Yadira v. Fernandez
Filing
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ORDER by Judge Ronald M. Whyte finding as moot (167) Motion for Attorney Fees; granting (168) Motion for Attorney Fees in case 5:08-cv-05721-RMW; denying (119) Motion for Attorney Fees in case 5:08-cv-05722-RMW (rmwlc1, COURT STAFF) (Filed on 3/27/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ALMA YADIRA, et al.,
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Case Nos. C-08-05721, C-08-05722 RMW
(related)
Plaintiffs,
ORDER RE PLAINTIFF YADIRA’S
MOTION FOR ATTORNEY’S FEES AND
COSTS AND DEFENDANT
FERNANDEZ’S MOTION FOR
ATTORNEY’S FEES AND COSTS
v.
JESUS FERNANDEZ, et al.,
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Defendants.
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FLORENCIA MONDRAGON, et al.,
Plaintiffs,
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v.
JESUS FERNANDEZ, et al.,
Defendants.
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In these consolidated cases numbered C-08-05721 (“Yadira”) and C-08-05722
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(“Mondragon”), plaintiff Alma Yadira and defendant Jesus Fernandez, respectively, move for
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attorney’s fees. For the reasons explained below, the court grants Yadira’s motion for attorney’s
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ORDER RE ATTORNEY’S FEES
CASE NO. C-10-04686 –RMW
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fees and costs but for a lesser amount than requested, denies Fernandez’s motion for attorney’s
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fees, and grants Fernandez’s motion as to costs taxed by the clerk.
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I.
BACKGROUND
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Plaintiffs Yadira and Florencia Mondragon brought these actions seeking wages and
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penalties for overtime hours they claim they worked for Fernandez’s establishments but for which
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they were not paid at an overtime rate. On June 14, 2011, this court granted summary
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adjudication in favor of plaintiff Yadira and against defendant Fernandez, individually, and doing
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business as Tony’s Pool Hall, for his failure to provide accurate wage statements as required by
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California labor law, finding Yadira entitled to $4,000.00 on that claim.
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The remaining claims in these consolidated cases came on regularly for jury trial on
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March 26, 2012, and were tried from March 26, 2012 through April 2, 2012. At trial, the plaintiffs
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dropped their class action and California Private Attorney General Act claims. The jury returned a
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verdict awarding $1,980.00 to Yadira for unpaid overtime wages both under California labor law
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and under the Federal Fair Labor Standards Act. The jury awarded an additional $1,980.00 to
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Yadira as liquidated damages on her federal claim and an additional $990.00 as a penalty
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authorized by California law for the willful failure to pay overtime wages upon termination of
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employment. The jury returned a verdict in favor of defendant Fernandez and against Yadira on
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her meal break claim.
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The jury found in favor of Fernandez and against Mondragon on her California meal
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break claim and on her overtime claim under the FLSA. The jury did not unanimously agree on
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whether Mondragon was an exempt employee under California law and thus not entitled to
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overtime compensation. Therefore, Mondragon’s claim under California law that she was a non-
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exempt employee and entitled to overtime wages had to be re-tried.
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On September 4, 2013, plaintiff Mondragon dismissed without prejudice her California
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state law claim for overtime wages and proceeded to trial before the undersigned on her equitable
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claim for restitution under the California Business and Professions Code § 17,200 et seq. On
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September 20, 2013, after trial and consideration of the evidence and arguments of counsel, the
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court issued its Findings of Fact and Conclusions of Law, finding that the evidence established
ORDER RE ATTORNEY’S FEES
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that Mondragon was an exempt employee and concluding that she was not entitled to recover
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overtime wages from Fernandez, individually, or doing business as Maria’s Nightclub.
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II.
ANALYSIS
As the prevailing party, plaintiff Yadira now seeks $25,128 in attorney’s fees plus her
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taxable costs in Yadira. Fernandez opposes Yadira’s motion and contends that Yadira should be
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awarded no more than $3,485 in attorney’s fees. Fernandez, as the prevailing defendant in
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Mondragon, seeks $93,235.10 in attorneys’ fees in addition to his costs.
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Mondragon opposes Fernandez’s motion. Fernandez is only entitled to fees in Mondragon
if Mondragon’s claims were frivolous or brought in bad faith. Roadway Express, Inc. v. Piper,
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447 U.S. 752, 765 (1980). Mondragon contends that her claims, albeit losing, were not frivolous
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or brought in bad faith.
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A.
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Yadira seeks $25,128 in attorney’s fees. Fernandez argues that Yadira is only entitled to
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Yadira’s Motion
fees of $3,485. The court awards Yadira $18,341.25 in attorney’s fees.
1.
Reduction for partial success
First, Fernandez argues that the attorney’s fees should be reduced because Yadira was
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only partially successful in her claims. In such cases, a reduced fee award is appropriate when the
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relief is limited in comparison to the scope of the litigation as a whole. Hensley v. Eckerhart, 461
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U.S. 424, 439 (1983). To determine the appropriate award, the court applies a two-part analysis:
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if the unsuccessful and successful claims are unrelated, the final fee award may not include time
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expended on the unsuccessful claims; if the unsuccessful and successful claims are related, the
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court evaluates the “significance of the overall relief obtained by the plaintiff in relation to the
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hours reasonably expended on the litigation.” Thorne v. City of El Segundo, 802 F.2d 1131, 1141
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(9th Cir. 1986) (quoting Hensley, 461 U.S. at 434-35). ”The test for relatedness of claims is not
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precise,” but courts have looked to whether the unsuccessful claim is intended to remedy an
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entirely distinct and separate course of conduct, and whether the evidence overlapped. Id. Here,
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the court finds that the successful and unsuccessful claims were related for the purposes of
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the Hensley analysis. All of the claims dealt with the course of conduct relating to Yadira’s work
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for Fernandez and involved overlapping evidence of Fernandez’s practices in compensating
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Yadira.
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However, the court notes that the relief obtained by Yadira was considerably less than the
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total damages sought. A reduction in the claimed fees is appropriate. See Hensley, 461 U.S. at
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436-37 (“The district court may attempt to identify specific hours that should be eliminated, or it
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may simply reduce the award to account for the limited success.”). The preferred approach,
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however, is to reduce the hours claimed and hourly rate sought. See Corder v. Gates, 947 F.2d
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374, 378 (9th Cir. 1991) (noting a reduction in the lodestar figure rather than a reduction in the
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reasonable hours is a disfavored approach but acceptable as long as the district court makes “only
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one reduction for lack of success”) (citing Cabrales v. County of Los Angeles, 864 F.2d 1454,
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1465 (9th Cir.1988)). Here, the court will follow the preferred approach and adjust the hours
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expended and the hourly rate requested.
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2.
Reasonableness of hours claimed
Defendant argues that the claimed hours are unreasonable. Defendant specifically objects
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to the following: (1) all time related to plaintiff’s handwriting expert because of alleged
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improprieties regarding the expert; (2) all time above the $22,848.00 shown in the plaintiff’s
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attorney’s supporting declaration; (3) trial day time over 5 hours; (4) all time related to
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defendant’s witnesses; and (5) certain time related to the motions in limine. Overall, defendant
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contends that the hours are overstated by about 35%.
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The court finds that defendant’s objections have some limited merit. The time spent with
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defendant’s handwriting expert was in large part wasted as a result of counsel’s carelessness in
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providing inappropriate “known” signatures. Therefore, the court reduces by two hours the time
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spent meeting with the expert.
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Defendant claims that any time spent resulting in fees in excess of $22,484 should not be
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awarded because any time in excess of that amount would exceed the time supported by the
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declaration of plaintiff’s counsel. Although plaintiff’s counsel’s papers are inconsistent in their
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references to the time spent, the hours set forth in counsel’s declaration are consistent with the
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higher figure referenced in plaintiff’s papers. Therefore, the court makes no reduction for lack of
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sworn support. The court also notes that plaintiff through carelessness or otherwise has not listed
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all the time counsel spent (e.g., no time listed for drafting complaint, discovery).
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Defendant points out that plaintiff claims eight hours per day for “jury trial” when the
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court’s hours ran from 8:30 a.m. to 1:30 p.m., a total of five hours per day. The court finds that
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plaintiff’s counsel undoubtedly included hours spent outside of the court room in preparing for
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the trial days. Therefore, again, the court makes no reduction.
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Defendant objects to the time attributed to plaintiff’s counsel’s talking with his clients
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about defendants’ witnesses. Defendant points out that the witnesses listed were only involved in
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the Mondragon case. The total time attributed to this activity is .63 hours and the court believes
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that counsel would have spent at least that amount of time talking about witnesses relevant to the
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Yadira case including Fernandez and Yadira.
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Finally, defendant claims that time should be deducted for plaintiff’s preparation of
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unnecessary in limine motions. Defendant complains that plaintiff has failed to delineate which
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motions counsel seeks payment for, that plaintiff lost most motions, and some of the motions only
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applied to Mondragon. The court does not find the time spent for the motions to be unreasonable.
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However, plaintiff did increase the time spent by making class action and PAGA claims which it
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appears counsel never seriously intended to pursue. The court reduces plaintiff’s claim by one
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hour for time unnecessarily spent in making the class action and PAGA claims.
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In summary, the court reduces the hours claimed by plaintiff’s counsel by three hours
resulting in 48.91 hours to be used in lodestar calculation.
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Hourly rate
The court finds that $480 is an excessive hourly rate for plaintiff’s counsel. Yadira relies
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on the Laffey matrix to arrive at his requested rate. However, the burden remains on Yadira to
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demonstrate that the hourly rates are reasonable, as determined by reference to fees charged by
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attorneys of comparable ability and reputation for legal work of similar complexity. See Perez v.
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Cozen & O’Connor Group Long Term Disability Coverage, 2007 WL 2142292 at *2 (S.D. Cal.
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2007). Yadira’s counsel simply states that he has been in practice since 1999. Here, however,
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strictly applying the Laffey matrix would be inappropriate because those rates are for
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“experienced federal court litigators,” which Yadira’s counsel is not. He does have expertise in
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wage and hour cases and has a good working knowledge of the field. However, he is not an
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experienced litigator. This court takes into account counsel’s lack of trial experience and also
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notes that he was awarded $350 per hour in a previous wage and hour case only one and one half
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years ago. Lazaro v. Lomarey Inc., C-09-02013 RMW, 2012 WL 2428272 (N.D. Cal. June 26,
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2012). After considering plaintiff’s counsel’s years of experience, the complexity of this case, the
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quality of the legal work performed, and plaintiff’s partial lack of success, the court finds that
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$375 per hour is a reasonable rate for an attorney of plaintiff’s counsel’s experience, knowledge
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and performance. The lodestar fee is, therefore, $18,341.25 (48.91 hours x $375).
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4.
Costs
Yadira’s counsel filed a bill of costs on Yadira’s behalf. However, most of the costs
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appear to have been incurred with respect to Mondragon’s case. The only fees clearly related to
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Yadira are the $350 filing fee and the $88.50 fee for service of process. It appears that the
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interpreter’s fees, transcript fees, and other costs, or at least the vast majority of them, were
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incurred for Mondragon’s case. Therefore, the only costs awarded to Yadira total $438.50.
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B.
Fernandez’s Motion
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Lack of bad faith
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“[T]he general rule in federal courts is that a litigant cannot recover his counsel fees. But
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that rule does not apply when the opposing party has acted in bad faith.” Roadway Express, Inc. v.
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Piper, 447 U.S. 752, 765-66 (1980) (citations omitted). “[A] court may assess attorney’s fees
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when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers
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v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (citations and quotations omitted). A district court
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must make “a specific finding as to whether counsel’s conduct in this case constituted or was
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tantamount to bad faith.” Id., at 767. Here, the court finds that there was no such bad faith.
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Mondragon’s contention that she spent more time performing as a bartender and doing non-
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exempt work than performing as a manager—although contrary to the court’s ultimate
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determination—was not frivolous. In fact, the jury in the original trial hung on whether
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Mondragon was exempt under California law. The court does not find that Mondragon “has acted
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in bad faith, vexatiously, wantonly, or for oppressive reasons,” and therefore denies Fernandez’s
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motion for attorneys’ fees.
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2.
Costs
As stated in the court’s September 30, 2013 judgment, Fernandez is entitled to his costs
associated with the Mondragon case in the amount of $2,474.70 as taxed by the clerk.
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III.
ORDER
For the foregoing reasons, the court awards attorney’s fees in the amount of $18,341.25
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and costs in the amount of $438.50 to plaintiff Alma Yadira and against Defendant Jesus
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Fernandez, individually and doing business as Tony’s Pool Hall. The court awards costs in the
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amount of $2,474.70 to Fernandez, individually and doing business as Maria’s Nightclub.
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Dated: March 27, 2014
Ronald M. Whyte
United States District Court Judge
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