In the case of Felix Nino Mota v Allgreen Landscape and National Insurance Company ADJ2567272 (ADM 0105012), the Court of Appeal issued an order denying defendant’s petition for writ of review and found under section 5801 that “there is no reasonable basis for the petition.” Therefore the Court remanded this case to the Appeals Board to make a supplemental award of “reasonable attorney’s fees [to applicant’s attorneys] based upon services rendered in connection with the petition for writ of review.”
Applicant’s attorneys then submitted three unitemized declarations claiming a section 580 I attorney’s fee in the total amount of $51,900, i.e., 62 hours at $500 per hour for Susan E. Kaplan, Esq.,16 hours at $550 per hour for R. Jeffrey Evans, Esq., and 22 hours at $550 per hour for Gary R. Kaplan, Esq.
The WCAB indicated the request for fees was “inadequate.” First,”the declarations do not cite to itemized billings or, indeed, anything that might indicate the time expended on (and the dates of) each specific task” and, therefore, “the declarations of time expended are essentially completely unsupported.” Second, “although the declarations claim a total of 100 hours of attorney time rendered in connection with defendant’s petition for writ of review, the declarations give no indication of why so many hours were reasonably required.” Third, “the declarations include statements that the attorneys’ ‘usual and customary’ rates are $500 to $550 per hour, but the statements are not supported by such potential factors as the attorneys’ status as certified workers’ compensation specialists, if any, or the degree of care exercised and the effort required because of the legal or factual issues involved. Furthermore, a mere declaration that the stated rates of $500 and $550 per hour actually represent applicant’s attorneys’ ‘usual and customary’ rates for appellate work does not establish that those rates are reasonable.” Fourth, “Ms. Kaplan’s declaration also claimed $500 per hour for time she spent performing clerical tasks. However, section 5801 provides for ‘a reasonable attorney’s fee for services rendered in connection with the petition for writ of review.’ We interpret ‘services’ in this context to mean legal services rendered by the attorney, not clerical services the attorney may have performed..
The WCAB went on to say “we ordinarily determine a reasonable fee based on our independent review of the record. Moreover, in the absence of the $51,900 fee claimed, we would have determined that a fee award in the range of $14,000 to $16.000 would have been “reasonable” based on our independent review.”
“However, based on an extensive discussion of California and corresponding federal case law, we emphasized that “where the original request for a “reasonable” attorney’s fee is unreasonably inflated, we may award less than what would otherwise be a “reasonable” fee or even allow no fee at all.”
“Therefore, for the limited purpose of assisting us in determining what fee, between $0 and $16,000, should be awarded, our NIT allowed applicant’s attorneys to file properly itemized declarations. We were not allowing applicant’s attorneys a “second bite of the apple” at justifying the original $51,900 inadequate and defective fee request.”
“On November 2, 2012. applicant’s attorneys filed a response and three supplemental declarations consequent to our October 15, 2012 NIT. Based on our review of the three latest fee declarations, together with our review of the prior declarations and the appellate record. we conclude that the latest fee declarations are not credible and, instead, represent an inaccurate and inadequate after-the-fact attempt to justify the original un-itemized fee request.”
“In concluding that the three supplemental declarations represent a non·credible. inaccurate, and inadequate after-the-fact attempt to justify the original un-itemized fee request, we observe that all three declarations claim that legal services were rendered in connection with the petition for writ of review before (according to its proof of service) it was even mailed and before the petition presumably would have been received by the attorneys in the course of ordinary mail.”
“Because we conclude that the declarations are not credible, and possibly even perjurious, and we will entirely disregard them.”
“Therefore, even though their original fee request was unreasonably inflated, and even though their response to our NIT is inadequate for the reasons specified above ( among others), we will allow a section 5801 fee of $2500.”
“We emphasize that our decision on fees is expressly intended to deter applicants attorneys from making future unreasonably inflated fee requests that are not supported by adequate and accurate time itemizations (or. worse, that are based on non-credible and possibly even perjurious declarations). We specifically observe that our intent is to deter them not only from making unreasonably inflated fee section 5801 requests, but also any other type of “reasonable” attorney’s fee request, including but not limited to deposition attorney’s fees (Lab. Code, § 5710(b)(4)), fees for compensation unreasonably delayed subsequent to the issuance of an award (Lab. Code. § 5814.5), and even fees claimed as a lien against ordinary benefits (Lab. Code, § 4906 (esp., subd. (d)], Cal. Code Regs., tit. 8, § 10775). Moreover) we caution applicant’s attorneys that if they do make such improper fee requests in the future, not only do they risk being allowed a $0 attorney’s fee. but they also risk sanctions under section 5813 and WCAB Rule 10561. (Cal. Code Regs.) tit. 8, § 10561.)”