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Court of Appeal:
Reconstructions of Hours Spent Still Allowable in Fee Requests
Opinion Rejects Call by Judge Fruin for New Rule in Light of Modern Computerized Record-Keeping Systems
By a MetNews Staff Writer
Div. Three of the Court of Appeal for this district has reaffirmed the rule that attorneys for prevailing parties, in proceeding under a fee-shifting statute, may reconstruct hours they devoted to the case, rejecting the view of a Los Angeles Superior Court judge that appellate opinions so providing should be rejected as anachronistic in light of contemporary computerized time-record systems.
The judge, Richard L. Fruin, awarded $27,500 in attorney fees to Yuri Orellana Guevara, plaintiff in an action against his former employer, Interstate Meat Co., for racial discrimination and harassment, under the Fair Employment and Housing Act, which was settled for $25,000. Fees in the amount of $153,015 had been sought as the alleged value of services performed, under a contingency fee agreement, by attorneys at the Century City firm of Pairavi Law, P.C.
Presiding Justice Lee Edmon authored the unpublished opinion, filed Tuesday, reversing Fruin’s order. Without discussing the points raised by Fruin as to why older holdings should be spurned, she relied on existing case law in declaring that the judge erred in rejecting the fee request to the extent it was based on reconstructed records.
While acknowledging the broad discretion a judge has in setting attorney fees—including the authority to rely on personal knowledge as to prevailing rates in the vicinage and reasonableness of hours that are claimed—she wrote:
“Because the trial court did not articulate the basis for its attorney fee award, we cannot determine whether it was based on valid or invalid criteria.”
Fruin’s View
In explaining his disallowance of fees where hours had not been contemporaneously recorded, Fruin noted that “Plaintiffs fee motion shows that her attorneys have a computerized time entry system—they record some time entries on a computerized system—but they often choose not to input them time entries into their computerized system.” He pointed to declarations of two of Guevara’s attorney saying “that sometimes when the legal tasks are performed it was not convenient to document the time required, with no further explanation.
Fruin continued:
“The court will not cooperate in shifting legal fees that could have been but were not contemporaneously recorded.
“To determine a reasonable legal fee, the court is required to prepare a lodestar analysis (reasonable hourly rates per timekeeper x reasonable number of hours for necessary task per timekeeper). To do so, the Court needs to ascertain [that] the hours...claimed are accurately reported and were necessarily incurred for a successful case result.
“Today’s standard of practice in employment cases requires plaintiffs counsel to prepare time records contemporaneously with the performance of legal tasks; and then to testify in support of a fee motion that their time entries accurately report the time required to perform the identified legal tasks. Without such information, a court cannot prepare a lodestar analysis. Older cases permitting lawyers to estimate their time are to be distinguished for three reasons: (1) computer technology permits today’s lawyers to prepare accurate time records: (2) most fee motions are brought under statutes that permit the court to issue only a ‘reasonable’ legal fee award…, necessarily implying that the fee request will be supported by evidence; and (3) an attorney must provide an accurate description and accounting for tasks so that a lodestar can be calculated.”
Judge Queried
An attorney for the plaintiff asked Fruin at the hearing on the fee motion:
“Are you aware of any case law, your honor, that says that reconstructing time for the purposes of attorneys’ fees is not allowed?”
The judge responded:
“I’m not aware of a case like that. I want you to take me up on appeal in this case so we get that appellate decision.”
Edwin Pairavi, head of the law firm that represented Guevara, said in a declaration in the trial court that $39,905 of the $153,015 that was sought had been supported by reconstructed records. However, in the appellant’s opening brief, prepared by him and Joshua M. Mohrsaz of his firm, it is asserted that all of the shaving of $125,515 from the fee request was attributable to Fruin balking at the use of after-the-fact reckoning of hours, maintaining that a “draconian and capricious” reduction was “solely due to the fact that Appellant’s counsel reconstructed some of his time records, despite the law permitting him to do so.”
The appellant’s reply brief charges that Fruin “expressly went rogue” when he “expressly refused to follow longstanding precedent permitting reconstructed time records.”
Edmon’s Opinion
Edmon quoted Fruin’s call for a change in the posture of case law but did not provide a direct response to it. She said:
“[M]any cases decided in the last decade hold that attorney fees may be recoverable even in the absence of time records or billing statements. The trial court thus erred in refusing to award fees for attorney tasks that were not contemporaneously recorded.”
The broader question remained as to the degree of deference to be lent to Fruin’s determination of the reasonableness, overall, of the fee request.
He found, setting forth reasons, that the Pairavi firm exaggerated the number of hours spent on the litigation. Fruin also said the hourly rates were set too high, commenting that “experienced attorneys should not expect to receive premium rates when performing routine tasks that in other firms are performed by competent attorneys at much lower hourly rates” and that he could only make “a reasonable fee award.”
Pairavi stated his hourly rate to be $725; the judge set it at $450. He reckoned a reasonable rate for Mohrsaz to be $400 rather than the $600 claimed.
Respondent’s Contention
Citing authority, defendant/respondent Interstate Meat argued in its respondent’s brief, prepared by Efthalia S. Rofos, Emily C. Hoskins, and Angeli C. Aragon of O’Hagan Meyer:
“The 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.”
It was not in doubt that Fruin is an “experienced” jurist. He was appointed to the Superior Court in 1995.
Hourly Rate
Acknowledging the correctness of Interstate Meat’s legal proposition as it relates to the setting of a reasonable hourly rate, Edmon quoted Div. Seven of this district’s Court of Appeal in its 2019 decision in Morris v. Hyundai Motor America as saying that a trial judge may rely on personal “knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees.” That 2019 opinion also says, Edmon noted, that a judge may assess “the difficulty or complexity of the litigation to which that skill was applied’.”
However, she said, “nothing in the trial court’s order in the present case allows us to discern how the court chose the rates that it did,” adding:
“We thus cannot determine whether those rates were reasonable.”
Edmon went on to say:
“M]ost fundamentally, while the trial court identified several perceived problems with plaintiffs records and fee request, the court gave no explanation of the award it made. Instead, after identifying several problems with plaintiffs fee request, the court merely stated without explanation that ‘reasonable legal fees’ in this case were S27.500. Nothing in the fee request or the court’s order reveals how the court determined this sum—i.e., how many attorney hours the court determined were reasonably expended on this litigation and why. While it was well within the trial court’s discretion to determine that the number of hours claimed and the hourly rates sought by plaintiffs counsel were excessive, it was incumbent on the court to explain, at least in general terms, how it arrived at its attorney fee award. It failed to do so.”
No Lodestar Analysis
Explaining why he did not engage in a lodestar analysis, Fruin said:
“The Court is unable to prepare a lodestar analysis because it believes counsels’ reported time was not accurately recorded and her attorney’s claimed hourly rates are not justified for the work counsel...performed.”
Edmon did not accept that reasoning, proclaiming:
“[T]he trial court did not undertake a lodestar analysis. This was error.”
Interstate Meat Co, argued on appeal that “inaccuracies and blatant misrepresentations call into question the honesty and validity of Plaintiff’s counsel’s timekeeping records,” adding:
“[T]the inconsistencies, unexplained discrepancies, mistakes, inflated records, and overreaching found in Appellant’s counsel’s time entries and supporting declarations in support of Appellant’s Motion, mandated that the trial court carefully scrutinize, challenge, and eventually reject Appellant’s representations as unreliable and untruthful.”
Edmon said:
“Unquestionably, if the court agreed with defendant’s contentions, it had discretion to award plaintiffs attorneys less than they requested. But we cannot assess whether the trial court properly exercised its discretion because we cannot tell how the trial court arrived at the attorney fees it awarded.”
The case is Guevara v. Interstate Meat Co., B332546.
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