CALIFORNIA ATTORNEY'S FEES

Civil Rights: Court Of Appeal Affirms Lower Court’s Award of $6,659.15 To Plaintiff Who Had Limited Success And Recovered Only $5,000 In Disability Case

Second District, Division 6 Rejects Plaintiff’s Request for Award of $114,895 in Fees and $27,441.35 in Costs.

     Although the courts will award appropriate attorney’s fees to prevailing plaintiffs in civil rights disability cases, they will also discount for limited success and overinflated claims of complexity in litigation of the case.

     Molski v. Evergreen Dynasty Corp., Case No. B208988 (2d Dist., Div. 6 Sept. 14, 2009) (unpublished) illustrates this result in a recent “real time” case just decided upon appeal.

     There, disabled plaintiff sued for multiple violations under civil rights and other state statutes, many of which carried mandatory fee-shifting provisions in favor of prevailing plaintiffs. However, plaintiff only recovered mandatory minimum awards totaling $5,000 and lost several claims (including claims with punitive damage exposure) against the main company defendant (respondent on appeal). Also, another defendant settled for $14,950 before trial, with no apportionment between damages and attorney’s fees. Plaintiff failed to serve a costs memorandum, but did move to recoup $114,895.00 in fees and $27,441.35 in routine costs.

     The trial court awarded $6,659.15 in fees, using a reasonable lodestar ($66,591.50) but then reducing it by a tenth based on lack of difficulty, limited success and skill displayed, and the absence any evidence showing that plaintiff’s counsel had to forego other work. Plaintiff (or likely his attorney), not being a “happy camper,” appealed.

Private Attorney General Statute: Trial Court Properly Awarded Plaintiffs $336,350 In Fees Rather Than Requested $1.49 Million (And Correctly Denied 2.0 Multiplier)

First District, Division 5 Determines Trial Court Properly Applied Serrano III Factors.

     Even under fee-shifting, public interest statutes, our California Supreme Court in Serrano v. Priest, 20 Cal.3d 255, 49 (1977) (Serrano III) mandated that multiple factors be used to increase or decrease a lodestar figure requested by victorious litigants. In the next case we discuss, the lodestar was decreased based on various factors. The disgruntled plaintiffs, who requested an award of $1.49 million plus a 2.0 multiplier after winning a publicized high school student editorial battle with a school district, were only awarded $336,350 in attorney’s fees under Code of Civil Procedure section 1021.5, with no one contesting student’s entitlement to fees. (Plaintiffs were represented by Pacific Legal Foundation, an entity receiving private support for purposes of bringing public interest lawsuits.) Plaintiffs appealed the trial court’s lodestar decreases under Serrano III. How did they do?

     Plaintiffs overall lost in Smith v. Novato Unified School District, Case No. A122105 (1^st Dist., Div. 5 May 28, 2009) (unpublished). The appellate panel found the lower court did not commit error in reducing the lodestar ($672,700) for (1) time spent on successful claims, (2) various Serrano III factors, and (3) substantial padding in the form of inefficient or duplicative efforts by multiple attorneys involved on plaintiffs’ behalf.

FEHA: $1,059,350.60 Fee Award, Based on 1.5 Multiplier, Affirmed On Appeal

Use of Multiplier Appropriate Even Where Substantial Punitive Damages Also Were Awarded.

     Bimbo Bakeries, known for selling such brands of Orowheat and Entemann’s, suffered an adverse jury verdict based on plaintiff’s complaint for wrongful termination, gender and pregnancy discrimination, and violation of related California statutes. The jury awarded plaintiff $340,700 in compensatory damages and also assessed $2 million in punitive damages against Bimbo Bakeries. Because section 12965(b) of the Fair Employment and Housing Act (FEHA) permits the trial court to award attorney’s fees and costs to a prevailing party, the lower court also awarded plaintiff fees in the amount of $1,059,350.60 using a 1.5 multiplier. Bimbo Bakeries appealed use of the multiplier.

     The First District, Division 4, in Lopez v. Bimbo Bakeries USA, Inc., Case Nos. A119263 & A119720 (Apr. 23, 2009) (unpublished), rejected defendant’s arguments relating to the use of the multiplier.

           1939 World's Fair. Wonder Bakery.  Library of Congress.