Motion for Attorneys Fees

Author: MUZI & ASSOCIATES, LegalEase Solutions 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN than on March 4, 2005 at 9:30 a.m., or as soon thereafter as the matter may be heard, in Department 78 of the Los Angeles Superior Court, located at 111 N. Hill Street, Los Angeles, California, Defendants VAN ELK, LTD, FASSBERG CONSTRUCTION COMPANY, MORILLO CONSTRUCTION, INC. and FIDELITY AND DEPOSIT COMPANY OF MARYLAND (hereinafter “VAN ELK”) will move the Court for an order: (1) determining that VAN ELK is entitled to an award of attorney fees as an item of costs ; and (2) fixing the amount of attorney fees to which VAN ELK is entitled from Plaintiffs JOSE REYES, FRANCISCO REYES, JOSE PEREZ and CARLOS FLORES (hereinafter “PLAINTIFFS”) to $69,821.25 and fixing the amount costs to which VAN ELK is entitled from PLAINTIFFS to $4,379.70.

This motion will be made on the ground that VAN ELK is the prevailing party in an action brought for the nonpayment of wages within the meaning of California Labor Code Section 218.5, and on the further ground that VAN ELK has paid, or has incurred liability for, attorney fees and costs to Muzi & Associates in connection with defending its claim against Plaintiffs, which fees and costs VAN ELK is entitled, as the party prevailing in an action brought for the nonpayment of wages to recover as an items of costs.
This motion will be based on this Notice of Motion, on the attached Memorandum of Points and Authorities, on the attached Declaration of Andrew C. Muzi, on the exhibits attached hereto, on the records on file in this action, and on such evidence as may be presented at the hearing on this motion.

Dated: January 24, 2005 MUZI & ASSOCIATES

MEMORANDUM OF POINTS AND AUTHORITIES

I. LABOR CODE SECTION 218.5

AUTHORIZES AN AWARD OF ATTORNEYS FEES TO VAN ELK

California Labor Code Section 218.5 provides, in pertinent part:
In any action brought for the nonpayment of wages . . . 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.

VAN ELK, the moving party, is the prevailing party in this action brought for the nonpayment of wages and is therefore entitled to an award of attorney’s fees and costs.

On September 11, 2003, PLAINTIFFS filed a Complaint for Damages, alleging, among other things, the nonpayment of wages in violation of Labor Code sections 203 and 203.5. The Complaint for Damages is attached hereto as “Exhibit A.” PLAINTIFFS requested attorney’s fees and costs within this Complaint. (Complaint for Damages, Page 11, Paragraph 36, Page 12, Paragraph 46, Page 13, Paragraph 52, Page 15, Paragraph 60, Page 18, Lines 11 and 18.

On December 20, 2004, this Court awarded summary judgment in favor of the VAN ELK against all PLAINTIFFS in this matter. The Court’s order granting summary judgment and dismissing PLAINTIFFS case against VAN ELK is attached hereto as “Exhibit B.” As such, VAN ELK is the prevailing party in this matter.

VAN ELK has prevailed in this action brought for the nonpayment of wages. Since PLAINTIFFS requested attorney’s fees and costs at the outset of the action, VAN ELK is accordingly entitled to an award of attorney’s fees as an item of costs under Labor Code, section 218.5.

II. VAN ELK IS ENTITLED TO AN AWARD OF $69,821.25 IN ATTORNEY’S FEES AND $4,379.70 IN COSTS
VAN ELK is entitled to an award of $69,821.25 in attorney’s fees and $4,379.70 in costs. Attorney’s fees are recoverable as long as they are deemed reasonable, and the trial court has the authority to determine the reasonableness of the attorney’s fees awarded under California case law. (Adams v. California Mutual Building & Loan Assistance, (1941) 18 Cal.2nd 487; Lewis & Queen v. S. Edmondson & Sons, (1952) 113 Cal.App.2d 705, 708; Fidelity & Deposit Company v. Whitson, (1960) 187 Cal.App.2d 751.)

The attached Declaration of Andrew Muzi, testifies to the hourly rate for fees, the summary of fees, and the individual billing statements which describe in detail the services rendered. In addition, “Exhibit C,” attached hereto, is a Summary of Fees and Costs incurred by the Moving Party in this action. The Summary reflects the total amount of attorney’s fees incurred was $69,821.25 and the total amount of costs incurred was $4,379.70. “Exhibit D,” attached hereto, includes copies of all billing statements from Muzi & Associates for fees and costs incurred in this action. Plaintiff’s Memorandum of Costs Summary, filed concurrently herewith, additionally details the costs incurred by Plaintiff in this matter.

VAN ELK has prevailed in this action brought for the nonpayment of wages. Since PLAINTIFFS requested attorney’s fees and costs at the outset of the action, VAN ELK is accordingly entitled to an award of attorney’s fees and costs under Labor Code, section 218.5.

III. CONCLUSION
Based on the foregoing, VAN ELK respectfully requests this Court determine that VAN ELK is entitled to an award of attorney fees as an item of costs. VAN ELK further requests that this Court fix the amount of attorney fees to which VAN ELK is entitled from PLAINTIFFS to $69,821.25 and fix the amount of costs to which VAN ELK is entitled from PLAINTIFFS to $4,379.70.

Dated: January 24, 2005 MUZI & ASSOCIATES

By: ________________________________
ANDREW C. MUZI, ESQ.
SHANNON C. LAMB, ESQ.
DANA L. HARRIS, ESQ.
Attorneys for Defendants VAN ELK, LTD, FASSBERG CONSTRUCTION COMPANY, MORILLO CONSTRUCTION, INC. and FIDELITY AND DEPOSIT COMPANY OF MARYLAND

DECLARATION OF ANDREW MUZI
I, Andrew Muzi, declare:
1. The facts set forth in this declaration are personally known to me and I have first-hand knowledge of them. If called as a witness to testify, I could and would testify competently to the same.

2. I am an attorney admitted to practice before the Courts of the State of California, and a partner at the law firm of Muzi & Associates, (the “Firm”), and attorneys of record for VAN ELK, LTD, FASSBERG CONSTRUCTION COMPANY, MORILLO CONSTRUCTION, INC. and FIDELITY AND DEPOSIT COMPANY OF MARYLAND. I have been an attorney since 1987 specializing in representing construction companies such as VAN ELK, LTD, MORILLO CONSTRUCTION, INC. and FASSBERG CONSTRUCTION COMPANY.

3. This Declaration is submitted in support of the Moving Party’s Motion for an order (1) determining that VAN ELK is entitled to an award of attorney fees as an item of costs; and (2) fixing the amount of attorney fees to which VAN ELK is entitled from Plaintiffs JOSE REYES, FRANCISCO REYES, JOSE PEREZ and CARLOS FLORES (hereinafter “PLAINTIFFS”) to $69,821.25 and fixing the amount of costs to which VAN ELK is entitled from PLAINTIFFS to $4,379.70.

4. As this Court will recall, PLAINTIFFS brought the instant action against VAN ELK for, among other things, the nonpayment of wages in violation of Labor Code section 203 and 203.5. A true and correct copy of PLAINTIFFS’ Complaint for Damages is attached hereto as “Exhibit A.” PLAINTIFFS requested an award of attorney’s fees and costs in their complaint. (Complaint for Damages, Page 11, Paragraph 36, Page 12, Paragraph 46, Page 13, Paragraph 52, Page 15, Paragraph 60, Page 18, Lines 11 and 18.)

5. On December 20, 2004, this Court awarded summary judgment in favor of the VAN ELK against all PLAINTIFFS in this matter. A true and correct copy of this Court’s order granting summary judgment and dismissing PLAINTIFFS case against VAN ELK is attached hereto as “Exhibit B.”

6. VAN ELK has prevailed in this action brought for the nonpayment of wages. Since PLAINTIFFS requested attorney’s fees and costs at the outset of the action, VAN ELK is accordingly entitled to an award of attorney’s fees as an item of costs under Labor Code, section 218.5.

7. A true and correct summary of the attorney’s fees the Moving Party incurred with the Firm in connection with this action, between October, 2003 and December, 2004, is attached hereto as Exhibit “C.” The summary discloses that the Moving Party has incurred $69,821.25 in attorney’s fees, and costs in the amount of $4,379.70.

8. True and correct copies of the monthly billing statements for the attorney’s fees summarized in “Exhibit C” are attached hereto as “Exhibit D.” These monthly billing statements were compiled from fully documented and detailed time records which are maintained by the Firm in the regular course of its activities, and from appropriate receipts evidencing each cost disbursement.

9. The attorneys at the Firm who provided legal services to the Moving Party in connection with this action, and their respective billing rates are as follows:

Andrew C. Muzi $235.00/hour
Shannon C. Lamb $195.00/hour
Dana L. Harris $180.00/hour

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 25th day of January 2005, at Santa Ana, California.

By: ____________________________
Andrew C. Muzi