Filed 2/7/14 Radwan v. Andaluz Bakery and Restaurant CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

AREEJ RADWAN et al., Plaintiffs and Respondents.

v.
ANDALUZ BAKERY AND RESTAURANT, INC., et al., Defendants and Appellants, G047180 (Super. Ct. No. 30

- 2010

- 00339271)

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed.

Law Offices of Edward A. Hoffman and Edward A. Hoffman for
Defendants and A ppellants.

Law Office of Mann & Elias, and Imad Y. Elias for Plaintiffs and
R espondents.
* * *2 Plaintiffs Areej Radwan and Wiaam Abdulzahra filed su it against Andaluz Bakery and Restaurant, Inc. (the restaurant ) , and its owner, Ibrahim Al

- Qawaqneh, claiming Al

- Qawaqneh sexually harassed them while working as waitresses at the restaurant. Plaintiffs alleged causes of action for sex discrimination, sex ual harassment, wrongful constructive termination, battery, and failure to pay wages. After a bench trial of less than eight hours , the court found Al

- Qawaqneh sexually harassed plaintiffs and failed to pay all wages due. The court denied plaintiffs ’ cla im for constructive discharge, however, finding plaintiffs quit their employment for reasons unrelated to the sexual harassment. The court awarded damages totaling $ 14,107 . Neither party appealed the judgment on the merits.

Plaintiffs then moved to reco ver their attorney fees under Government Code section 12965, subdivision (b) and, over defendants ’ opposition, the court awarded $128 ,947.50 in fees. 1 Defendants appeal the fee award, claiming plaintiffs are not entitled to fees, or, alternatively, that t he amount of fees are excessive. We affirm the
order

.

FACTS

Al

- Qawaqneh owns the restaurant. The restaurant hired Radwan in 2008
and Abdulzahra in 2010 as waitresses

. Both Radwan and Abdulzahra testified that their work began with training periods when they were not paid. This period was four days
for Radwan and two weeks for Abdulzahra

. After that, both earned $8 per hour plus tips. Radwan testified that they were expected to eat lunch while on duty and were

1 The operative complaint also alleged an entitlement to attorney fees under Labor Code section 218.5 on the causes of action for unpaid wages. Although plaintiffs prevailed on these causes of action, their motion for attorney fees did not argue for an
awar d under the Labor Code.3

not given lunch breaks, and t hat Al

- Qawaqneh deducted the cost of their meals from their pay

. Both plaintiffs testified that Al

- Qawaqneh frequently engaged in

c onduct they considered harassment

. Radwan testified that Al

- Qawaqneh harassed
her on nearly a daily basis; more times than she could count. On one occasion, he grabbed Radwan and started kissing her against her will. He sometimes touched her
rear end and commented that it was “ fatty , ” saying “ I love chubby girls

. ” Another time he placed his ar m around Radwan ’ s waist

. Radwan asked him to stop, say ing
she wa s ticklish. Al

- Qawaqneh then asked if being ticklish interfered with her sex
life. When Radwan asked him to stop, he would say things like, “Don’t take things
so sensitive. Take it more si mple than that.”

Radwan testified that she felt humi liated and pressured by Al

Qawaq neh ’ s conduct. She had trouble sleeping, and her relationship with her fiancé
suffered. She became irritable and nervous, and , after leaving her employment at the

restau rant , worried about losing custody of her daughter. She was hospitalized for stress in 2009, but did not see a therapist because she could not afford to.

Abdulzahra likewise testified that Al

- Qawaqneh harassed her on nearly a daily basis. In the first i ncident of harassment, Al

- Qawaqneh held Abdulzahra ’ s hand and asked if she was engaged. She told him to release her hand and that it was none of his business. On another occasion, Al

- Qawaqneh grabbed Abdulzahra ’ s cell phone from her hand to look at a pi c ture of her in a swimming pool , and asked her if her breasts were fake, to which she replied it was none of his business. On yet another occasion, Al

- Qawaqneh grabbed her breasts to see if they were real. She slapped his hand and yelled, “ W hat the hell y ou are doing? ” He simply smiled and replied, “ T ake it simply. I ’ m just wanted to find out whether this is fake or not

. ” At4

other times he would make comments such as, “ Your breasts are big and I love big breasts. ”

Abdulzahra testified that she felt weakened and stressed on a daily basis at the workplace because of Al

- Qawaqneh ’ s harassment. She was nervous, but did not feel she needed a psychologist or therapist.

When these things happened , plaintiffs told Al

- Qawaqneh to stop, which angered Al

- Qawa qneh. He would also speak to them in a humiliating manner and make them do unpleasant work that was not part of their normal duties.

Radwan and Abdulzahra both left their employment in August of 2010. This happened after a fight at the restaurant when another female employee named
Amal cursed at Abdulzahra and attacked her in the parking lot. Abdulzahra acknowledged that this fight was a “small part ” of the reason she quit. Radwan
testified that the fight, which apparently did not involve her other than breaking it up , had nothing to do with why she quit. She quit because of the harassment. A restaurant manager testified to the contrary, however, that both claimed to have quit because of the fight. Plaintiffs returned to the restaurant a fe w days later for their final paycheck,
but did not receive it

.

Plaintiffs filed suit alleging 10 causes of action: (1) sex discrimination in
violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) , (2) sexual hara ssment in violation of FEHA, (3) retaliation in violation of FEHA, (4) wrongful constructive termination in violation of public policy, (5) battery, (6) sexual battery, (7) intentional infliction of emotional distress, (8) failure to pay wages (Abdulzahra) , (9) failure to pay wages (Radwan), and (10) conversion. The matter was initially set for a jury trial, but was continued due to plaintiffs’ counsel being ill. Thereafter, the matter proceeded as a bench trial

.5 After a three day bench trial (which to taled less than 8 combined hours of court time), the court entered judgment in plaintiffs ’ favor. The court awarded $2,920 to Radwan in unpaid wages, $1,187 to Abdulzahra in unpaid wages, and $5,000 to each for emotional distress caused by the sexual harassment. The court found, however, that neither plaintiff was constructively terminated. “ Plaint iffs each testified that the cause of Plaintiffs leaving Andaluz was because of a clash with another employee rather than any doing of [Al

- Qawaqneh]. ” 2 Accordingly, the court awarded no damages for loss of future earnings.

Plaintiffs moved for an award o f attorney fees, seeking a lodestar amount of $128 ,947.50 , with a multiplier of two f or a total award of $257,895

. Plaintiffs ’ lead counsel, Imad Elias, submitted a declaration attesting that his hourly rate was $450 per hour, a rate at or below the marke t rate in the “ Los Angeles Area, ” which he defined as Los Angeles County and “ surrounding counties. ” He also attached time records documenting the hours he spent on the case. An associate of his, for whom he charged $225 per hour, likewise submitted a de claration with time records. Plaintiffs also
submitted the declaration of David M. deRubertis , an employment

- law attorney based in Los Angeles County. D eRubertis testified that he was familiar with rates typically charged in Southern California, includin g Orange County, and that $450 per hour was
reasonable. Defendants opposed the motion on several grounds . First, defendants argued the matter should have been brought in limited civil jurisdiction, and that under Code of Civil Procedure section 1033, s ubdivision (a), and following Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, the court should deny attorney fee s altogether. Second, defendants claimed the fee motion was untimely. Third, defendants argued

2 This appears to be a misreading of the testimony. Neither plaintiff testified they quit because of the fight. Plaintiffs did not appeal the judgment, however, and it is now final.6

plaintiffs ’ fee award should be no more th an one

- third of the damages awarded. Fourth, defendants claimed approximately 140 hours of work were “ either not in accordance with the law . . . or greatly exaggerated. ” Defendants did not submit any evidence in connection with their opposition.

The court granted the full lodestar , without the multiplier, stating, “ I thought they justified the hours. ”

DISCUSSION

Substantial Evidence Supports the Attorney Fee s Award

Defendants ’ principal contention on appeal is that the a ttorney fee s award is

no t supported by substantial evidence because none of the declarations in support of the fee motion provided evidence of the prevailing rate in Orange County , as opposed to Los Angeles or elsewhere. We disagree.

“ [T] he fee setting inquiry in California ordinarily begins with the ‘ lodestar, ’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ” ( PLCM Group , Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “ The reasonable hourly
rate i s that prevailing in the community for similar work. ” ( Ibid. , italics added. ) “ Such an approach anchors the trial court ’ s analysis to an objective determination of the value of the attorney ’ s services, ensuring that the amount awarded is not arbitrary. ” ( Ibid

. )

Courts of appeal have expanded on the notion that the hourly rate to be awarded must be that prevailing in the community . In Horsford v. Board of Trustees o f California State University (2005) 132 Cal.App.4th 359 , employees of California State University of Fresno prevailed in an action alleging various employment causes of action, including racial discrimination , and moved for their attorney fees

. ( Id . at p. 372.) Though the matter was tri ed in Fresno C ounty, pl aintiffs ’ lead counsel was from San Francisco, where typical hourly rates are higher. ( Id. at p p . 397

- 3 98.) The trial court7

believed it could only award the prevailing hourly rate in the local community, and thus
refused to award lead counsel ’ s higher ra te, which was typical of San Francisco. ( Ibid. ) The Court of Appeal reversed, finding plaintiff had made a strong evidentiary showing that hiring local counsel was impractical. “ The purpose of statutory attorney fee provisions is to provide financial in centives necessary for the private enforcement of important civil rights. [Citation.] If a potential defendant is too intimidating to the local bar or so replete with resources as to potentially overwhelm local counsel, or if the local plaintiffs ’ bar ha s not the resources to engage in complex litigation on a contingency

- fee basis, the public interest in the prosecution of meritorious civil rights cases requires that the financial incentives be adjusted to attract attorneys who are sufficient to the cause . In the absence of any realistic indication plaintiffs could have found local counsel, it was an abuse of discretion to fail even to consider an hourly rate based on counsel ’ s ‘ home ’
market rate. ” ( Id. at p. 399.)

In Nichols v. City of Taft (2007) 155 Cal.App.4th 1233 , plaintiff brought a sexual harassment suit in Kern County, which settled for $175,000. Plaintiff was represented by Morrison & Foerster, a large law firm with offices in Los Angeles and in the Bay Area. ( Id. at p p

. 1236

- 1237.) Plaintif f sought $507,883.07 in fees for work performed by six attorneys at rates ranging from $225 to $550 per hour (which were their 2005 rates). ( Id. at p. 1237

. ) In opposition, defendants presented evidence that the prevailing rates in Kern County for simil ar work were, at most, $250 per hour for partners and $160 per hour for associates. ( Ibid. ) The trial court granted nearly the entire amount plaintiff sought, but the Court of Appeal reversed. It held there was no evidence plaintiff made a good faith ef fort to hire local counsel before turning to out

- of

- town counsel, and thus the local rate must prevail. ( Id. at pp. 1243

- 12 44.)

Here, defendants contend plaintiffs presented no substantial evidence of the prevailing rate in Orange County , and thus the proper award should have been zero. We disagree for two reasons.8 First, defendants misread the record. The Elias declaration specifically opined that his rate of $450 per hour was at or below the prevailing rate in the “ Los Angeles Area, ” which he defin ed to include Los Angeles County and surrounding
counties. Orange County adjoins Los Angeles County. Also , deRubertis declared he was familiar with the prevailing rates in Orange County and that $450 per hour was
reasonable. Defendants criticize the deR ubertis declaration on the ground that it never specifically said $450 is the prevailing rate in Orange County, only that it is reasonable. But that is an overly cramped reading of the declaration. While perhaps not ideally worded, the clear gist of the declaration is that $450 is a reasonable rate in Orange County. Thus there was substantial evidence of the prevailing rate in Orange County.

Second, defendants misread the case law. Defendants would have us erect a procedural trap for unwary attorneys w ho fail to opine on the prevailing rate in the
county . But the touchstone is the prevailing rate in the community . The community does not necessarily stop at the county line. In Nichols v. City of Taft , supra , 155 Cal.App.4th 1233, the defendants put on evidence that the prevailing rate in Kern County was below that sought by lawyers from Los Angeles and the Bay Area. ( Id . at p. 1237

. ) Here , defendants did not even raise the issue below, much less put on evidence that the prevailing rate in Orange Coun ty differs significantly from Los Angeles County. And given the close proximity and economic affluence of both counties, it is not clear to us
that there is a significant difference. Thus the evidence plaintiffs presented adequately substantiated the pre vailing rate in the community

.

The Trial Court Did Not Abuse I ts Discretion i n Awarding Fees Despite the Damage Award Being Less t han the Jurisdictional Minimum for an Unlimited Civil Case

Defendants claim the trial court abused its discretion under Code of Civil
Procedure section 1033, subdivision (a), which states, “ Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited9

civil case in accordance with [Code of Civil Procedure] Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil

case. ” Code of Civil Procedure section 1033 , subdivision (a), “ interpreted according to its plain meaning, gives a trial court discretion to deny attorne y fees to a plaintiff who prevails on a FEHA claim but recovers an amount that could have been recovered in a
limited civil case. In exercising that discretion, however, the trial court must give due consideration to the policies and objectives of the FEH A in general and of its attorney fee provision in particular. ” ( Chavez v. City of Los Angeles , supra , 47 Cal.4th at p. 976.) “ In making this evaluation, the trial court should exercise caution to avoid ‘ hindsight bias, ’ which is the recognized tendency f or individuals to overestimate or exaggerate the predictability of events after they have occurred. [Citation s .] If, based on the available information, the plaintiff ’ s attorney might reasonably have expected to be able to present
substantial evidence su pporting a FEHA damages award in an amount exceeding the damages limit (now $25,000) for a limited civil case, or if the plaintiff ’ s attorney might reasonably have concluded that the action could not be fairly and effectively litigated as a
limited civil c ase, the trial court should not deny attorney fees merely because, for example, the trier of fact ultimately rejected the testimony of the plaintiff ’ s witnesses or failed to draw inferences that were reasonably supported, although not compelled, by the pla intiff ’ s evidence. ” ( Id. at p p . 986

- 9 87.)

In their opening brief, d efendants contend, “ Much of respondents ’ claim was for lost future earnings after they were supposedly forced to quit. [Citation.] In closing arguments, their counsel sought $250,000 fo r each of them on this part of their
claims. [ 3 ] [Citation.] But the trial court correctly found that they quit because of conflicts with another employee, not because of harassment. [Ciation.] They could not have

3 The $250,000 figure is a misreading of t he record. Plaintiffs each sought $250,000 in emotional distress damages. They later supplemented their closing argument by requesting approximately $80,000 in combined lost earnings10

reasonably expected consequential damages for a constructive termination that never
ha ppened. ” But plaintiffs claim it did happen. And though the trial court found otherwise, we are not to engage in hindsight bias. Plaintiffs ’ own claim that they left due
to Al

- Qawaqneh ’ s harassment, with the attendant loss of post

- termination earnings, provided their counsel with a reasonable basis to file in a court of unlimited civil jurisdiction. T he mere fact that the court found against plaintiffs on the constructive
termination claim is no basis for us to find the court abused its discretion in aw arding
fees. Further, plaintiffs sought emotional distress damages for the sexual harassment that did in fact occur. While the court awarded only $5,000 to each plaintiff, such awards are inherently unpredictable and could easily have exceeded the $25, 000
limit . Indeed, in their fee motion, plaintiffs presented evidence that the median award in a sexual harassment case in Orange County from 2007 through 201 1 was $ 177,106

. Defendants criticize this evidence, claiming plaintiffs “ o ffered no evidence tha t those
other cases were similar to this one. ” But plaintiffs do not need iron clad proof that they

a re entitled to a large award for emotional distress damages; they only need a reasonable basis for believing they could receive such an award. “ The trial court was familiar with all of the trial proceedings and with the evidence presented at trial. It was therefore in a much better position than this court

. . . to determine whether this action could fairly and effectively have been litigated as a limited civil case and also whether [plaintiffs’] attorney should have realized, well before the action pro ceeded to trial, that [plaintiffs’] injury was too slight to support a damage recovery in excess of $25,000. We have no reason to question the trial court ’ s implied determinations on these points. ” ( Chavez v. City of Los Angeles , supra , 47 Cal.4th at p. 991 .)11

The Trial Court Did Not Abuse Its Discretion in the Number of Hours Awarded

Defendants contend the court abused its discretion in awarding all of the hours plaintiffs claim ed and request that we reduce the award . In particular, defendants claim plaintiffs ’ trial preparation time

— which totaled 136 hours

— was excessive. They note that the trial lasted less than eight hours total. There were eigh t witnesses and eight exhibits. There were four motions in limine. There were no other pretrial or post trial motions (except the attorney fee s motion). And d efendants asserted no
affirmative defenses.

Plaintiffs ’ counsel submitted verified time records . 72 hours of the trial preparation is reflected in a single block

- billed entry, spanning one week , at a time when a jury trial was contemplated. The entry reads: “ TRIAL preparation. Includes: Review and analyze all deposition testimonies [of which th ere were five], discovery responses, review and analyses of records, time cards, clients written communication; Review relevant law; prepare direct examinations, cross examinations, voir dire questions, opening statement, closing argument; prepare trial no tebook. ” Counsel spent another 20 hours the following week as follows: “ Review trial notebook. Final trial preparation (re

review MILs): t/c clients re: trial testimony. ” The trial was then continued for approximately two months. Prior to the new tria l date, there are entries for 10 hours to prepare a trial brief, 10 hours to review the trial notebook and general trial preparation, and three hours of meeting with plaintiffs to go over testimony. D uring the trial , counsel
recorded an additional 21 hour s of “ Trial (and preparation during trial). ”

At the hearing on the fee motion, in response to defendants ’ argument that plaintiffs ’ counsel ’ s hours were excessive, the trial court commented, “ I thought they justified the hours. ”

The standard of review is highly deferential. “ The ‘ experienced trial judge is the best judge of the value of professional services rendered in [her] court, and
while [her] judgment is of course subject to review, it will not be disturbed unless the12

appellate court is convinced that it is clearly wrong. ’” ( Serrano v. Priest (1977) 20 Cal.3d 25, 49 ; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 581 [ “ the aw arding of attorney fees and the calculation of attorney f ee enhancements are highly fact

- specific matters best left to the discretion of the trial court ” ].) “ The only proper basis of reversal of the amount of an attorney fees award is if the amount
awarde d is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination. ” ( Akins v. Enterprise Rent

– A

– Car Co. (2000) 79 Cal.App.4th 1127, 1134 .)

Defendants ’ simple and straightforward argument is that the number of hours here is, in their words, “ absurd. ” We disagree. While the hours are on the high
side , given the simplicity and short duration of the trial, they do not shock our conscience, nor was the court clearly wrong in awarding such fees. 4

Defendants Forfeited the Argument that the Court Should Have Apportioned Fees Between Successful and Unsuccessful Causes of Action

Finally, defendants contend the court failed to apportion plaintiffs’ legal
fees between successful and unsuccessful causes of action. (See Environmental Protection Infor

mation Center v. Department . of Forestry and Fire Protection (2010) 190 Cal.App.4th 217, 238

- 2 39 .) The f ailure, however, was defendants . They failed to
raise the issue below. Whether to reduce a fee award t o account for unsuccessful claims is left to the trial court’s discretion. ( Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274 [“ Rather than adopt a rigid holding, we conceive it to be far more
beneficial to leave it to the discretion of the trial court to determine whether time spent on an unsuccessful legal theory was reasona bly incurred ”].) Defendants’ failure to raise the
issue in the trial court forfeited it on appeal.

4 Since we find no basis to reduce the award, we likewise find no ba sis to eliminate the award based on an allegedly inflated demand, as defendants contend.13 DISPOSITION

The postjudgment order of the court is affirmed. Plaint iffs shall recover their costs and reasonable attorney fees on appeal.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.