Pumphrey v. Min & Hong Corporation CA2/5 ( 2023 )

Filed 12/18/23 Pumphrey v. Min & Hong Corporation CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
JOSEPH PUMPHREY, B326037
Plaintiff and Appellant, (Los Angeles County
Super. Ct. Nos.
v. BC641704 and
BC641704 “R”)
MIN & HONG CORPORATION et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Gregory Keosian, Judge. Affirmed.
The Harrison Law Group, Jeff A. Harrison and Sara
Pezeshkpour for Plaintiff and Appellant.
Law Offices of Stephen E. Abraham and Stephen E.
Abraham for Defendants and Respondents.
——————————
Plaintiff and appellant Joseph Pumphrey appeals post-
judgment orders partially granting attorney fees and costs.
Pumphrey contends that because Civil Code section 52 mandates
an award of fees and costs to a prevailing plaintiff, the trial court
had no discretion to deny fees and costs under Code of Civil
Procedure section 1033, subdivision (a). Defendants and
respondents Min & Hong Corporation and Maureen Hocking
counter that the trial court properly harmonized the two code
sections, and the fee and cost award was a proper exercise of the
court’s discretion.
Because the appellate record is inadequate to conclude that
the appealed orders were an abuse of the court’s discretion, we
affirm the fee and cost awards.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2016, plaintiff, who uses a wheelchair,
filed a complaint alleging that defendants’ diner did not comply
with state and federal disability access laws. The complaint
included three causes of action: the first alleged a violation of
Title III of the American with Disabilities Act (“ADA” codified in
42 U.S.C. § 12101 et seq.); the second alleged a violation of the
Unruh Civil Rights Act (“Unruh Act;” California Civil Code § 51
et seq.);·and the third alleged a violation of California Health and
Safety Code section 19953 et seq. In relevant part, the complaint
sought “an injunction pursuant to California civil rights statutes”
ordering disability access and prohibiting the diner from
operating until access was provided, “general, compensatory, and
statutory damages pursuant to the Unruh Act,” including treble
2
damages and “attorneys’ fees, litigation expenses and costs of
suit, pursuant to [California Civil Code section 52].”
At some point before August 2018, defendants remedied the
disability access problems identified in plaintiff’s complaint. At
plaintiff’s request in early August 2018, the court dismissed the
first and third causes of action without prejudice, leaving only the
Unruh Act claim. For reasons that are not apparent from the
record, the scheduled November 6, 2018, trial was continued after
the parties had completed discovery and filed trial briefs and
witness and exhibit lists.
On October 11, 2019, plaintiff filed a motion for attorney
fees and litigation expenses under Code of Civil Procedure section
1021.5. Plaintiff argued he was entitled to fees on his previously
dismissed injunctive relief claims based on a catalyst theory (i.e.,
that defendants remedied the access-impeding conditions as a
result of plaintiff’s litigation, thereby entitling plaintiff to fees as
the prevailing party). At the time, the trial on plaintiff’s Unruh
Act claim was scheduled to take place on April 14, 2020.
Plaintiff’s motion sought $55,518.50 in attorney fees and
$4,337.56 in expert witness fees. The court denied the
October 11, 2019 motion without prejudice, leaving open to
plaintiff the opportunity to file another motion following
resolution of plaintiff’s remaining claim for damages. In its
ruling, the court explained that plaintiff had not provided any
evidence to show his discrimination claims were not groundless
or unmeritorious.
We find nothing in the appellate record to reflect what
occurred before or during the eventual trial, other than an
October 7, 2022 document entitled “decision and judgment”
3
finding in favor of plaintiff and awarding damages of $4000.1
The relevant text stated: “After considering the numerous
exhibits admitted into evidence and the oral testimony presented
in court, the court finds in favor of plaintiff and against
defendants. The court finds that Plaintiff has met his burden of
proof in establishing violation of the Unruh Act and the ADA, as
a result of conditions which were present relating to seating and
access to the restroom. [¶] Plaintiff is awarded $4,000 for the
violation he encountered. Attorneys fees will be determined per
motion and costs per a cost bill. Judgment is entered in favor of
Plaintiff and against Defendants. Plaintiff to prepare and submit
a judgment for the court’s signature.” Final judgment was
entered on October 21, 2022.
Plaintiff subsequently filed a memorandum of costs seeking
$12,884.30 in costs and a motion for attorney fees and litigation
expenses seeking $106,151.00 in attorneys’ fees and $10,770.59 in
expert witness fees. Plaintiff again argued that his claims for
injunctive relief were meritorious and catalyzed defendants to
remediate the disability access issues at the diner.2 Plaintiff also
1 The first paragraph of the document noted: “Pursuant to
Code of Civil Procedure, section 632, the following is the
Judgment in the above captioned case, as the matter was heard
in less than eight hours and a statement of decision was not
requested prior to the submission of the matter.”
2 A footnote in plaintiff’s motion for attorney fees reveals
that plaintiff did not draw a distinction between the different
causes of action or the grounds for an award of attorney fees:
“Each of the three causes of action asserted in the complaint
entitles Plaintiff to recover his reasonable attorneys’ fees and
costs from Defendants. [(42 U.S.C. §12205 (prevailing parties
4
claimed attorney fees as the prevailing party on his Unruh Act
claim, but offered no additional legal analysis on that point.
Defendants’ opposition to the attorney fee motion argued
that Code of Civil Procedure section 1033 expressly limited a
party’s recovery when a case was over-filed or over-litigated,
because it resulted in a “judgment that could have been rendered
in a limited civil case.” Defendants also filed a motion to tax
costs that similarly argued Code of Civil Procedure section 1033
precluded plaintiff from recovering certain costs because, having
originally filed this action as an unlimited civil case, plaintiff only
recovered a judgment that could have been rendered in a limited
civil case.
In a ruling filed December 14, 2022, the court granted
plaintiff’s motion for attorney fees, awarding $42,628.50 in
attorney fees, plus $1,992.04 in expert fees. A ruling filed
December 15, 2022, granted in part defendants’ motion to tax
costs, reducing the cost bill by $9,856.11, leaving a total costs bill
of $3,028.19.
In both rulings, the court agreed with defendants that “a
substantial reduction of fees” and costs was warranted under
Code of Civil Procedure section 1033, subdivision (a). In
implementing the reduction, the court chose a “cutoff date” of
October 11, 2019, at which point Plaintiff’s maximum damages
were readily estimable at $12,000 and injunctive relief was no
under the ADA may recover reasonable attorneys’ fees, litigation
expenses, and costs); Health & Safety Code §19953 (“the
prevailing party in the action shall be entitled to recover
reasonable attorney’s fees”); Civil Code §52 [subd.] (a)
(defendants are liable for damages “and any attorney’s fees that
may be determined by the court in addition thereto”).]”
5
longer available. The court also made additional reductions
based on findings that certain claimed fees should not be
recovered because they were excessive, duplicative, or otherwise
not justified: plaintiff does not challenge those reductions in this
appeal. Plaintiff appealed both the December 14, 2022 and
December 15, 2022 orders.
On September 5, 2023, we invited the parties to submit
letter briefs on the adequacy of the appellate record, in light of
the lack of any mention of Civil Code section 52 in the appealed
rulings, and the absence of a reporter’s transcript or suitable
substitute. Plaintiff’s letter brief argued the court’s rulings are
adequate to demonstrate error, and that no reporter’s transcript
was necessary. Defendant’s letter agreed with the court’s
observation that “on the record provided, there is no evidence
that the trial court relied on [Code of Civil Procedure] section
1033 to deny fees under Civil Code section 52.”
DISCUSSION
Plaintiff contends that because Civil Code section 52 and
Code of Civil Procedure section 1033, subdivision (a) are
incompatible, it was error for the court to rely upon Code of Civil
Procedure section 1033, subdivision (a), to deny fees and
expenses on plaintiff’s successful Unruh Act claim. Plaintiff’s
argument is based on an erroneous assumption that this is what
the court did: plaintiff ignores that the court never mentions the
Unruh Act or Civil Code section 52 in its rulings at all. Instead,
the attorney fee award explained in the court’s ruling relies only
on Code of Civil Procedure section 1021.5, and the cost award is
made under Code of Civil Procedure section 1032. Because
6
plaintiff does not contend that either of those statutes are
incompatible with Code of Civil Procedure section 1033, the legal
issue plaintiff presents on appeal has no connection with the
rulings actually issued by the court. While plaintiff’s motion
below made brief references to Civil Code section 52 and the
Unruh Act, without the benefit of a statement of decision or a
reporter’s transcript to show what was argued or conceded at the
hearings for attorney fees and costs, we decline to draw any
inference regarding whether the court intended to award, deny,
or reduce fees under Civil Code section 52. Plaintiff fails to
provide a record upon which we can find legal error or abuse of
discretion in the court’s fee and cost awards.
Standard of Review
We presume that the trial court’s fee and cost awards are
correct, and the appealing party bears the burden of providing an
adequate record to demonstrate error. (Taylor v. County of Los
Angeles (2020) 50 Cal.App.5th 205, 209; Rhule v. WaveFront
Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228.)
A fee award will not be disturbed on appeal unless it is
clearly wrong. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084,
1095.) “A trial court’s determination of the amount of attorney
fees to award is reviewed for an abuse of discretion. [Citation.]
‘ “ ‘[A]n experienced trial judge is in a much better position than
an appellate court to assess the value of the legal services
rendered in his or her court, and the amount of a fee awarded by
such a judge will therefore not be set aside on appeal absent a
showing that it is manifestly excessive in the circumstances.’
[Citation.] ‘The only proper basis of reversal of the amount of an
7
attorney fees award is if the amount awarded is so large or small
that it shocks the conscience and suggests that passion and
prejudice influenced the determination.’ ” [Citation.]’ [Citation.]”
(Gutierrez v. Chopard USA Ltd. (2022) 82 Cal.App.5th 383, 392–
393.) “The choice of a fee calculation method is generally one
within the discretion of the trial court, the goal under either the
percentage or lodestar approach being the award of a reasonable
fee to compensate counsel for their efforts.” (Laffitte v. Robert
Half Internat. Inc. (2016) 1 Cal.5th 480, 504 [trial court’s manner
of calculating fee award not an abuse of discretion].)
Relevant Law
We begin with a review of the attorney fee and cost statutes
at the heart of the current appeal: Civil Code section 52, and
Code of Civil Procedure sections 1021.5, 1032, and 1033.
A plaintiff who prevails under the Unruh Civil Rights Act
is entitled to a minimum statutory penalty of $4,000 for each
offense and “any attorney’s fees that may be determined by the
court.” (Civ. Code, § 52, subd. (a).) The trial court “possesses
discretion to determine the amount of the fees, but not their
entitlement.” (Engel v. Worthington (1997) 60 Cal.App.4th 628,
632.)
“ ‘The Legislature adopted section 1021.5 as a codification
of the private attorney general doctrine of attorney fees developed
in prior judicial decisions. [Citation.] Under this section, the
court may award attorney fees to a “successful party” in any
action that “has resulted in the enforcement of an important
right affecting the public interest if: (a) a significant benefit,
whether pecuniary or nonpecuniary, has been conferred on the
8
general public or a large class of persons, (b) the necessity and
financial burden of private enforcement are such as to make the
award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.” . . . [T]he private
attorney general doctrine “rests upon the recognition that
privately initiated lawsuits are often essential to the effectuation
of the fundamental public policies embodied in constitutional or
statutory provisions, and that, without some mechanism
authorizing the award of attorney fees, private actions to enforce
such important public policies will as a practical matter
frequently be infeasible.” Thus, the fundamental objective of the
doctrine is to encourage suits enforcing important public policies
by providing substantial attorney fees to successful litigants in
such cases.’ ” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1288–
1289; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553,
565.)
Code of Civil Procedure section 1032 awards costs as a
matter of right to a prevailing party “in any action or proceeding.”
(Code Civ. Proc., § 1032, subd. (b).)
“[T]he purpose of Code of Civil Procedure section 1033 . . .
is ‘to discourage plaintiffs from “over filing” their cases’ and
thereby ‘wast[ing] judicial resources.’ Accordingly, the trial court
may properly award costs to a plaintiff who recovers less than the
jurisdictional amount for an unlimited civil case when he or she
reasonably and in good faith initiated the action believing that
the ultimate recovery would exceed the jurisdictional limit.
[Citation.]” (Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1053.)
9
Analysis
Plaintiff contends on appeal that the trial court erroneously
denied any attorney fees, litigation expenses, and costs incurred
on his Unruh Act claim. However, his entire argument is built
upon an inference that is not supported by the record. Plaintiff’s
argument requires us to assume—without supporting evidence—
that the trial court separately considered and denied his request
for fees and costs under Civil Code section 52. In the absence of a
reporter’s transcript and any express ruling denying fees under
Civil Code section 52, we conclude that plaintiff has not and
cannot met his burden to demonstrate error.
Plaintiff’s motion sought attorney fees under both Code of
Civil Procedure section 1021.5 and Civil Code section 52, and
nothing in the motion or the supporting declarations makes any
attempt to draw a distinction between fees incurred in support of
injunctive relief and those incurred in support of his damages
claim. In fact, the section of argument in the motion titled
“Plaintiff is the Prevailing Party on his Unruh Act Claim”
consists of just two sentences: “It is indisputable that Plaintiff is
the prevailing party on his Unruh Act claim: judgment was
entered in his favor, and he is the party with a “net monetary
recovery” [(Code Civ. Proc., §1032, subd. (a)(4)]). He is therefore
entitled to an award of costs as a matter of right, including
attorneys’ fees, which are authorized by the Unruh Act [(Code
Civ. Proc., §1033.5, subd. (a)(10)(B); Civ. Code § 52, subd. (a)]).”
In contrast, the motion includes more than five pages discussing
the catalyst theory of attorney fee recovery under Code of Civil
Procedure section 1021.5, and another five pages discussing the
10
reasonableness of the request for fees and litigation expenses.
The attorney’s supporting declaration similarly describes all the
claims together, stating that the fee motion sought recovery of
plaintiff’s “reasonable attorneys’ fees and litigation expenses
incurred in prosecuting (and succeeding on) [plaintiff’s] injunctive
relief and damage claims and in connection with [plaintiff’s] fee
motion.” The declaration states that plaintiff’s most senior
attorney “spent a total of 72.15 hours on this case working on
[plaintiff’s] claims from the inception of this case to
November 17, 2022, and for work on the instant motion . . . .”
The December 14, 2022 ruling makes it clear that the court
considered all three causes of action—the two dismissed claims
and the adjudicated claim for damages—as interrelated. While
analyzing the motion under the catalyst theory applicable to
claims under Code of Civil Procedure section 1021.5, the court
also noted that plaintiff “obtained judgment in his favor after a
trial and a judicial finding of at least one ADA violation.” While
the court did reduce the amount of attorney fees and expert fees
from what plaintiff requested, the motion for attorney fees and
expenses was “GRANTED in the amount of $42,628.50 in
attorney fees, plus $1,992.04 in expert fees.” Nowhere does the
ruling state that the court is denying plaintiff’s claim for fees
under Civil Code section 52.
In his appellate briefing, plaintiff does not raise any
contention that it was error for the trial court to rely upon Code
of Civil Procedure section 1033 to reduce an award of attorney’s
fees rendered under Code of Civil Procedure section 1021.5.
Further, a cost award under Code of Civil Procedure section 1032
may properly be limited under section 1033. (See Moreno v.
Bassi (2021) 65 Cal.App.5th 244, 260–261.)
11
The inadequacy of the record prevents plaintiff from
carrying his burden of demonstrating that the court’s fee and cost
awards constituted prejudicial error. (Rhule v. Wavefront
Technology, Inc., supra, 8 Cal.App.5th at pp. 1228–1229.)
Without a reporter’s transcript, there is no way for this court to
determine whether plaintiff made any concessions pertaining to
whether the court could rely solely on Code of Civil Procedure
section 1021.5, or had an obligation to separately identify fees
and costs awarded (or denied) under Civil Code section 52. The
record shows that the parties received a tentative ruling on the
motion, that there was a hearing (for which we have no record),
and that the court adopted the tentative as its final ruling with
no changes after the hearing. Plaintiff provides no basis to
conclude that it brought to the court’s attention, after receiving
the tentative, that the court’s ruling was tantamount to a denial
of fees under Civil Code section 52. “ ‘ “ ‘ “ ‘In the hurry of the
trial many things may be, and are, overlooked which would
readily have been rectified had attention been called to them.
The law casts upon the party the duty of looking after his legal
rights and of calling the judge’s attention to any infringement of
them.’ ” ’ [Citation.]” . . .’ [Citation.]” (Keener v. Jeld-Wen, Inc.
(2009) 46 Cal.4th 247, 264–265, fns. omitted; see also Chu v. Old
Republic Home Protection Co. Inc. (2021) 60 Cal.App.5th 346,
357.)
In his letter brief dated September 12, 2023, plaintiff
asserts that “a transcript of the proceedings would not help the
Court when there was a tentative ruling, the trial court allowed
argument and then took the matter under submission, ultimately
making its tentative ruling its final ruling . . . .” We reiterate, if
the parties had the tentative ruling before the hearing, and the
12
court made no changes, then in the absence of a reporter’s
transcript or any mention of Civil Code section 52 in the trial
court’s ruling, we have insufficient evidence to conclude that the
court denied fees or costs under Civil Code section 52.
DISPOSITION
The award of fees and costs is affirmed. Defendants and
respondents Min & Hong Corporation and Maureen Hocking are
awarded their costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting, P. J.
KIM, J.
13