Thursday, August 8, 2013
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In Class Action Case Conferring $99 Million Value on Consumers…
Attorney With Disbelieved Time Records to Receive No Fee
Opinion by Justice Johnson Also Affirms $165,000 Sanction Imposed on Lawyer
By a MetNews Staff Writer
An attorney who sought nearly $25 million in fees based on her successful representation of plaintiffs in a class action was properly awarded nothing, the Court of Appeal for this district held yesterday.
Div. One, in an opinion by Justice Jeffrey Johnson, said that Los Angeles Superior Court Judge Anthony J. Mohr also was correct in imposing $165,000 in discovery sanctions on the attorney, Lori J. Sklar. She was admitted to the State Bar of California in 1994 and presently works out of her house in Minnetonka, Minnesota.
Sklar was lead counsel in an action against Toshiba America Information Systems, which culminated in a 2006 settlement, finally approved by the court the following year. Nearly one million consumers who had purchased a model Toshiba’s laptop computer—which, based on a defective cover, tended to shut down and lose data—received allowances with a value totaling about $99 million.
Time Records Questioned
Mohr was skeptical of Sklar’s claim as to the hours she put in. Toshiba balked that it showed that she worked on the case “nearly all day (sometimes as much as 16.75 hours), every day, seven days a week, including holidays, for some 22 months.”
The lawyer resisted Toshiba’s discovery attempts in connection with the fee request. It wanted the original records from her computer to see how they matched up with her hard-copy compilations, but it turned out Sklar had wiped them from her computer.
Mohr ordered that she permit an expert from Toshiba to try pull the erased files from her hard drive, but she refused access.
Johnson said that Sklar’s conduct “amply supports the sanctions award.”
He rejected her contention that the court had no right to order an inspection of her hard drive, declaring:
“[T]he sizeable nature of Sklar’s fee request and her resistance to the court’s inquiries regarding her seemingly excessive rates made the court’s inspection orders reasonable and necessary.”
Records Unreliable
In connection with the lawyer’s bid for fees, Johnson pointed to this finding by Mohr:
“Sklar’s billing records are, for purposes of calculating the lodestar, unusable. They contain troubling inconsistencies and omissions. There are numerous instances of what appear to be inaccurate and even contradictory billing entries. Moreover, the total number of hours claimed is excessive. The only conclusion that this court can reach is that the attorney’s records of the time actually spent cannot be fairly relied upon.”
Any award, Mohr said, would have to be based on “speculation and guesswork.” He said that the jumbled and contradictory records “deserve no weight.”
Johnson wrote:
“The trial court decided against Sklar because it did not believe her evidence of time spent in the class action litigation.
“Such a credibility determination is uniquely the province of the trial court. Just as we may not reweigh the evidence, we do not reassess credibility determinations….”
Not Punitive
Although Mohr is quoted as saying in his order that Sklar had “relinquished her entitlement to a fee” by virtue of her conduct, Johnson later in the opinion dismissed Sklar’s contention that the denial of attorney fees was a form of a sanction. Johnson responded:
“To the contrary, the fee order as described above shows the trial court’s careful consideration of the evidence….”
Mohr did award $179,600 for work done by Sklar’s staff, valued at $100 an hour. The Court of Appeal affirmed, except as to $2,400 of that amount based on a calculation error, and remanded for a recomputation.
The case is Ellis v. Toshiba American Information Services, Inc., B220286, B227078.
Sklar was represented by herself and by Harlan B. Watkins and John P. Girarde of the downtown Los Angeles office of Murphy, Pearson, Bradley & Feeney, for Objector and Appellant.
Dean J. Zipser, Benjamin G. Shatz, Carole E. Reagan and Adina L. Witzling of the West Los Angeles law firm of Manatt, Phelps & Phillips acted for Toshiba.
Sklar would not discuss the case.
“It is my policy not to comment in the media upon pending matters,” she said in an e-mail.
Copyright 2013, Metropolitan News Company