[00:00:10] Speaker 02:
represent the appellants.

[00:00:12] Speaker 02:
The court should reverse the decision below because the trial court did not exercise its discretion and did not determine whether the fee award submitted by the at-police council complied with the party's 998 agreement.

[00:00:27] Speaker 02:
By its own admission, the trial court expressly declined to examine the propriety of the fees

[00:00:36] Speaker 02:
It held that because the at-police council had agreed to reduce its initial inflated request for fees of close to $600,000, the court did not have to then review the application to ensure that it complied with the party's 998 agreement.

[00:00:55] Speaker 03:
I just want to clarify a point here.

[00:00:58] Speaker 03:
It's your position that the 998 agreement precludes even a Hensley analysis.

[00:01:07] Speaker 03:
should not apply Hensley, that that's not the appropriate standard.

[00:01:11] Speaker 03:
And in fact, there's this contractual reason that Ms.

[00:01:18] Speaker 03:
Alvarado has precluded entirely from seeking fees for any claims other than her individual claims.

[00:01:24] Speaker 02:
Yes, that's correct.

[00:01:26] Speaker 03:
But in the lower court, you argued that Hensley applied.

[00:01:29] Speaker 03:
And under the Hensley analysis, the fees that were awarded are improper.

[00:01:34] Speaker 03:
So help me understand.

[00:01:36] Speaker 03:
why you didn't raise the contractual argument below and now on appeal you're saying that that's the only argument that we should consider.

[00:01:51] Speaker 02:
in our papers below.

[00:01:53] Speaker 02:
And certainly there was discussion below about Henley, but ultimately this court has to decide the proper analysis to use.

[00:02:03] Speaker 02:
And the 998 is the controlling document in this case that enables the other side to even have any ability to recover fees.

[00:02:13] Speaker 03:
But you didn't argue in front of the district court.

[00:02:16] Speaker 03:
that the 998 agreement is the controlling or governing rule for purposes of the fee application.

[00:02:25] Speaker 03:
In fact, you really only argued the Hensley factors.

[00:02:29] Speaker 02:
We certainly raised the 998 issue.

[00:02:31] Speaker 02:
I mean, I think the Hensley was

[00:02:52] Speaker 02:
So the application is made for close to $600,000 in fees.

[00:02:58] Speaker 02:
We file our opposition.

[00:03:01] Speaker 02:
The other side says, yes, you're right, that perhaps half of that is inflated.

[00:03:06] Speaker 02:
And then the court says specifically that, OK, well, they've reduced it.

[00:03:13] Speaker 03:
Did the language in the 998 agreement express

[00:03:42] Speaker 02:
Well, I think that what the key language is says that plaintiff's counsel may seek an award of reasonable attorney's fees and costs actually incurred as of the date of this offer in pursuit of plaintiff's individual claims in this action and recoverable by law.

[00:04:14] Speaker 02:
brought by plaintiff's counsel, including without limitation, the right to oppose any request for fees or costs not incurred in the prosecution of plaintiff's remaining individual claims.

[00:04:26] Speaker 02:
The clear import of the 998 was to say, we will pay you $22,000 if you settle the case.

[00:04:34] Speaker 02:
You can recover your attorney's fees, but only those that were incurred as part of the individual lawsuit.

[00:05:11] Speaker 02:
the individual claims that are recoverable by law.

[00:05:15] Speaker 02:
I don't think it's expanding it because otherwise it would be essentially saying, well, you can get whatever fees you want.

[00:05:22] Speaker 02:
It would be superfluous to have any language referring to individual claims if it is simply we're going to follow him.

[00:05:40] Speaker 02:
application of the Hensley standard.

[00:05:43] Speaker 02:
The Hensley standard key point is, what success did you achieve?

[00:05:47] Speaker 02:
A 9-8 offer says you get reasonable attorney's fees and cost action incurred in pursuit of individual claims, i.e.

[00:05:53] Speaker 02:
not the class action claims.

[00:06:04] Speaker 02:
I think that's largely correct except that to the extent that if we interpret Henley, the Henley analysis

[00:06:36] Speaker 02:
with the 998.

[00:06:38] Speaker 02:
If Henley is interpreted, as the other side interprets it to mean, that while any kind of success means that you can recover any kinds of fees, then I think it's inconsistent with the contractual relationship that the parties agree to when they sign the 998.

[00:06:52] Speaker 03:
And that's why you're starting with the 998 agreement.

[00:06:55] Speaker 03:
That's why you're saying, actually, we're not arguing for a Hensley analysis.

[00:06:59] Speaker 03:
We think 998 precludes any request for fees, even if.

[00:07:05] Speaker 03:
they're intertwined with her individual claims, correct?

[00:07:08] Speaker 02:
Well, I think that the 998 is controlling, and I would just say that again, that I think that before we even get to that, that we have to address the district court's failure to conduct any review of the application after the amount was reduced.

[00:07:27] Speaker 01:
Just to follow up on Judge Desai's last question,

[00:07:34] Speaker 01:
Put it in concrete terms, so suppose that there's a building entry for 20 hours researching some issue that was relevant both to the individual claim and to the class or PACA claims.

[00:07:48] Speaker 01:
Is that recoverable, not recoverable, or some portion of it?

[00:07:53] Speaker 02:
I think it would be the district court would have the discretion to look at that and apply the 998, which says

[00:08:05] Speaker 02:
and class, the district court would then have the discretion how to apply the 998.

[00:08:10] Speaker 02:
But the district court would have to exercise that discretion.

[00:08:12] Speaker 01:
Right.

[00:08:13] Speaker 01:
And you would ask it to exercise that discretion how?

[00:08:17] Speaker 02:
By, well, I think that in this case, the vast majority of the effort and the time was in pursuit of the class of Paga claims.

[00:08:27] Speaker 02:
So that entry of however many hours in research

[00:08:37] Speaker 02:
extent that it involved individual claims.

[00:08:43] Speaker 02:
Now, I want to talk, so again, I think that just to reiterate the point that the failure to exercise this question here is fatal and requires reversal.

[00:08:54] Speaker 02:
I think that what the court did was it trusted but didn't verify, and as a result just adapted

[00:09:08] Speaker 02:
admits is incorrect, that the remarkable thing about, one of the remarkable things about the district court's decision is that both sides agree that it is incorrect, that there are degrees of incorrectness, but both sides agree that there are amounts that are not recoverable that the district court

[00:09:32] Speaker 02:
I think that when we look at the, had the court examined and done what it was supposed to do and examined the application in response after the reduction, there are a variety of categories that we pointed out in our briefing that are

[00:09:58] Speaker 02:
of the class and Pogba claims.

[00:10:00] Speaker 02:
So there was like $42,000 that was awarded for opposing motions to dismiss that the other side lost.

[00:10:09] Speaker 02:
There were motions to dismiss the class claims and the third and fourth complaints, failure to state a claim.

[00:10:15] Speaker 02:
The court had granted them.

[00:10:16] Speaker 02:
They shouldn't get fees for that.

[00:10:18] Speaker 02:
There was no relationship to

[00:10:21] Speaker 02:
the individual claims, they were directed solely to the dismissal of class claims.

[00:10:27] Speaker 02:
There were four amended complaints in this case of 36,000.

[00:10:31] Speaker 02:
Each time the complaints were attacked based on class claims, and they were consistently either abandoned or the court dismissed them.

[00:10:43] Speaker 02:
So it's another $36,000 that should be dismissed.

[00:10:46] Speaker 02:
There was written class discovery of close to $40,000.

[00:10:51] Speaker 02:
uh... asking things like to do class members contact information repeated requests for documents records wage statements for other people other than him that nothing to his individual claims uh... he'd already received

[00:11:18] Speaker 02:
in the Glyndora store where Ms.

[00:11:21] Speaker 02:
Alvarado worked.

[00:11:23] Speaker 02:
There were meetings conferring for topics at the other side of Glyndon.

[00:11:27] Speaker 02:
There were times spent for broad topics regarding California policies that again go way beyond what Ms.

[00:11:36] Speaker ?:
Alvarado had.

[00:11:50] Speaker 02:
to intervene, she could simply just opt out.

[00:11:53] Speaker 02:
There was no reason for it to intervene except to preserve her own class or Paga claims.

[00:11:59] Speaker 02:
And then finally, most of the argument in the briefing from the other side relates to this notion that because, according to them, Paga has both individual and non-individual aspects under Viking River, that anything that the other side spent in pursuit of their Paga claim is somehow recoverable

[00:12:21] Speaker 02:
Viking River.

[00:12:22] Speaker 02:
Viking River said that the California rule that there's only one pilot claim and it's a representative action falls only when there's an arbitration issue and the federal arbitration issue then requires that division between individual and non-individual claim.

[00:12:40] Speaker 03:
I wanted to ask you to go back to a statement that you made earlier in response to one of my questions that you're arguing now

[00:13:12] Speaker 02:
And so...

[00:13:41] Speaker 02:
the attorney spent, attorney time spent on class certification proceedings, including work on any potential appeal, and to forego the entirety of the legal assistance time.

[00:13:51] Speaker 02:
Thus, an analysis regarding apportionment is moot.

[00:13:56] Speaker 02:
So the district court said, we're just going to accept what the other side, and we're not even going to look to see if there's anything else in there that needs to be apportioned.

[00:14:04] Speaker 02:
And in fact, the other side has now conceded there was other time that should be reduced.

[00:14:11] Speaker 03:
That our position is that that is an abusive discretion in of itself.

[00:14:42] Speaker 03:
contract claim that I don't see anywhere below.

[00:14:45] Speaker 03:
And so I'd like to be able to know, as you, I think, said to me earlier, that that argument was, in fact, presented to the district court.

[00:14:53] Speaker 02:
Can you point me to where in the microphone?

[00:14:55] Speaker 02:
I cannot.

[00:14:55] Speaker 02:
There's – I can certainly – we'll go back to my office, and if the court wants me to – We'll give you two minutes for rebuttal.

[00:15:02] Speaker 01:
You can take a look at counsel's table and then – All right.

[00:15:05] Speaker 01:
All right.

[00:15:05] Speaker 01:
I will do that.

[00:15:06] Speaker 01:
Thank you.

[00:15:06] Speaker 01:
And we will give you – we took your – you step up your time.

[00:15:10] Speaker 01:
We'll give you two minutes for rebuttal.

[00:15:30] Speaker 02:
The second question is, did the district court abuse this discretion?

[00:15:35] Speaker 03:
Why should we address the first question at all when it wasn't raised, in my view?

[00:15:39] Speaker 03:
I can't find where the issue of the contract and what it means beyond allowing your client to seek attorney's fees related to your individual claims and those that are permitted by law.

[00:15:51] Speaker 03:
Why should we even consider sort of this broader argument that I think your friend on the other side is making, which is that 998 agreements as a general matter are

[00:16:00] Speaker 03:
analysis under Hensley, which is what the California courts typically do when they're evaluating fee applications.

[00:16:06] Speaker 02:
Your Honor, I think it's a distinction without a difference, frankly, from my point of view.

[00:16:12] Speaker 02:
Under either analysis, I think that affirmance is required.

[00:16:16] Speaker 02:
I'm starting there because there was an agreement, there was a contract, and the court interpreted the contract in exercising its discretion.

[00:16:24] Speaker 02:
That's why I'm starting there.

[00:16:25] Speaker 02:
And then beyond that, the contract specifies, you know,

[00:16:30] Speaker 02:
fees for work performed in pursuit of individual claims and available by law.

[00:16:35] Speaker 02:
So the contract points as well to fees available by law.

[00:16:40] Speaker 02:
So I think the contract incorporates Hensley.

[00:16:42] Speaker 01:
So I think it's an overlap.

[00:16:44] Speaker 01:
And just to be clear, you have in your brief urged us to interpret the contract and apply the contract as you understand it.

[00:16:54] Speaker 02:
Indeed, and we actually pointed out that the contract never says

[00:17:07] Speaker 01:
are forfeited because they didn't make the right arguments below, have you?

[00:17:14] Speaker 02:
We did not make a forfeiture argument based on the contract, but I think it's because, precisely because, in my view, we went on either analysis, right?

[00:17:22] Speaker 02:
I mean, does the contract permit or not permit attorneys to work on overlapping claims?

[00:17:28] Speaker 02:
That's where I was going to start, frankly, and in the absence of the word solely.

[00:17:33] Speaker ?:
So the Walmart is arguing that

[00:17:36] Speaker 03:
there is improper entirely to go through this Hensley analysis.

[00:17:41] Speaker 03:
In fact, they don't reference Hensley at all in their opening brief.

[00:17:44] Speaker 03:
And in the reply, the only two pages that talk about Hensley are committed to talking about how Hensley is improper.

[00:17:53] Speaker 02:
That's correct.

[00:17:54] Speaker 02:
I think the reason, frankly, why Walmart does that is that Hensley specifically states that where there's a common core of facts and the claims are based on related, intertwined legal theories, it is improper

[00:18:14] Speaker 02:
claims.

[00:18:15] Speaker 03:
Could Walmart have included language in the 998 agreement that specifically and expressly limited your client's ability to seek fees under sort of a Hensley analysis, meaning that she's agreeing to waive any fees that might have been sort of incurred for her individual claims if the work was also done in furtherance of her other claims?

[00:18:39] Speaker 02:
Absolutely.

[00:18:40] Speaker 02:
I think the

[00:18:51] Speaker 02:
obtain fees, seek fees for work, perform solely in pursuit of individual claims.

[00:18:55] Speaker 02:
That would have done it.

[00:18:56] Speaker 02:
But where there's overlapping intertwined claims, where there's overlapping intertwined work, I don't believe you're here.

[00:19:21] Speaker 02:
um which seems like exactly what you're asking them to do so what what effect does that clause have on your reading well i guess i guess i would encourage your honor to interpret the contract against the drafter and that would be my friend on the other side here uh walmart drafted the 998 offer stop the

[00:19:54] Speaker 01:
do something.

[00:19:55] Speaker 01:
So how does your reading make in pursuit of the individual claims have any significance at all?

[00:20:04] Speaker 01:
So work performed solely in pursuit of individual claims is in one camp.

[00:20:10] Speaker 02:
Work performed solely in pursuit of class camp claims, which is the amount that we conceded and gave up during the district court briefing, is in another camp.

[00:20:18] Speaker 02:
And for overlapping claims is in the third camp.

[00:20:41] Speaker 02:
about intertwined claims.

[00:20:43] Speaker 02:
I think there you're talking about two different causes of actions where they arise from the same factual scenario.

[00:20:48] Speaker 02:
So you could sue for breach of contract on a set of facts, and based on the same facts, you could also sue, say, under the UCL.

[00:20:57] Speaker 02:
You win the breach of contract, but lose the UCL.

[00:20:59] Speaker 02:
They're intertwined.

[00:21:01] Speaker 02:
But you're trying to separate the class claims and the individual claims.

[00:21:04] Speaker 02:
I don't think you can do that.

[00:21:05] Speaker 02:
I think really what Hensley's really gist of it is,

[00:21:15] Speaker 02:
want injunctive relief, you didn't get the millions of dollars.

[00:21:18] Speaker 02:
You didn't get any injunctive relief.

[00:21:19] Speaker 02:
You got $22,000.

[00:21:20] Speaker 02:
So under Hensley, what we need to see is, what were your goals and what did you achieve?

[00:21:25] Speaker 02:
And I think that's what the district court should have done, assess in that way, rather than trying to separate individual claims and class claims, because it doesn't make any sense to do that.

[00:21:33] Speaker 02:
Well, I'm trying to back up to answer a question.

[00:21:40] Speaker 02:
Can I ask you to repeat the question?

[00:21:48] Speaker 02:
say you sue for breach of contract and you seal based on the same set of facts you win one lose other one well you're gonna you won one essentially come from the same set of facts I don't think you can do that with individual claims and class claims I think what Hensley says is you have to look at the level of success and here your purpose of this was to get class

[00:22:15] Speaker 02:
$22,000.

[00:22:17] Speaker 02:
So the court has to assess what the level of success was and determine the fees accordingly.

[00:22:24] Speaker 02:
I don't think you can split the individual class claims

[00:22:43] Speaker 02:
Those claims are intertwined, the work is overlapping, and it's hard to parse out what work was done on behalf of one claim, what on the path of the other.

[00:22:50] Speaker 02:
For purposes of the class versus the individual, we have several labor code violations.

[00:22:56] Speaker 02:
Six out of the seven survived, and that's what was settled on behalf of the individual.

[00:23:00] Speaker 02:
But those claims were all sought on behalf of the individual as well as on behalf of the class.

[00:23:05] Speaker 02:
So the depositions that were taken, the discovery that was done to seek out Walmart's policies, for example, on meal and

[00:23:14] Speaker ?:
They're related to both the individual claims and the class claims.

[00:23:17] Speaker 02:
I mean, based on your theory, then this is what, you know, if I were a smart plans lawyer, this is what I would do.

[00:23:22] Speaker 02:
I would seek class action.

[00:23:24] Speaker 02:
Obviously, that's the goal.

[00:23:26] Speaker 02:
If you fail, I would still pursue individual claims, spend a lot of time on it.

[00:23:30] Speaker 02:
I would with a jury and say you can award what you want, but you know what?

[00:23:33] Speaker 02:
We're just asking for $500.

[00:23:34] Speaker 02:
You have multi-billion dollar corporations.

[00:23:45] Speaker 02:
will probably be worth $500.

[00:23:46] Speaker 02:
Then you go to the court and say, look, I prevailed.

[00:23:49] Speaker 02:
I spent all this time on this individual claims, $400,000.

[00:23:52] Speaker 02:
I should get it.

[00:23:53] Speaker 02:
I mean, that creates some really perverse incentives.

[00:23:56] Speaker 02:
As opposed to looking at what was the original goal of your lawsuit, what

[00:24:17] Speaker 03:
discretion whatsoever in, I think, analyzing all of the things that you sort of just described for us in terms of, like, these are fees that were incurred in furtherance of all of these claims.

[00:24:32] Speaker 03:
Sort of, what's your argument that the district court didn't go through any analysis?

[00:24:36] Speaker 02:
So if I look at the ruling, the court's ruling, the court says that plaintiff, excuse me, yeah, it is.

[00:25:09] Speaker 02:
I looked at this.

[00:25:10] Speaker 02:
I determined it's reasonable.

[00:25:11] Speaker 02:
It didn't say, I'm not going to look at this.

[00:25:13] Speaker 02:
I'm not going to decide whether it's reasonable.

[00:25:14] Speaker 02:
I'm just going to.

[00:25:15] Speaker 03:
I don't feel any deference to that sort of very simple statement.

[00:25:21] Speaker 03:
I mean, the district court did not lay out sort of all of its reasoning.

[00:25:25] Speaker 03:
I mean, it concluded it's reasonable, but it hasn't really provided us with very much to look at.

[00:25:30] Speaker 03:
So are we to give that simple statement that the district court made deference?

[00:25:37] Speaker 02:
Well, I would argue yes.

[00:25:55] Speaker 02:
explanation, it suffices, and there's no deviation, frankly, here.

[00:25:59] Speaker 02:
It's exactly what we asked for.

[00:26:02] Speaker 01:
But in saying an analysis regarding apportionment is moot, the district court seems almost to have treated your reply as if it were a stipulation, which it wasn't.

[00:26:12] Speaker 01:
I mean, Walmart never had a chance to respond to it, and they're here raising various objections.

[00:26:31] Speaker 01:
It seems on the face of this order like the district court did not decide that you were right about that.

[00:26:37] Speaker 01:
It simply assumed that you were right about that.

[00:27:10] Speaker 02:
cut 281,800.

[00:28:20] Speaker 02:
reference that go through Walmart's policies and procedures on cell phone usage, on meals and restaurants.

[00:28:27] Speaker 02:
That's overlapping.

[00:28:27] Speaker 02:
That's discovery.

[00:28:29] Speaker 02:
That's work that needed to be done, both in pursuit of the individual claims, as well as in pursuit of the overlapping claims, and to address your honor's decisions.

[00:28:36] Speaker 02:
So you're talking to that amount, the one that you claim was wrong?

[00:28:38] Speaker 02:
Overlapping claims, yes, sir.

[00:28:40] Speaker 02:
Then, I mean, just to me, it doesn't make any sense that if you had pursued this just as an individual claim only, not a class action in the beginning.

[00:29:08] Speaker 02:
I'm saying Walmart is an individual.

[00:29:10] Speaker 02:
There's no way you would have spent $300,000 for that.

[00:29:13] Speaker 02:
But now you're talking about what she could prevail on versus what the attorney's fees would be.

[00:29:18] Speaker 02:
Yeah, but no, you wouldn't have spent $300,000 to get, you know, an individual claim.

[00:29:22] Speaker 02:
You would have accordingly, probably maybe not propounded as much discovery.

[00:29:35] Speaker ?:
And where there was overlapping work, it was overlapping work if it's not excluded by the contract.

[00:29:40] Speaker 02:
I mean, going back to something you asked earlier, I'm sorry, because there was a question and there was a question, I didn't get a response to it.

[00:29:45] Speaker 02:
It had to do with, oh, goodness, I'm sorry, give me one second.

[00:29:51] Speaker 02:
I haven't had time to put my tongue.

[00:29:55] Speaker 02:
Well, that's at least how I view Hensley as you look at the level of success.

[00:29:58] Speaker 02:
Thank you.

[00:30:18] Speaker 02:
our client prevails and obtains redress for violation through a settlement agreement, for violation of those labor code violations, that is, in fact, a public benefit that inners to the benefit of a large group of people.

[00:30:33] Speaker ?:
I would say that's the kind of injunctive relief that courts look at in addition to the monetary relief.

[00:30:37] Speaker 02:
And so instead of just focusing on, oh, there's only $22,000, I would implore the court to take into account that sort of consideration.

[00:31:10] Speaker 02:
998 offer and the reference to the 998 offer being the basis of the recovery.

[00:31:19] Speaker 02:
I do agree that the discussion about the standard refers only to Hensley, but there is reference to the 998.

[00:31:26] Speaker 02:
I do want to mention with regard to Hensley something that was said by my friend that again that

[00:32:08] Speaker 02:
and there's no essentially public benefit here at all.

[00:32:12] Speaker 02:
And I would just say that with regard to the statement by the court that the lodestar was reasonable, we don't know what the court is talking about and that even if the lodestar was reasonable, as the court said, that doesn't reflect what should be in the lodestar.

[00:32:40] Speaker 02:
reviewing the apportionment which had to be