Court of Appeal Sustains $336,800 Lodestar Plus 0.25 Multiplier.
Two high school freshmen sued the Poway School District, a principal, and an assistant principal, alleging various federal and state civil rights violations arising out of failure to quell peer sexual orientation harassment of an anti-gay nature. Following a jury trial, the two plaintiffs were awarded damages of $175,000 and $125,000, respectively. Plaintiffs then filed a motion for attorney’s fees based on Code of Civil Procedure section 1021.5 and 42 U.S.C. section 1988. The trial court granted the fee motion under section 1988, awarding fees of $421,357 and costs of $29,040.68. Both sides appealed, including plaintiffs’ cross-appeal of the denial of fees to them under Code of Civil Procedure section 1021.5.
In Donovan v Poway Unified School District, Case No. D047199 (4th Dist., Div. 1 Oct. 10, 2008) (certified for publication), the Court of Appeal decided that Title IX’s elements govern peer sexual orientation harassment claims under Education Code section 220 and that money damages are available in a private enforcement action—affirming the compensatory award in plaintiffs’ favor. It also affirmed the fee determination, deeming that plaintiffs were really challenging the award as too low given that either of the two statutes relied on by the trial court entitled them to recover attorney’s fees as prevailing parties.
Plaintiffs were awarded their requested lodestar of $336,800, based on 1,528 hours of legal work by their counsel (with the trial court only deducting 2 hours of work). Plaintiffs requested a 1.7 multiplier (for a total award of $572,560), but the trial court believed that a .25 multiplier (producing the actual $421,357 award) was appropriate.
In a nice review of lodestar enhancement principles, Justice Nares—writing for the 3-0 panel—observed that trial courts have broad discretion to increase or decrease the lodestar figure. (Ketchum v. Moses, 24 Cal.4th 1122, 1132 (2001); Nichols v. City of Taft, 155 Cal.App.4th 1233, 1240 (2007).) The Court of Appeal found that the trial court had thoughtfully applied the Ketchum lodestar adjustment factors—novelty/difficulty of questions; skill displayed; preclusion of other employment; and contingent risk of the award—in coming to a 0.25 multiplier. The merits and fee judgments were affirmed across the board.
This case illustrates how difficult it can be to surmount the abuse of discretion standard where careful findings in support of a fee award are made by the court below.