasks concerned, for example, a Brown Act violation for which statutory attorney fees are recoverable and other causes of action. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.)

That is not the problem Azulay identifies. Azulay instead complains that the block billing here includes time spent on noncompensable "administrative" tasks. Azulay points to tasks Ojeda's counsel performed such as scanning, printing, and downloading documents; preparing proofs of service; preparing mailings; formatting documents; calendaring dates; and traveling to mailboxes or postal centers to mail documents.

As an initial matter, necessary overhead support services that secretaries and paralegals provide to attorneys may be included in an attorney fees award. (City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7.) Therefore, so-called administrative tasks are recoverable in the trial court's discretion. Although charging for purely clerical tasks at an attorney's hourly rate is questionable, the trial judge nonetheless was the best judge of the value of the services rendered, and to reverse that judgment we must be convinced it is clearly wrong. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Especially in the absence of the reporter's transcript, which may have shed light on the time spent on so-called administrative tasks, we are reluctant to second guess the trial court. Ojeda's counsel was, in his words, a "true sole practitioner" in that he had no support staff and had to do everything himself. His detailed time records largely show that when arguably clerical tasks were combined with clearly legal ones, the total time charged would not have been facially unreasonable for the legal task alone. On February 14, 2018, for example, counsel drafted 15 sets of discovery, printed copies of each, drafted proofs of service, printed mailing labels, and stuffed manila envelopes. To do all this he spent 5.4 hours. Spending that time on drafting discovery alone would be facially reasonable. Further, it is possible that the trial court denied Ojeda's request for a 1.5 multiplier, which the trial court might have otherwise awarded, as a way of ensuring that Ojeda was not compensated for performing clerical tasks.

We are therefore unpersuaded that the trial court abused its discretion by not reducing the fees.

B. Small claims actions

Azulay's second claim is Ojeda should not recover for time spent on related small claims matters. Ojeda agreed to a reduction by 1.3 hours, or $552.50, but the trial court did not make the reduction. We will do so on appeal.

C. Prevailing on limited number of causes of action

Azulay's third argument why Ojeda's fees are unreasonable centers on Ojeda having prevailed on only three of his eight causes of action. At trial, the trial court granted nonsuit against Ojeda on his causes of action for failure to provide meal periods, failure to provide rest periods, failure to furnish accurate wage statements, failure to pay wages following severance of employment, and violation of Business and Professions Code section 17200. Ojeda went to trial on the remaining three causes of action brought under the Labor Code for failure to pay minimum wage, failure to pay wages and overtime, and statutory liquidated damages for failure to pay minimum wage.

Although Ojeda prevailed on just three of his eight causes of action, it is unclear what Azulay is trying to make of this fact. Azulay uses it to suggest, it appears, that Ojeda was not the prevailing party and that the fees are unreasonable. But whether a party is the prevailing party and whether fees awarded are reasonable are distinct inquiries. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 153.)

If Azulay is attempting to assert that Ojeda was not the prevailing party, then that issue is not properly before us because Azulay did not raise it in the trial court and therefore may not raise it for the first time on appeal. (See generally JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) It would also, in any event, be incorrect, as Ojeda prevailed on causes of action entitling him to statutory attorney fees under Labor Code section 1194, subdivision (a). As such, he is the prevailing party. (See, e.g., Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at pp. 159-160.)

If, on the other hand, Azulay is asserting that the amount of fees awarded should be reduced to account for the causes of action on which Ojeda did not prevail, then this argument also was not raised in the trial court. Rather, Azulay mentioned Ojeda's limited success as measured by the number of causes of action on which he prevailed only in the context of arguing why the 1.5 multiplier was improper.

Even so, apportionment is not required when claims for relief involve a common core of facts and are "so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units." (Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th at p. 687; Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at pp. 158-159.) Whether and how to apportion attorney fees is in the trial court's sound discretion, and an abuse may be found when the claim subject to an attorney fees provision is separate and distinct from the claims that are not subject to such a provision. (Bell, at pp. 687-688.) No abuse of discretion is apparent here, where all of Ojeda's causes of action, including the dismissed ones, arose out of Ojeda's employment and Azulay's failure to comply with the Labor Code. Azulay also makes no attempt to explain how the dismissed claims were separate and distinct from the ones Ojeda prevailed on at trial such that apportionment would be necessary. As Ojeda's counsel explained, the dismissed causes of action were based on, for example, that he was not given a daily meal period, which was directly intertwined with how many hours he worked.

Finally, to the extent Azulay complains about the overall reasonableness of the attorney fees award, a trial court has considerable discretion in determining the reasonableness of fees. In making this determination, the trial court may adjust the lodestar (the number of hours reasonably expended multiplied by the reasonable hourly rate) based on factors including (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 attorney, and (4) the contingent nature of the fee award. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) It may be, as Azulay points out, that this case was relatively straightforward and routine, involving no complex discovery issues or disputes, other pretrial matters, and did not involve a lengthy trial. But it does not follow that the fees are unreasonable. Rather, there is nothing patently outrageous about the number of hours spent (197.9) and counsel's hourly rate ($425) on a wage and hour claim case that went to trial, even a short one.

D. Disproportionality

Azulay's final issue regarding the attorney fees is that the trial court awarded Ojeda $30,929.94 in damages and $84,107.50 in attorney fees, which was almost three times the damages. Azulay cites no authority for the proposition that a fee award that exceeds the client's recovery is per se unreasonable or that California imposes a proportionality rule. (See generally Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 419-421 [rejecting three-to-one cap on fees to damages].) Otherwise, as we have already said, nothing in the record persuades us that the award was unreasonable.


The order granting attorney fees is modified to reduce the amount rewarded by $552.50. The total amount of attorney fees awarded is $83,555. The order is affirmed as modified. No costs are awarded on appeal.


DHANIDINA, J. We concur:

LAVIN, Acting P. J.


Summaries of

Ojeda v. Azulay

Feb 10, 2021
No. B302440 (Cal. Ct. App. Feb. 10, 2021)
Case details for

Ojeda v. Azulay

Case Details

Full title:ALBINO OJEDA, Plaintiff and Respondent, v. MICHELLE AZULAY et al.…


Date published: Feb 10, 2021


No. B302440 (Cal. Ct. App. Feb. 10, 2021)