Camara v. Irvine Sensors Corporation

Statutory Right to Recover Costs

The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032.) “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).). (Code Civ. Proc., § 1032(b).) Allowable costs, however, must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5(c)(2)-(3).) Whether a cost item was reasonably necessary to the litigation is a question of fact for the trial court to determine. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

Here, it is undisputed Plaintiffs are prevailing parties and may recover costs against Defendant Irvine Sensors Corporation (“ISC”) and John Carson.

The court record shows Defendants John Stuart and Joanne Carson, were dismissed prior to trial (ROA # 204, 220, 226), and Plaintiffs’ Request for Dismissal of Defendant Stuart notes that “Plaintiffs agree to bear their own fees and costs relating to the claims asserted against Mr. Stuart.” (ROA # 226.)

A plaintiff cannot recover from one defendant the costs to litigate claims against another defendant. (See Charton v. Harkey (2016) 247 Cal.App.4th 730, 733-734, 739-741 [holding a dismissed defendant is entitled to recover its costs, even if it was united in interest with other unsuccessful defendants].) Therefore, Plaintiffs must show their claimed costs are reasonably necessary to the litigation of Plaintiffs’ claims against Defendants ISC and John Carson.

Standard on Motion to Strike or Tax Costs

If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety, and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-774.)

The party challenging costs bears the initial burden to present evidence and prove the costs are not recoverable; mere statements in points and authorities and conclusory statements by counsel are insufficient to rebut the prima facie showing. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Ass’n. (1993) 19 Cal.App.4th 761, 774–776.) Whether a cost item was reasonably necessary to the litigation is a question of fact for the trial court to determine. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

Challenged Costs (Item 4. Deposition Costs)

Code of Civil Procedure section 1033.5(a)(3) provides for the recovery of costs associated with “necessary depositions.”

Plaintiffs claim $12,086.44 in deposition costs.

Moving Defendant properly objects to the costs associated with the deposition of dismissed defendant John Stuart. Plaintiffs do not meet their shifted burden to show this deposition was necessary to the litigation of the claims against Defendants ISC and John Carson. The court, therefore, taxes $2,293.35 of the claimed deposition costs.

Challenged Costs (Item 5. Service of Process)

Code of Civil Procedure section 1033.5(a)(4)(A)-(C) provides for the recovery of costs for service of process by a public official, process server, and publication.

Plaintiffs claim $765.00 in service of process costs.

Moving Defendant properly objects to the costs for service of process on dismissed defendants John Stuart and Joanne Carson. Plaintiffs do not meet their shifted burden to show service of process on these defendants was reasonably necessary to the litigation of Plaintiffs’ claims against Defendants ISC and John Carson. The court taxes $325.00 of the claimed service of process costs.

Challenged Costs (Item 11. Court Reporter Fees)

Code of Civil Procedure Section 1033.5(a)(11) provides for the recovery of “[c]ourt reporter fees as established by statute.” (See also Cal. Rules Ct., Rule 2.956 [providing that “[i]f the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. It is that party’s responsibility to pay the reporter’s fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law”].)

The “catchall” of subdivision (c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion” if the prevailing party shows the cost was reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5(c).)

Although trial court reporter costs are expressly not recoverable unless ordered by the court (Code Civ. Proc., § 1033.5(b)(5)), trial transcripts are a recoverable cost in multi-day trials such as this one. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42- 43 [error to disallow $5,882.00 claim for trial transcripts for an eightday jury trial].) “As a practical matter, [plaintiff] would have been unable to defend the jury award without the trial transcripts. At the very least, [plaintiff] would have incurred additional expenses and great difficulty in defending the award without the trial transcripts, in the event [defendant] challenged the jury award in posttrial proceedings or on appeal.” (Id. at p. 43; see Alan S. v.

Superior Court (2009) 172 Cal.App.4th 238, 262 [it is within the trial court’s discretion to award costs for the transcripts of a hearing, as the transcripts tell “the story of this litigation in all its warts and glory,” and they give a reviewing court “a sense of what was happening ‘on the ground’ at the trial level”].)

Plaintiffs claim $33,619.87 in trial court reporter fees. Plaintiffs later amended their request to claim $31,224.87 in trial court reporter fees, and now $30,695.07. Plaintiffs’ supplemental evidence shows these to be proper charges. (See Cordes Decl., Ex. F.)

Thus, the court will tax $2,924.80 and award $30,695.07 in court reporter fees.

Challenged Costs (Item 15. Other)

Expert witness fees are not allowable unless ordered by the court or expressly authorized by law. (Code Civ. Proc., § 1033.5(a)(8), (b)(1).)

Plaintiffs claim $25,244.35 in expert witness fees.

Defendant ISC properly objects to this amount arguing Plaintiffs are not entitled to recover expert witness fees.

Plaintiffs argue they are entitled to recover expert witness fees pursuant to Labor Code section 1194. Section 1194(a) provides in relevant part: “. . . [A]ny employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” This section does not expressly authorize expert witness fees, and Plaintiffs cite no authority interpreting the statute to do so. For these reasons, the court will tax all expert witness costs.

The court hereby taxes $30,767.50 in claimed costs.

Plaintiff shall recover $45,403.87 in prejudgment costs from Defendant Irvine Sensors Corporation and Defendant John Carson.

Defendant Irvine Sensors Corporation to give notice.

Motion 2. Joinder

Defendant John Carson joins in Defendant Irvine Sensors Corporation’s motion to strike and/or tax Plaintiffs’ memorandum of costs, as well as the reply in support of that motion. For the following reasons, the motion is DENIED.

On 04/29/2026, Defendant John Carson filed a “Notice of Joinder to Irvine Sensors Corporation’s Motion to Strike and/or Tax Plaintiffs’ Memorandum of Costs and Reply in Support of Motion.” (ROA # 770.)

The joinder is untimely, as it was not served and filed at least 16 court days prior to the scheduled hearing. (See Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47; Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637.)

Furthermore, the joinder seeks no affirmative relief. Joinder is appropriate only where the joinder seeks affirmative relief on behalf of the joining party and joins in the arguments made by the motion being joined. (See Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661 [finding joinder adequately sought affirmative relief where the notice of joinder notes the joining party “seeks an order striking Plaintiff’s Complaint as to Defendant [joining party] and awarding [joining party] his costs and attorney’s fees in bringing a special motion to strike”].)

Defendant Irvine Sensors Corporation to give notice.

Motion 3. Motion for Attorney’s Fees

Plaintiffs Betty Camara, David Hughes, Sharon Anderson, Daniel Berger, Daniel DeBlasio, Jr., Timothy Dicus, Anthony Mastrangelo, David Peter, Raul Ramirez, Grant Yamaguchi, and James Yamaguchi move for an award of reasonable attorney’s fees. For the following reasons, the motion is GRANTED in part and DENIED in part. Plaintiffs shall recover $1,000,588.00 in reasonable attorney’s fees. Plaintiffs shall recover no additional costs.

Standard on Motions for Attorney’s Fees

On a motion for attorney’s fees, the moving party has the burden of: (1) establishing entitlement to an award, and (2) documenting the appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

It is moving party’s burden of proof to show the fees they incurred and that the fees were reasonably incurred. (See Christian Research Institute v. Alno (2008) 165 Cal.App.4th 1315, 1320; Maughan v. Google Tech., Inc. (2007) 143 Cal.App.4th 1242, 1254.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous." (Horsford v Board of Trustees of California State University (2005)132 Cal.App.4th 359, 396; Raining Data Corp. v.

Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel are also “sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel’s detailed billing statements”].) “[N]ecessary support services for attorneys, e.g. secretarial and paralegal services, are includable within an award of attorney fees.” (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951.)

To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) “When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary.” (Gorman v.

Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Ibid.)

The Court will reduce the hours it determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [party seeking attorney fees has the “burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount’”]; Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-29 [affirming award for 71 hours of attorney time in case where attorneys sought fees for over 600 hours].) Fee award amounts are matters within the trial court's discretion: the “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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [noting that “ ‘unless special circumstances would render such an award unjust,’” “parties who qualify for a fee should recover for all hours reasonably spent”]; see also Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 447–448.) The Serrano court cited with approval a federal case encouraging a complete denial of fees where the fee request was unreasonably excessive. (Id. at p. 635.) “’If ... the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place.

To discourage such greed, a severer reaction is needful....' ” (Serrano v. Unruh, supra, 32 Cal.3d at p. 635, citation omitted.)

In addition, “a trial court may consider an attorney's pervasive incivility in determining the reasonableness of the requested fees.” (Snoeck v. Exaktime Innovations, Inc. (2023) 96 Cal.App.5th 908, 911.)

Courts use the lodestar adjustment method to determine the amount of attorney’s fees to award in Song-Beverly actions. (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1112.) “[T]he lodestar is the basic fee for comparable legal services in the community.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (“Ketchum”).) It is “based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.’ [Citation.] [The California Supreme Court] expressly approved the use of prevailing hourly rates as a basis for the lodestar... In referring to ‘reasonable’ compensation, [the Court] indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation. (Id. at pp. 1131-1132.)

When determining a reasonable attorneys’ fees award using the lodestar method, the court begins by deciding the reasonable hours the prevailing party’s attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep’t of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009; 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 437.)

The court then has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier; “such an adjustment is commonly referred to as a ‘fee enhancement’ or ‘multiplier.’ [Citation.]” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 (“Mikhaeilpoor”).)

“‘[T]he lodestar method vests the trial court with the discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation’ [Citation] and to determine the hourly rates that should be used in the lodestar calculus. [Citation.]” (Mikhaeilpoor, supra, 48 Cal.App.5th at pp. 246-247.) “The experienced trial judge is the best judge of the value of professional services rendered in his court . . . . [Citation.]” (Ketchum, supra, 24 Cal.4th at p. 1132.)

Entitlement to Fees

Here, it is undisputed Plaintiffs are prevailing parties over Defendants ISC and Carson and that Plaintiffs are entitled to recover attorney’s fees pursuant to Labor Code sections 218.5, 1194, and 2802.

Lodestar Calculation

Plaintiffs submit time records showing 1416.1 hours of attorney work totaling $1,047,006.00 in attorney’s fees. (Cordes Decl. ¶ 50, Ex. A.)

1. Reasonable Rates

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009; 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 437.)

Plaintiffs’ counsel billed at the following rates:

Timekeeper (bar 2022 2023 2024 2025 admission) Attorney Caro (2017) $575 $600 $625 $650 Attorney Cordes (1994) $775 $800 $825 $850

Defendant does not challenge the rates. Therefore, the court finds these rates to be reasonable.

2. Reasonable Hours

Defendant identifies several billing entries as excessive, duplicative, and/or unreasonable. (See Wirth Decl., Ex. F.)

- $2,327.00 in fees related to the unsuccessful claims against Defendants John Stuart and Joanne Carson. Having considered the matter, the court cuts $1,471.00, including the $388.00 (0.5 hrs) billed on 02/18/2022 to review Joanne Carson and John Stuart’s discovery responses, $620.00 (0.8 hrs) billed 11/15/2021 relating to Joanne Carson’s motion to quash service of summons, $465.00 (0.6 hrs) of the $854.00 billed on 05/10/2022, 06/30/2022, and 08/01/2022 for communications relating in part to Defendant John Stuart.

- $9,799.00 (15.9 hours) for the unsuccessful writ of attachment. Having considered the matter, the court cuts these fees as not reasonably necessary to the litigation. Plaintiffs’ application for writ of attachment was denied without prejudice. Plaintiffs chose not to file a renewed application and does not explain their decision, which tends to show the attachment was not reasonably necessary; and seasoned attorneys charging $575-$774 should be expected to exercise better judgment from the get-go.

- $7,868.00 (12.7 hours) in fees for the unsuccessful 128.7 sanctions motion challenging Defendants’ demurrer. Having considered the matter, the court cuts these fees as not reasonably necessary to the litigation. A sanctions motion challenging a first-time demurrer at the beginning of the case appears gratuitous, especially given the court (Judge Hesseltine) sustained the demurrer as to 9 of the 11 causes of action. (See Wirth Decl., Ex. G.)

- $43,090 in fees billed by Attorney Cordes for administrative tasks and excessive time spent to review documents, many of them administrative documents. Having considered the matter, the court cuts the following 34.9 attorney hours ($26,424.00 in fees) as unreasonable, excessive, and/or duplicative:

o $77.50 (0.1 hrs) of the $155.00 billed 06/08/2021 to review case assignment (excessive) o $77.50 (0.1 hrs) of the $155.00 billed 06/09/2021 to review notice of CMC (excessive) o $155.00 (0.2 hrs) of the $310.00 billed 01/11/2022 in part to review Notice of jury trial and MSC notice (excessive) o $77.50 (0.1 hrs) of the $155.00 billed 01/12/2022 to review change of address (excessive) o $77.50 (0.1 hrs) of the $155.00 billed 01/14/2022 to review peremptory challenge and case reassignment (excessive) o $77.50 (0.1 hrs) of the $155.00 billed 02/09/2022 to review John Carson’s amended notice of change of address (excessive) o $310.00 (0.4 hrs) of the $465.00 billed 02/17/2022 for among other things, “Monday Staff Meetings.” (administrative) o $620.00 (0.8 hrs) of the $930 billed on 05/05/2022- 05/06/2022 for “Multiple emails re group Zoom” (excessive) o $465.00 (0.6 hrs) of the $931.00 billed 05/23/2022- 05/26/2022 for multiple emails re “No Zoom today.” (administrative and/or excessive) o $775.00 (1.0 hr) of the $1007.50 billed between 06/07/2022-06/09/2022 relating to “Emails Re Irvine Sensors Zoom Thursday 4 PM” (administrative/excessive) o $775.00 (1.0 hr) of the $890.00 billed 01/14/2022 re emails regarding settlement offer (excessive) o $155.00 (0.2 hrs) billed 07/28/2022 for “Multiple emails re Todays call” (excessive) o $77.50 (0.1 hrs) of the $155.00 billed 12/19/202 to review Notice of Case Reassignment (duplicative and excessive) o $155.00 (0.2 hrs) of the $388.00 billed 12/20/2022 to review Notice of Trial Continuance, Minute Order re Ex Parte, and email clients re same (excessive) o $155.00 (0.2 hrs) billed 12/21/2022 to review m&c correspondence (duplicative) o $240.00 (0.4 hrs) of the $320.00 billed 02/07/2023 to review discovery responses (duplicative) o $80.00 (0.1 hrs) of the $160.00 billed 04/25/2023 to review Notice of Ruling (excessive) o $60.00 (0.1 hrs) of the $120.00 billed 06/07/2023 to review email re joinder (excessive); o $600.00 (1 hr) of the $1540.00 billed 06/13/2023 to review demurrer and prepare notes for opp. (excessive and duplicative) o $80.00 (0.1 hrs) of the $160.00 billed 07/06/2023 to review email from opposing counsel (excessive) o $60.00 (0.1 hrs) of the $120.00 billed 08/22/2023 to review email from opp counsel (excessive) o $160.00 (0.2 hrs) of the $650.00 billed 11/06/2023 to review tentative ruling (duplicative) o $80.00 (0.1 hrs) of the $160.00 billed 11/06/2023 to review Notice of Trial Continuance (excessive) o $60.00 (0.1 hrs) of the $120.00 billed 11/16/2023 to review Notice of Ruling (excessive) o $80.00 (0.1 hrs) of the $160.00 billed 11/16/2023 to review Notice of Ruling (excessive) o $82.50 (0.1 hrs) of the $165.00 billed 02/23/2024 to review discov requests (duplicative and/or excessive) o $82.50 (0.1 hrs) of $165.00 billed 02/27/2024 to review email from opp counsel (excessive) o $248.00 (0.3 hrs) billed 03/15/2024 to review m&c correspondence (duplicative) o $125.00 (0.2 hrs) billed 03/19/2024 to review demand for expert witness exchange (duplicative work) o $165.00 (0.2 hrs) billed 03/22/2024 to review depo notice (duplicative work) o $248.00 (0.3 hrs) billed 04/10/2024 to review depo notice (duplicative and excessive) o $495.00 (0.6) hrs billed 04/24/2024 to review letter (excessive and duplicative) o $330.00 (0.4 hrs) of the $2,310.00 billed 05/03/2024 to communicate with expert (excessive) o $188.00 (0.3 hrs) of the $625.00 billed 05/07/2024 to review NTA (duplicative) o $165.00 (0.2 hrs) of the $330 billed 05/15/2024 re emails re rescheduled deposition (excessive) o $62.50 (0.1 hrs) of the $125 billed 07/18/2024 to review subpoena (excessive) o $82.50 (0.1 hrs) of the $165 billed 08/16/2024 to review Notice of Continuance o $82.50 (0.1 hrs) of the $248 billed 08/26/2024 to review TR o $82.50 (0.1 hrs) of the $165 billed 09/02/2024 to review Notice of Change of Address o $130 (0.2 hrs) of the $188 billed 10/21/2024 to review Notice of Ruling o $82.50 (0.1 hrs) of the $165 billed 10/21/2024 to review Notice of Ruling o $82.50 (0.1 hrs) of the $165 billed 12/23/2024 to review Notice of Case Reassignment o $85 (0.1 hrs) of the $170 billed 02/10/2025 to review Notice of Trial Continuance o $5950 (7 hrs) and $3575 (5.5 hrs) of the 48.3 hours billed on the fees motion (excessive and duplicative) o $2600 (4 hrs) and $5950 (7 hrs) of the $15,000 anticipated work on the reply (excessive and duplicative)

In sum, the court cuts $46,418.00 in requested fees, representing 65.4 attorney hours, and awards $1,000,588.00 in attorney’s fees. This amount and these hours appear reasonable for an employment matter involving multiple plaintiffs, pending for five years, and being litigated through trial.

3. Multiplier

In determining whether to apply a multiplier, the court considers a variety of factors that the court did not consider when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the skill displayed in presenting them, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (See Ketchum, supra, 24 Cal.4th at pp. 1132-1134; Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v.

Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The court is not required to impose a multiplier; the decision is discretionary. (Galbiso, 167 Cal.App.4th at 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.) The contingent nature of fee award is relevant where it is “uncertain that the attorneys would be entitled to an award of fees even if they prevailed.” (Weeks v Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1175.) On the other hand, contingent nature is not generally sufficient where contingency is limited to whether or not the party will prevail. (Id., at pp. 1174- 1175.)

A multiplier is more typically seen in cases where counsel undertakes a difficult case in the public interest, not a personal injury case brought by a single plaintiff to recover her own economic damages. (Id., at p. 1174.)

Here, the Ketchum factors do not weigh in favor of a multiplier in this case. Plaintiffs do not show the employment and wage issues presented to be novel or difficult, the contingent nature is limited to whether the plaintiffs will prevail; and counsel did not undertake a complex case in the public interest.

Costs

Plaintiffs request an award of $2,359.86 for lodging and travel, which Plaintiffs contend “were not and could not be sought in Plaintiffs’ separate-filed Bill of Costs application.” Plaintiff argues that attorney travel and lodging expenses are not enumerated among the items allowable as costs under Code of Civil Procedure section 1033.5(a) and therefore are not governed by California Rules of Court, Rule 3.1700.

Prejudgment costs must be claimed and contested in accordance with the rules adopted by the Judicial Council or are deemed waived. (Code Civ. Proc., § 1034(a); Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929; see also CJER, Cal. Judges Benchbook Civ. Proc. Trial § 16.11.)

The deadline of Rule 3.1700 does not apply to items “not allowable as costs” pursuant to section 1033.5(b), such as expert witness fees not ordered by the court. (See, e.g., Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015.) The court in Anthony v. City of Los Angeles held that: “rule 3.1700 applies only to the items ‘allowable as costs’ that are listed in subdivision (a) of section 1033.5—that is, those cost items to which a party is entitled ‘as a matter of right.’ (§ 1032, subd. (b).)” (Anthony v.

City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015.) In that case, the prevailing plaintiff sought to recover expert witness fees, which the court noted are “specifically identified as ‘not allowable as costs, except when expressly authorized by law.’” (Id. at p. 1015.)The Anthony court concluded that because the court clerk could not “immediately enter the costs on the judgment” without a court determination, a party’s request for FEHA expert witness fees are not subject to the deadline of Rule 3.1700. (Id. at p. 1016.)

The court noted that in addition to the discretionary nature of the cost award, “ the Legislature apparently ‘associates the recovery of expert witness fees by the prevailing party in a FEHA case with the recovery of attorney's fees.’” (Id. at p. 1016.)

Prevailing employees such as Plaintiffs are entitled “as a matter of right” to fees and costs pursuant to Code of Civil Procedure Section 1033.5(a)(16) and the relevant Labor Code sections. (See Code Civ. Proc., § 1033.5(a)(16) [“Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal”]; Lab. Code, § 218.5 [providing in relevant part: “the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action”); Lab.

Code, § 1194 [providing in relevant part that “any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit]; Lab. Code, § 2802 [providing in relevant part that: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties,” which “shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section”].)

Plaintiffs cite no authority providing that travel and lodging costs— which would otherwise fall within the catchall of Code of Civil Procedure section 1033.5(c)(4)—are not subject to the Rule 3.1700 deadlines.

Plaintiffs did not timely request travel and lodging costs in their Memorandum of Costs. Therefore, the court denies as untimely Plaintiff’s request for travel and lodging costs.

Plaintiffs to give notice.

8 Cemex TENTATIVE RULING: Construction Materials Motion to Seal Pacific, LLC vs. Gunner Concrete, Inc. Plaintiff Cemex Construction Materials Pacific, LLC moves to seal the unredacted version of Exhibit A to Cemex’s Complaint filed January 17, 2024, a credit application and agreement that contains the social security numbers of individual Defendants Douglas Scott Milne II and Geneva Milne. For the following reasons, the motion is GRANTED.

To seal a record, the moving party must file a motion for such relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (CRC 2.551(b)(1).) The motion must be served on all parties, and unless the court orders otherwise, a complete copy of the document must be served on all other parties that already possess copies, along with the redacted version. (CRC 2.551(b)(2).)

To grant a motion to seal, the court must expressly find that:

1. an overriding interest exists that overcomes the right of public access to the record; 2. the overriding interest supports sealing the records; 3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4. the proposed sealing is narrowly tailored; and 5. no less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d); McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal. App. 4th 974, 988.)