CALIFORNIA ATTORNEY'S FEES

In The News . . . . Goodman, Chavez, and Petaluma Fee Expenditures

 

Goodman Forecast to Curtain Attorney’s Fees

     In a March 15, 2010 article “Curtailing Attorneys’ Fees” by Harry I. Price (a Los Altos real estate attorney) published in The Recorder, Mr. Price predicts that Goodman v. Lozano—a recent California Supreme Court decision examined in our February 5, 2010 post—“will change how litigants sift and weigh risks before going to trial, cropping certain cases from trial calendars.” He believes that the result may encourage settlements. (BLOG UNDERVIEW—Mr. Price recognizes that many litigation cases are ones where “the tail is wagging the dog,” a reference to where attorney’s fees can many times eclipse the amount of actual damages such that fee recovery determines the winner or loser. In doing so, he observes that “tail docking is a medical procedure: the amputation of part of the tail of the dog.” Co-contributor Mike’s dog Riffle says “ouch.”)

Chavez Hailed As One of the Most Significant Employment Cases of 2010

     Lonny Zilberman (a San Diego employment lawyer), in a March 12, 2010 article “The Days of ‘Big Scores’ for Fees Are Over” published in The Los Angeles Daily Journal, fetes Chavez v. City of Los Angeles—another state supreme court decision surveyed in our January 14, 2010 post—as possibly being “the most significant employment decision of 2010.” Mr. Zilberman notes that after Chavez, fewer plaintiffs’ attorneys and mediators can use the argument “if plaintiff recovers one dollar, you have to pay all of the attorney’s fees,” giving employers some leverage in negotiating a settlement where the particular case has little or no merit. (BLOG FAVORITE QUOTE—The author says that Chavez reminded him of this passage from Dickens’ Bleak House: “This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.”)

Petaluma’s 2009 Fee Expenditures Went Up In the Last 13 Months

     As reported by Philip Riley in a March 12, 2010 post on the Petaluma Argus-Courier website, the City of Petaluma was billed $600,794 in attorney’s fees, experts’ fees, and related expenses from the start of 2009 through the end of January 2010. In the prior 13-month period, $549,540 was billed to the City. Apparently, the most expensive recent issue was the proposed November ballot measure to reduce wastewater rates, an issue costing the City $69,000 to respond to in the recent 13-month period.

Ralph Act: $456,705 Fee Award To Plaintiff Affirmed On Appeal

Both Sides Appealed the Fee Award, But The Trial Court’s Award Stood Firm.

     The Ralph Act (Civil Code, § 51.7) provides that all persons within California’s jurisdiction have the right to be free from violence or intimidation because of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation with respect to business establishments of every kind. Civil Code section 52(b)(3) allows for a discretionary award of attorney’s fees to parties denying rights provided by section 51.7. The next decision focused on this fee-shifting provision.

     The facts in Benham v. S&J Security and Investigation, Inc., Case No. B207420 (2d Dist., Div. 5 Mar. 8, 2010) (unpublished), are not pretty. Boiled down, a female and her companion apparently were falsely imprisoned by a Walgreen security company over apparently stealing some weight loss formula drinks, although sexual innuendos were allegedly made by some of the security guards against the female. The result was a fairly substantial verdict for the female plaintiff, augmented by a trial court award of fees in the amount of $456,750 under Civil Code section 52(b)(3).

     Neither side was pleased with the fee award, filing respective appeals.

FEHA Award: Court Of Appeal Affirms $84,000 Fee Award Out Of Requested $686,290.50

Plaintiff Only Won $55,000 Jury Verdict Plus $18,000 in Costs.

     Although awards to winning plaintiffs under the California Fair Employment and Housing Act are encouraged, they must be reasonable in amount. Otherwise, the trial court has broad discretion to deny them in entirety or substantially chop them down from their higher requests. The next case is an excellent illustration of a situation where an appellate court affirmed a lower court’s determination that a large reduction was in order before awarding fees to a FEHA plaintiff’s attorneys.

     Jimenez v. Too Fast, Inc., Case No. B212231 (2d Dist., Div. 1 Feb. 26, 2010) (unpublished) involved a situation where plaintiff suing under FEHA obtained a jury verdict of $55,000 plus costs of $18,000 even though seeking damages in the $275,000-$775,000 range. Plaintiff’s two set of attorneys sought $686,290.50 in fees, based on a claimed 872.8 total hours spent by the two attorneys and a paralegal (factoring in a 1.75 multiplier, based on attorney hourly rates of $475/$500 and the paralegal’s hourly rate of $115). One of the attorneys requested $42,560 (based on 89.6 hours) for preparing the fee motion.

     The trial court, who felt that the jury could have defensed the matter, believed the fee request was unreasonable and inflated in nature, awarding plaintiff $84,000 in fees based on 240 hours multiplied by $350, rejecting a multiplier, and determining that both attorneys would have to divide up respective fees from the total amount awarded. The lower court found the trial did not take even 20 hours of jury time, there were no expert witnesses, and the case was not complicated.

     The Second District, Division 1 affirmed.

     Only hours reasonably spent are subject to compensation under the FEHA fee-shifting statute. (Horsford v. Board of Trustees of California State University, 132 Cal.App.4^th 359, 394 (2005).) The recent state supreme court case of Chavez v. City of Los Angeles, 47 Cal.4^th 970, 990-991 (2010) recognized that a trial court does not abuse its discretion in denying fees altogether in a FEHA case where the fee request is unreasonably inflated. In Jimenez, the trial court obviously felt the fee request was unreasonably inflated and indicated it was being generous in awarding what it did. Given that the fees could have been denied altogether, the substantial reduction was not an abuse of discretion under the circumstances.

Civil Rights: EEOC Stung With $4,560,285.11 Fee/Costs Award In Title VII Section Suit Found To Be Groundless By Iowa U.S. District Judge

Court Discusses Substantive Fee Shifting Statute, Lodestar Factors, and Non-Cost Expense Reimbursement Issues in Recent Decision.

      EEOC v. Boot, Case No. 07-CV-95-LLR (N.D. Iowa Feb. 9, 2010 Order), is an unusual decision where a United States district judge awarded $4,560,285.11 in fees and costs (broken down as $4,004,371.65 in fees, $463,071.25 in “non-cost” out-of-pocket expenses also awardable as fees, and $92,842.21 in routine costs under 28 U.S.C. § 1920) against the EEOC and in favor of CRST Van Expedited, Inc. in a Title VII sexual discrimination suit brought on behalf of 270 female drivers. It contains some very nice discussions of the fee shifting statute allowing such an award, application of lodestar factors, and items that are awardable as fees even though they are out-of-pocket expenses not recoverable as § 1920 routinely taxable costs.

     Here are the highlights from this decision:

• Fee shifting statute. 42 U.S.C. 2000e-5(k) allows a district court, in its discretion, to assess attorney’s fees against the EEOC in this type of case if the prevailing defendant shows the action was frivolous, unreasonable, groundless or vexatious in nature. (Marquardt v. Lodge 837, 26 F.3d 842, 849 (8^th Cir. 1994).) This standard was met because the district judge was convinced that the EEOC did not investigate before filing the complaint on behalf of 67 drivers (having no reasonable basis for the claims).
• Taxing costs for both stenographic and videotaped depositions. Under the new version of 28 U.S.C. § 1920(2), the district judge decided that--based on use of disjunctive “or” language—costs should be awarded only for stenographic or videotaped depositions, but not for both. The district court did note that there were decisions the other way, but they did not consider the current version of § 1920(2).
• Lodestar/application of national rates to the Title VII dispute. The district judge found that the case did not involve a specialized area of the law so as to justify Jenner & Block’s hourly rates that were way higher than the rates charged by defendant’s local counsel. The court lowered J & B rates to the local rates in setting the lodestar.
• Reasonable “non-cost” expenses recoverable as attorney’s fees. The district judge found that reasonable out-of-pocket expenses not within the § 1920 costs ambit could be recoverable as attorney’s fees. (Pinkham v. Camex, Inc., 84 F.3d 292, 294-295 (8^th Cir. 1996).) So, for example, the court did allow recovery of such items as long distance phone expenses, messenger/overnight express expenses, investigator fees, expert witness fees, postage, travel expenses, and printing/copying costs under the fee rubric. However, the district judge did deny recovery of most mock jury fees as not being necessary for the litigation, although noting that they have been awarded in other instances. (See, e.g., Confederated Tribes of Siletz Indians of Or. v. Weyerhaeuser Co., 2003 WL 23715982 at *8 (D.Or. Oct. 27, 2003).) The court also denied computer legal research, finding that item should have been factored into the attorneys’ hourly rates. Demonstrative trial exhibit expenses were rejected based on faulty documentation.

     For more information on this decision as well as a PDF link to the decision itself, see Martha Neil’s article “EEOC Hit with $4.5M Legal Fee Award In Losing ‘Pattern & Practice’ Case, Plans Appeal,” posted February 17, 2010 on the American Bar Association website (an article written for the ABA Journal).

Civil Rights: Appellate Court Affirms Slashed FEHA Prevailing Party Fee Award Where Plaintiff’s Success Limited After Prior Appeal and Attorney Fee Substantiation Was Unreliable

 

Plaintiff Appeals $500,000-Plus Fee Award, But Gets Nothing Better.

     Mnaskanian v. 21st Century Insurance, Case No. B211757 (2d Dist., Div. 1 Feb. 11, 2010) (unpublished) shows that both trial and appellate courts will apply lodestar analysis in FEHA fee award situations, discounting for limited success and unreliable attorney fee substantiation when awarding “bottom line” fees to a prevailing plaintiff.

California Disabled Persons Act: State Appellate Decision Finds That ADA Does Not Preempt, So Prevailing Defendant Entitled To Fee Award Without Showing Action Was Frivolous, Unreasonable, Or Groundless

First District, Division 4 Disagrees with Ninth Circuit’s Hubbard Decisions.

     In our July 3, 2008 and January 12, 2009 posts, we discussed the Ninth Circuit’s Hubbard decisions (Hubbard v. SoBreck, LLC, 531 F.2d 983 (9^th Cir. 2008) and Hubbard v. SoBreck, LLC, 554 F.3d 742 (9^th Cir. 2009)), which held that a mandatory award of fees to a prevailing under the California Disabled Persons Act (Civil Code § 55) was preempted by the American with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) because Civil Code section 55 allowed a defense fee award without the ADA’s showing that plaintiff’s action was “frivolous, unreasonable, or groundless.”

     Now, a California intermediate decision—Jankey v. Lee, Case No. A123006 (1^st Dist., Div. 4 Feb. 5, 2010) (certified for partial publication)—has expressly disagreed with Hubbard II’s preemption finding, concluding that attorney’s fees are awardable to a prevailing defendant under section 55 without the more elevated ADA entitlement showing.

     In reaching this result, the state appellate court primarily found that (1) nothing in the ADA imposed uniform standards for complementary state law remedies (slip opn., p. 10), and (2) the California Legislature’s imposition of a two-way guaranteed fee provision in section 55 makes sense in light of the fact that the CDPA affords plaintiffs greater rights than the ADA (CDPA allows both monetary and injunctive relief, while ADA provides for only injunctive relief) (slip opn., p. 12.)

     That said and done, the $118,458 (out of a requested $129,264) fee award was affirmed. In an unpublished part of the decision, plaintiff challenged the reasonableness of the award. However, his challenges did not persuade the appellate court. Contrary to his argument, detailed billing records are not required to affirm a fee award, with attorney testimony on the number of hours expended being sufficient in the right circumstances. (Martino v. Denevi, 182 Cal.App.3d 553, 559 (1986).) Attorneys’ claimed hourly rates—with the lead attorney asking for $165—as well as distribution of work (lead attorney worked 76% of the claimed time)—were found reasonable given the low sought-after hourly rate for the San Francisco legal community and the relative complexity of the case.

President and Mrs. Coolidge with their military aides, greeting two veterans in wheelchairs.

Civil Rights: Nominal Damages In Civil Rights Case Involving Novel Issue and Deterrence Justifies $136,687.35 Fee Recovery Under Section 1983

Ninth Circuit Affirms District Judge’s Fee Award In One Dollar Award Case.

     The circumstances of a case often dictate its result. This is the hallmark of jurisprudence, highlighted in the next fee case that we review.

     In Mahach-Watkins v. Depee, Case No. 08-15694 (9^th Cir. Feb. 1, 2010) (for publication), estate of a decedent won a nominal damages award of one dollar on a 42 U.S.C. § 1983 claim, although suffering summary judgment on many, many claims and another nominal one dollar award on a wrongful death claim.

     The sad facts of the case involved a CHP Officer who shot and killed John Watkins during a struggle. Mr. Watkins was unemployed and had a history of schizophrenia, accompanied by drug and alcohol abuse. Mr. Watkins’ mother brought civil rights claims premised on the use of excessive police force, and also brought conspiracy claims.

     The mother sought to recover almost $700,000 in attorney’s fees under the mandatory civil rights fee shifting provision (§ 1988). The district judge did award $136,687.35 in fees based on the limited success achieved in the civil rights case. Defendant appealed saying no fees were justified, and mother appealed that the fee reduction was unfair.

     Result—a tie; fee award affirmed.

     Defendant claimed that the nominal award meant no fees should be awarded.

     Not so, under the particular facts at play, said the Ninth Circuit.

     Three factors must be considered in determining whether a civil rights plaintiff succeeded in some way beyond the judgment for nominal damages: (1) the delta between the amount recovered and damages sought; (2) the significant legal issue in play; and (3) plaintiff’s accomplishment of some public goal. (Cummings v. Connell, 402 F.3d 936, 947 (9^th Cir. 2005).)

     The first factor weighed against a fee award, despite the fact that the availability of a compensatory award (even nominal) in favor of a deceased’s estate was an unsettled legal issue. The second factor tilted heavily in favor of a fee award, given that the state should not sanction excessive force resulting in death by a police officer. The third factor also weighed in plaintiff’s favor, with the district judge finding that the verdict might be a deterrent to the policeman’s actions in the future.

     Mother argued the fee award was too small. She did not file a cross-appeal, which meant the appellate court had discretion to entertain the argument, which it did. (Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9^th Cir. 2001).) However, the Ninth Circuit found the fee reduction was no abuse of discretion.

Civil Rights: CCP § 1038 Does Not Apply To Unsuccessful 1983 Civil Rights Claims

First District, Division 4 So Decides, Also Denying Fees on a Different Theory Raised After Losing the § 1038 Request—Counseling to Seek Fees on Multiple Grounds the First Time Around.

     State entities eventually defended against a civil rights claim brought by a peace officer organization under 42 U.S.C. § 1983. State entities then moved to recover $370,529.29 in attorney’s fees under Code of Civil Procedure section 1038, which permits trial courts to award defendants their costs and fees in defending against unmeritorious and frivolous claims brought under the California Tort Claims Act. That request was denied, so state entities made a second request under 42 U.S.C. § 1988, which allows fee recovery in civil rights cases to prevailing defendants where plaintiff’s action was frivolous, unreasonable, or without foundation. That request, too, was denied. State entities appealed.

     Their appeals were unsuccessful.

     In California Correctional Peace Officers Assn. v. Virga, Case No. A123989 (1^st Dist., Div. 4 Jan. 15, 2010) (certified for publication), the appellate decision decided: (1) a section 1983 civil rights action is not a “civil proceeding under the California Tort Claims Act” for purposes of a fee award under section 1038; and (2) prevailing defendants were obligated to put forth all of their reasons for an award of attorney’s fees when they made their initial request, not attempting to use a later motion for renewal as a device to get a “second bite at the apple.” In doing so, the Court of Appeal has a nice discussion on motions for reconsideration and motions for renewal that is must reading for all litigators who contemplate the filing of such motions.

Civil Rights: Student Obtaining Eligibility Category Determination Under IDEA Entitled to Attorney’s Fees Recovery

Ninth Circuit Also Determines that Student’s Representation By Paternal Grandmother Did Not Disqualify Him From Seeking Fees.

     The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B) allows lower courts to award reasonable attorney’s fees as part of the costs to a prevailing party who is the parent of a child with a disability (given that the parents are generally the plaintiffs in these cases). Also, the Ninth Circuit has adopted a bright line rule prohibiting IDEA fees for attorney-parents providing legal services for their own child in IDEA proceedings. (Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1090-91 (9^th Cir. 2006).) This statutory fee grant and bright line rule were at issue in the next case we review.

     In Weissburg v. Lancaster School Dist., Case No. 08-55660 (9^th Cir. Jan. 14, 2010) (for publication), the Ninth Circuit dealt with a situation where parents successfully obtained a ruling on behalf of their son that he was entitled to placement in a school with a teacher to teach students with the primary disabilities of mental retardation and autism, even though he did obtain a free and appropriate public education for mental retardation. Son was represented by his paternal grandmother in the dispute, who moved for an award of fees under IDEA. The district judge denied them, finding that the change in disability classification did not change the legal relationship between Edward and the school district.

     The fee denial was reversed on appeal.

     The Ninth Circuit concluded that the change in eligibility category did materially alter the legal relationship between the parties because it entitled Edward to placement in a classroom with a teacher qualified to teach both mental retardation and autism. Beyond that, it found that the representation by the paternal grandmother did not run afoul of the Ford bright line rule, because other relatives are not as uniquely involved as parents under IDEA (who are considered the enforcers of their children’s education rights).

Civil Rights: $9,649 Fee Award Affirmed Where Plaintiffs’ Civil Rights Claims Found To Be Frivolous, Unreasonable Or Without Foundation

1^st District, Division 4 Sustains Award in Entirety.

     Under 42 U.S.C. § 1988(b), a trial court can award reasonable attorney’s fees to a prevailing defendant if the court finds the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in bad faith. (County of Butte v. Bach, 172 Cal.App.3d 848, 869 (1985).) That section was at issue in an attorney’s fees award of $9,649 against plaintiffs under review in Patel v. Jakela, Inc., Case No. A121611 (1^st Dist., Div. 4 Dec. 31, 2009) (unpublished).

     Plaintiffs had agreed to a motel demolition order with the City of Santa Rosa in a lawsuit, but failed to comply with the demolition terms. City obtained an order to show cause regarding contempt, with the trial court ruling that the demolition was to be accomplished, either by plaintiffs or the City. City hired a demolition contractor, which in turn hired an asbestos abatement subcontractor, both of which completed the demolition. City proceeded with litigation against the plaintiffs, who then filed a civil rights cross-complaint against the City, numerous City officials/employees, and the asbestos abatement subcontractor. Subcontractor won a successful motion to strike the cross-complaint because no leave was obtained from court (as well as raising that civil rights claims could not be raised against a private entity simply hired by a public entity to do some work). Later, subcontractor filed a motion for fees under section 1988(b), which was granted in the sum of $9,649.

DEMOLITION LAS VEGAS STYLE

   

      Plaintiffs appealed, but lost.

     The trial court properly did consider whether the cross-complaint had foundation—showing it was filed without leave and against private defendants not subject to civil rights exposure. Not much more to explore as why the fee award was justified under section 1988(b). Plaintiffs argued that they were entitled to a CCP § 128.7 safe harbor “warning shot,” but this contention was dismissed in light of the fact that 42 U.S.C. § 1988(b) allows for a fee recovery not tethered to sanctions procedural requirements. Finally, the fees were not excessive ($9,469, you bet), and subcontractor was also entitled to fees on appeal to be determined by the trial court on remand.

Civil Rights: ADA Total Fee Recovery Denial Reversed Where Trial Court Incorrectly Concluded That Plaintiff’s Fee-Driven Recovery Required Altogether Fee Denial

Fourth District, Division 3 Reverses and Remands, But Does Allow Consideration of How Fee-Driven Motivation Impacts Reasonableness of Fee Request.

     In the civil rights area, the American Disabilities Act (ADA) does have a mandatory fee-shifting provision in favor of prevailing plaintiffs, although it has the important caveat that only reasonable fees should be awarded. In the next case, the trial court denied fees altogether because it felt that the whole suit was motivated by fees rather than to really remediate a handicap parking violation. That altogether fee denial was reversed, although the motivation factor was not excised as a consideration on the reasonableness of plaintiff’s fee request.

     Plaintiff, a disabled, wheelchair-bound individual, sued because a restaurant was apparently one space short of complying with ADA handicap space requirements. Plaintiff won a summary judgment for compliance and $1,000. Plaintiff then sought attorney’s and expert fees of a little under $22,000, with the defendant only arguing as to the reasonableness of the fees request. However, the trial court did go farther, denying fees altogether based on the ambiguity of the compliance order and mainly on its perception that the sole purpose of the action was to “generate fees.”

     The Fourth District, Division 3, in a 3-0 panel decision authored by Presiding Justice Sills, reversed in Miller v. Neal, Case No. G041424 (4^th Dist., Div. 3 Oct. 29, 2009) (unpublished).

     Reason for the reversal? The appellate court could find no authority indicating that fees should be denied across the board simply based on the motivation of plaintiff or plaintiff’s counsel in bringing the suit. The panel remanded the case for reconsideration of the fee requests, although it did not prevent the lower court from considering (one way or the other) the motivation factor in the calculus of determining the reasonableness of the requested fees.

Fee Substantiation: Plaintiff’s Declaration About Hourly Rates And Small Law Firm Survey Deemed Sufficient Substantiation For Fee Request, Especially Given No Challenge By The Defense

Third District Also Addresses Clerical Time and Multiplier Issues.

     Plaintiff won a jury verdict of $16,536 on a failure to accommodate discrimination claim. Under the fee-shifting provisions of the Fair Employment and Housing Act (FEHA; Government Code section 12965(b)), the trial court awarded plaintiff $189,503.40 in fees, after lodestar deductions for clerical tasks, duplicative entries, and excessive travel time and then enhanced by a 1.5 multiplier (out of a requested $171,981 lodestar and requested 2.0 multiplier). Defendant Club Fresh was unhappy, appealing the fee award.

     The Third District affirmed in Maldonado v. Club Fresh, Case No. C055954 (3d Dist. Oct. 9, 2009) (unpublished).

     Club Fresh argued that plaintiff’s declaration about reasonableness of hourly rates was incompetent to prove reasonableness of the fees. Actually, this was wrong—a declaration of plaintiff’s counsel is sufficient evidence of the market rates charged in the legal community, especially where no evidence is presented to the contrary. (Davis v. City of San Diego, 106 Cal.App.4^th 893, 902-904 (2003); Graciano v. Robinson Ford Sales, Inc., 144 Cal.App.4^th 140, 154 (2006); MBNA America Bank, N.A. v. Gorman, 147 Cal.App.4^th Supp. 1, 13 (2006); but see Nichols v. City of Taft, 155 Cal.App.4^th 1233, 1237-1238 (2003) [different result where defense presented opposition declarations on local community legal rates].) Here, Club Fresh presented no contrary proof. Also, the appellate panel did note that there was corroboration from a CPA expert, who used information from Altman & Weil, Inc., The Small Law Firm Economic Survey (2006) and International Paralegal Management Association and Altman Weil, Inc., Annual Compensation Survey for Paralegals/Legal Assistants and Managers (2006).

     Defendant next attacked the allowance for clerical services. The appellate court found that discounts had been made for attorney clerical work, but that clerical services essential to legal representation and ordinarily billed in the legal marketplace may be included in a fee award. (Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914, 951 (1985).)

     Club Fresh attacked the 1.5 multiplier granted by the trial court in the fee award. Although attacking the lower court’s failure to articulate a reason for the multiplier, the appellate panel observed that the trial court is not required to issue a statement of decision with regard to a fee award. The multiplier was justified based on the contingency risk to the case, the complexity of the issues, and the need to encourage private attorneys to litigate these types of cases.

     Club Fresh was shocked at the size of the award as compared to the modest jury verdict. However, the Court of Appeal countered that California does not impose a rule of proportionality on fee awards and has rejected federal rules that limit fee enhancements generally and exclude consideration of the contingent nature of the payment. (Ketchum v. Moses, 24 Cal.4^th 1122, 1140-1141 (2001) [one of our Leading Cases].)

     However, the appellate court denied plaintiff’s requests for an award of fees on appeal, finding it did not go the merits of her underlying claims but only the fee award itself.

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.

Civil Rights: "The Big Chill" -- Victorious Defendants Seek Attorney's Fees from Nonprevailing Plaintiffs

 

But Outcome in Three Recent Cases Sends Only a Little Chill, as California Courts Rebuff Defendants' Attempts.

     Dan Levine reports in The Recorder on three recent efforts by successful defendants in civil rights cases to collect attorney's fees from losing plaintiffs. 

     Plaintiffs who sued the Metropolitan Transportation Commission  challenging San Francisco Bay Area transit policies earlier this year as racist lost their case.  The MTA then requested Magistrate Judge Elizabeth Laporte to award up to $1.5 M in attorney's fees -- a request that was eventually denied.

     On May 11, 2009, we reported to our readers that we were quoted in The Daily Journal about a case in which test takers/losing plaintiffs faced the potential prospect of an award of attorney's fees.  However, on August 10, 2009, Judge Steven Brick of Alameda County denied the Association of American Medical Colleges' motion to recover attorney's fees from losing plaintiffs who had alleged they didn't receive proper accommodation when taking the MCAT test.

     And earlier in 2009, Chevron sought to recover $500 K in costs from Nigerian villagers who lost their wrongful death claims.  USDC Judge Susan Illston Chevron's request.

     How many large awards of fees or costs would it take to send a "big chill" on civil rights cases?

     BLAWG COMMENT.  So far, non--prevailing plaintiffs seem to be substantially more at risk of incurring an award of fees or costs in Unruh Act cases, because the Unruh Act has not engrafted a "frivolousness" requirement for recovery of attorney's fees.  See our July 8, 2008 post on Molski v. Arciero Wine Group, 164 Cal. App. 4th 786 (2008).

Civil Rights: Rejected Informal Settlement Offers Can Be Used As An Indicator Of Success For Purposes of Calculating Attorney’s Fees Lodestar

Third Circuit Court of Appeals So Holds Under 42 U.S. C. Section 1988; California State Court Decisions Split In Analogous Areas, But Ninth Circuit Disagrees.

     On July 23, 2009, the Third Circuit Court of Appeals, in Lohman v. Duryea Borough, __ F.3d __, 2009 WL 2183056 (3d Cir. 2009), affirmed a district judge’s decision to award a successful plaintiff’s attorneys only $34,251.77 in attorney’s fees/costs ($30,000 being fees) out of a requested $112,883.73 after the plaintiff recovered only $12,205 in lost wages and nominal damages following a jury trial. Employer defendant made three informal settlement offers after trial commenced, including one for $75,000, all of which were rejected. In setting the lodestar for purposes of awarding fees under the germane civil rights fee-shifting statute (42 U.S.C. section 1988), the district judge did consider the settlement offers as an indicator of the success of plaintiff in terms of what employee ultimately recovered.

     The Third Circuit affirmed the district judge’s fees/costs award, finding that consideration of the prior settlement offers was one factor that was probative on the “indicator of success” lodestar factor, following the lead of EMI Catalogue Partnership v. CBS/Fox Co., 1996 WL 280813 (S.D.N.Y. May 24, 1996) (a copyright case). The federal appeals court also found that a district judge could properly reject consideration of such offers if the negotiations occurred at an early stage of proceedings (before discovery) or if they were not a true measure of what a party was truly seeking in damages. The Third Circuit agreed with the district judge’s analysis that, even under a contingency fee arrangement of 33% or 40%, plaintiff would have obtained much more if the $75,000 offer had been successful and that plaintiff’s attorney would have received either $25,000 or $30,000 from acceptance of such an offer.

     The Third Circuit also distinguished or found that other frequently cited cases in the areas did not categorically reject consideration of the informal settlement offers in the lodestar analysis. See Ortiz v. Regan, 980 F.2d 138, 140-141 (2d Cir. 1992); Clark v. Sims, 28 F.3d 420 (4^th Cir. 1994); Cooper v. State of Utah, 894 F.2d 1169 (10^th Cir. 1990). For another case that came to a similar result of the Third Circuit in Lohman, see Moriarty v. Svec, 233 F.3d 955, 967 (7^th Cir. 2000) (a “substantial settlement offer,” even if the offer is noncompliant with F.R.Civ. P. 68, can cut off fees incurred after the date of the offer). The Third Circuit also did not find that the consideration of the prior settlement offers was improper even when defendant’s offers were informal rather than made under Rule 68.

     So how do California state decisions weigh in on this issue? They are split. Although occurring primarily in analogous substantive areas, one says a fee reduction is improper (given the existence of California Code of Civil Procedure section 998, Rule 68’s state analog), while another did allow for consideration of rejected informal offers. Compare Greene v. Dillingham Construction N.A., Inc., 101 Cal.App.4^th 418, 425-426 (2002) [FEHA case; fee request should not be reduced for rejecting informal offer] with Meister v. Regents of University of California, 67 Cal.App.4^th 437, 449-450 (1998) [Information Practices Act of 1977 case; plaintiffs were “penalized” for rejection of reasonable informal offers]. A recent decision, City of Novato v. MCCE Development, 2009 WL 1695943 at *23-24 (lst Dist. June 17, 2009) [reviewed in our June 18, 2009 post], noted the conflict, but did not have to resolve it because the settlement at issue had primarily non-monetary components that made it difficult to value for lodestar reduction purposes. So, stay tuned with us, because there will be more jurisprudence on this issue at the California state level.

     But what about the Ninth Circuit Court of Appeals? We do not think they would follow Lohman. In a case involving an award of contractual attorney’s fees under California Civil Code section 1717, the Ninth Circuit in Berkla v. Corel Corp., 302 F.3d 909, 922 (9^th Cir. 2002) found that informal settlement offers were not probative on the issue—adhering to the view that a Rule 68 offer was needed to shift the “balance of power.” Why do we say that? Berkla expressly disagreed with Meister, finding it was further suspect by relying on Marek v. Chesny, 473 U.S. 1 (1985), a case evaluating success when a Rule 68 offer was made. Berkla was also recently followed by a district court in Gregor Leasing Corp. v. Potrero, 2008 WL 4830751 at *4 (N.D.Cal. Nov. 6, 2008) (Conti, D. J.).

998 Offers, CA Tort Claims and Civil Rights Fees: Second District, Division 1 Faces A Potpourri Of Legal Issues On A Hefty ADA Civil Rights Fee Award

Unpublished Decision Faces Some Interesting Fee-Shifting Issues In ADA Case.

     Many of the California intermediate appellate unpublished decisions we examine have some very interesting legal issues for jurists to grapple with and resolve. The next one is no exception, containing some gnarly fee-shifting issues that involve Code of Civil Procedure section 998 (pretrial offer statute), Code of Civil Procedure section 1038 (fees shifting under the California Tort Claims Act), fee shifting under 42 U.S.C. section 1988 (federal civil rights act), and fee shifting under the Americans with Disabilities Act. So, buckle up and here we go on this one: Suarez v. County of Los Angeles, Case No. B210823 (2d Dist., Div. 1 June 19, 2009) (unpublished).

     Suarez (not Betty, of “Ugly Betty” fame) involved civil rights, ADA, and California Torts Claim Act claims brought by a deaf person against Los Angeles County for mistakenly keeping him in jail for 8 days without the assistance of a sign-language interpreter to demonstrate he was wrongfully jailed. After his release, plaintiff sued and won a jury verdict under the ADA claim, a verdict under which he was awarded damages of $5,000. Earlier, County had served Mr. Suarez with a CCP section 998 offer for $8,000, together with a caveat that reasonable fees were to be determined by the trial court in an amount not to exceed $12,000—an offer rejected by Suarez before the jury trial occurred. Mr. Suarez moved to recover $193,582.50 in fees and $9,095.12 in costs under the ADA, while County moved to recoup fees of $113,512.50 and costs of $11,072.26 based on obtaining summary adjudication of the California Tort Claims Act claim and the civil rights violation. County also sought recovery of $12,164 in routine costs by reason of its 998 offer.

     The trial court determined the 998 offer was facially void, ruled that County was not entitled to fees for winning the Tort Claims Act claim, did not address the County’s fee request under the federal civil rights statute, granted Mr. Suarez’s motion to strike County’s costs memorandum, awarded plaintiff his routine costs, and finally awarded Mr. Suarez attorney’s fees in the sum of $193,582.50. County appealed.

Attorney’s Fees In The News …. Sergeant Neil Harvey Obtains More Than $700,000 Award Of Attorney’s Fees

 

This Comes On Top of $1.2 Million Jury Verdict.

     Newport Beach, California police Sergeant Neil Harvey sued for sexual discrimination in a case that has likely polarized the Newport Beach Police Department and generated lots of press coverage. He won a $1.2 million jury verdict in March 2009, stemming from his claim that he was denied promotions because of false rumors about his sexuality in an already homophobic environment, according to his lead attorney John Girardi, as reported in The Orange County Register.

     Now, the trial judge in that case has also awarded Mr. Harvey additional attorney’s fees of $706,755.

     For more on this story, see Ellyn Pak and Jeff Overley’s article “Attorneys awarded $700,000 in sergeant’s gay slurs case,” available for reading in the June 16, 2009 edition of The Orange County Register.

Federal Routine Costs and Civil Rights Fees: Ninth Circuit Rejects Creative “Prevailing Party” Costs Claim By Losing Plaintiff And Remands Denial Of Defense Fees Decision For Reconsideration

Illinois Sitting Judge Shadur Raises Alchemy Analogy in Court of Appeal Decision.

     Federal court costs are routinely rewarded to the prevailing party—especially the party winning a summary judgment motion or trial against a plaintiff. Even though this happened in the context of a summary judgment proceeding, the plaintiffs in the next case tried to argue they actually “won” because certain victorious positions set up the possibility for future wins by the plaintiffs in future cases. The defense also can recoup attorney’s fees if the plaintiffs’ civil rights case is frivolous. The next case discusses the creative cost argument raised by plaintiff and the defense plea that it might be entitled to fees if a clearer record was present on the frivolity ground for a fees award.

     In San Diego Police Officers’ Assn. v. San Diego City Employees’ Retirement System, Case No. 07-56004 (9^th Cir. June 10, 2009) (for publication), the Ninth Circuit affirmed a summary judgment granted in favor of the City of San Diego-related defendants and against the San Diego Police Officers’ Association based on various civil rights violations arising from pension contractual rights violations. The district judge determined that defendants, as prevailing parties, were entitled to an award of routine costs but denied recovery of attorney’s fees to either side. Both sides appealed the costs orders.

     The Ninth Circuit, in a 3-0 opinion authored by Senior District Judge Shadur (sitting by designation), affirmed the summary judgment, affirmed the costs award against the plaintiff, and remanded the fee determination for further consideration.

     German Alchemist.   From woodcut.  Attributed to Holbein (the Elder).

     First up (for purposes of this blog) was the consideration of the costs award. Plaintiff argued that it actually prevailed despite entry of summary judgment in the defense’s favor, premised on the argument that one adverse finding in the process might mean plaintiff could gain concessions in future negotiations or get mileage in future cases. The Ninth Circuit’s reaction? Here you go: “Association seeks to emulate the alchemists in the Middle Ages in its effort to transmute the base metal of its total loss on the merits into the gold of ‘prevailing party’ status by asserting that the district court’s order materially altered its relationship with [Defendants] . . . . That just won’t work, and not just because any purported ‘prevailing party’ status for Association is wholly counterintuitive. After all, Association has obtained no judgment, consent decree or settlement that it can enforce against [Defendants] . . . . Its unproved and attenuated prospect of a better chance to assert a claim for the payment of wages and retirement benefits in some future case finds no support in the caselaw for ‘prevailing party’ status in this case.” (Slip Opn., at 6934.)

  

 

     Next up was the fee denial under the federal civil rights statute.

     Judge Shadur prefaced the Ninth Circuit’s discussion by noting that civil rights plaintiffs usually get fee awards, with defendants only recovering if they prove the plaintiff’s action was frivolous, unreasonable, or without objective foundation. (“ . . . it has been firmly established for nearly three decades that the award of attorneys’ fees under Section 1988 emulated George Orwell’s Animal Farm: ‘Some animals are more equal than others.’”)

The main problem was that the district judge did not explain her denial of the fee award, which required a remand to see exactly why she decided as she did. Otherwise, review by the federal court of appeals could not be an informed one.

     BLOG OBSERVATION—Plaintiff might have been better off not appealing at all. The merits and costs determinations were affirmed, and now it faces another hearing on a substantial fee exposure. It may still turn out all right for plaintiff, but the scales could also tip the other way!

Attorney’s Fees In the News …. Newport Beach Police Sgt. Neil Harvey’s Hearing For Payment Of $2.14 Million In Requested Fees Will Occur in June 2009

His Attorneys Are Seeking a $1 Million Lodestar Plus a Multiplier.

     According to a May 14, 2009 article by Joseph Serna in the Daily Pilot, civil attorneys representing Newport Beach police Sgt. Neil Harvey, who obtained a favorable civil rights award of $1.2 million from a jury earlier this year, will be moving for $2.14 million in fees from the City of Newport Beach, CA sometime in June 2009. The fees totaled more than $1 million, but they are seeking twice that based on a multiplier request.

     So, stay tuned in June 2009, when we report back on how he did on the motion.

CDPA: Plaintiff Awarded $3,000 Fees Out Of Requested $33,918.20 Where He Only Recovered $1,000 Statutory Damages

Second District, Division 5 Finds No Abuse of Discretion, But Provides Tantalizing Dicta on Statement of Decision Requirements in Unpublished Decision; It Also Reminds Everyone to Provide a Reporter’s Transcript on Appeal.

     The next case may seem mundane, but does give some insights into the thought process of judges when confronting fee awards where very limited success is involved. Beyond that, it does contain the seeds for an argument that California law may need to change in the area of disabilities and civil rights awards, with some statement of decision (albeit concise) required to justify an award or denial of fees in these substantive areas of the law.

     Canady v. C & CH, LLC, Case No. B210316 (2d Dist., Div. 5 May 13, 2009) (unpublished) involved what may seem to be a routine appeal—a plaintiff recovering $1,000 in statutory damages under the California Disabled Persons Act, Civil Code section 54.3(a), sought to recover $33,918.20 in attorney’s fees but was only awarded $3,000 instead. (CDPA, Civil Code section section 54.3(a) does allow for recovery of fees by a plaintiff winning damages.) Given the limited success by plaintiff and other factors allowing the appellate court to conclude that the claimed hours were unreasonable based on the routine nature of the action, the matter could have stopped here and the decision would be unremarkable except to show how fee awards are usually discounted in cases where the damages award is small and the success is limited in nature. Guess what? There is more to the case, on two fronts.

Civil Rights: Ninth Circuit Denies Panel Rehearing and Rehearing En Banc Petitions in McCown v. City of Fontana

Decision Reversing $200,000 Fee Award and Remanding for Reconsideration.

     In our December 25, 2008 post, we reviewed McCown v. City of Fontana, 550 F.3d 918 (9^th Cir. 2008), which reversed and remanded a $200,000 fee award in a civil rights case (42 U.S.C. sec. 1983).

     The Ninth Circuit recently denied panel rehearing and rehearing en banc petitions, reissuing an amended opinion in light of these developments on April 24, 2009.

ADA: Reversal Of Lawsuit Based On Lack Of Standing Requires Vacating Of Monetary Sanctions

Ninth Circuit Reverses District Court’s Sanctions Order.

     In an American with Disabilities Act (ADA) case, a district judge dismissed a lawsuit based on plaintiff’s lack of standing and imposed monetary sanctions against plaintiff and his counsel for bringing a frivolous case. The Ninth Circuit reversed the standing determination, which also meant that the sanctions order “went away.”

     Because the Ninth Circuit had subsequently found standing in a similar situation, Doran v. 7-Eleven, 524 F.3d 1034, 1041 (9^th Cir. 2008), reversal was required in this case before it, where the summary judgment motion was decided before issuance of Doran.

     The reversals came in Wilson v. Kayo Oil Company, Case Nos. 07-56765 & 08-55444 (9^th Cir. Apr. 24, 2009) (published per curiam opinion).

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.

Unruh Act: Court Of Appeal Affirms $12,436 Attorney’s Fees Award Based On Limited Success Of Plaintiff

 

In a Split Opinion, Second District, Division 6 Rejects Plaintiff’s Requested $24,871.75 In Light of His Recovery of $4,000 Minimum Statutory Damages.

     In cases involving mandatory fee-shifting statutes (such as the Unruh Act, Civil Code section 52(a)), we have seen an emerging theme that encompasses a large number of attorney’s fees recoveries: the success of the litigant usually has a great deal to do with the fee award in connection with the trial court’s discretionary decision making calculus. The next decision we examine is no exception to this observation even though a dissenting justice saw things differently.

     Plaintiff in Barrette v. Costco Wholesale Corp., Case No. B202606 (2d Dist., Div. 6 Apr. 16, 2009) (unpublished) won minimum statutory damages of $4,000 under the Unruh Act arising out of a violation under the American with Disabilities Act (ADA, 42 U.S.C. sec. 12182). The small award was the result of defendant moving quickly to put policies in place to rectify future ADA violations. The trial court awarded plaintiff only about one half of requested fees--$12,436 out of the sought-after $24,871.75 lodestar (originally, plaintiff sought $27,278, but the trial court eliminated $2,856.25 to reach the lodestar amount). Plaintiff appealed, claiming a higher fee award was in order.

Cases Under Review: U.S. Supreme Court Grants Certiorari To Resolve Split On Fee Enhancements

 

Issue Is Whether District Judges Can Enhance Lodestar Based Solely on Quality of Attorney Performance and Results Obtained Under Federal Fee-Shifting Statute.

     Yesterday, the U.S. Supreme Court granted certiorari on an attorney’s fees issues that has generated a split among federal appellate courts on whether district judges can enhance lodestars based solely on the quality of an attorney’s performance and results obtained under a fee-shifting statute when these same factors were already utilized in reaching the lodestar calculus.

     The case accepted for review is Perdue v. Kenny A., No. 08-970 (U.S. Apr. 6, 2009). There, class action attorneys successfully brought an action against Georgia and several of its governmental agencies/officials to change Georgia’s foster care system, which the suit did—a settlement brought about reduced case loads and more personnel, among other improvements. The class action attorneys then moved for fees, with District Judge Marvin Shoob awarding them a $6 million lodestar plus a $4.5 million enhancement based on class counsel’s skill, commitment, dedication, and professionalism under the federal civil rights statute (42 U.S.C. sec. 1983) containing a fee-shifting provision.

     Stay tuned for our post on this decision when it comes down from the high court. This decision will impact numerous cases involving about 100 fee-shifting statutes. Opponents that do not believe fees should be enhanced for these factors alone argue that enhancement is effectively a “double dip” for what is considered initially in determining the appropriate lodestar.

     HAT TIP to Benjamin Shatz of enBanc, the Los Angeles County Bar Association’s official blog for bringing this important development to our attention.

FEHA: Court of Appeal Affirms Award Of Lower Fee Award To Winning Plaintiff

First District, Division 4 Sustains Fee Award of $676,001 Based on a 1.25 Multiplier, Rather than Plaintiff’s Requested $940,590.87 Lodestar Plus a Proposed 2.0 Multiplier.

     The First District, Division 4, in the unpublished decision of Tarver v. City and County of San Francisco, Case No. A116731 (1^st Dist., Div. 4 Mar. 23, 2009) (unpublished), has penned a nice opinion showing the deference that appellate courts will give to well-reasoned decisions by trial courts, even where the lower courts reduce proposed lodestars and award diminished multipliers.

POOF!: Civil Rights Fees Award Of $260,782.50 Is Vacated Upon Reversal of Qualified Immunity Ruling

Ninth Circuit Takes Away Substantial Section 1983 Fee Award.

     Federal appeals court, too, illustrate our POOF! principle—substantial fee awards vanish when a favorable merits determination is reversed upon review.

     In Johnson v. Walton, Case Nos. 07-55935, 07-56238 & 07-56547 (9^th Cir. Mar. 13, 2009) (for publication), two plaintiffs were awarded a total of $80,100 in damages stemming from an alleged illegal search and seizure by a Los Angeles County sheriff officer under 42 U.S.C. sec. 1983. Officer’s summary judgment based on qualified immunity was denied. The district judge granted judgment in favor of plaintiffs and against officer, with the jury subsequently awarding the $80,100 damages award. Plaintiffs were then awarded fees and expenses totaling $260,782.50 under section 1988.

     Officer appealed and won a reversal based on the qualified immunity defense. So, what naturally followed? You guessed it – POOF! – the attorney’s fees/expense award was also vacated with the reversal of the judgment against officer.

FEHA: 25% Of Requested Fees Awarded Based On Apportionment

Second District, Division 3 Sustains Application of Negative Multiplier Based on Plaintiff Prevailing On Only One of Four Claims.

     The California Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA), has a mandatory fee-shifting provision for prevailing plaintiffs. (Gov. Code, sec. 12965(b).) Nonetheless, it is tempered by mandating only awards of reasonable fees and costs in the discretion of the trial court. This means that the lower court can either enhance or reduce the award depending on the circumstances, as the next case illustrates.

     In Weisdorf-Mahserjian v. Serco, Inc., Case No. B206243 (2d Dist., Div. 3 Mar. 6, 2009) (unpublished), plaintiff pled 5 FEHA cause of action but only prevailed on a retaliation claim for which a jury awarded $43,866.58 for past economic loss. Plaintiff then moved for a $180,545.50 fee award—broken down as a lodestar of $144,434 (number of hours worked by attorneys times their applicable hourly rates) plus a requested 1.25 multiplier. The defendant opposed, arguing fees should be denied outright or that plaintiff should only be awarded 25% of the lodestar because she only prevailed on one out of her four claims.

Potpourri: FEHA Fee Award Against Costco And Recent Article Confirms Steep Decrease in Jury Trial At Both State and Federal Levels

Costco Hit With FEHA Fee Award of $471,240 Plus Costs.

     In our category “Civil Rights,” you will find cases discussing California’s Fair Employment and Housing Act (FEHA), a statutory scheme that has a mandatory fee-shifting provision in favor of winning plaintiffs. The next fee award demonstrates that, depending on the ultimate outcome, fee awards can be substantial in difficult cases vindicating civil rights.

     Juan Valera sued Costco under FEHA for hostile work environment and sexual orientation discrimination. Although rejecting the sexual orientation discrimination claim, a Los Angeles jury did award him $420,000 for enduring a hostile work environment.

    Mr. Valera also moved for attorney’s fees under FEHA. Los Angeles County Superior Court Judge Maureen Duffy-Lewis ordered Costco to pay his lawyer Leo J. Terrell $471,240 in fees, plus routine costs of $39,540.

     This result demonstrates that FEHA fees can sometimes outstrip a nice recovery where an attorney efficiently litigates a matter to a positive conclusion. On the opposite end, FEHA awards can be quite diminished where the outcome was not as positive, there were inefficiencies by the litigating attorneys, or where the matter was not that difficult to resolve.

     For more details on this case, see the Daily Breeze Blog of February 11, 2009. 

L.A. Daily Journal Article Highlights Slump in Jury Trials.

     In our past posts of December 19, 2008 and October 30-31, 2008, we respectively summarized state and federal reports showing that jury trials were on the decline. A recent article by Dhyana Levey, “For the Vanishing Civil Trial, Report Shows Another Down Year,” in The Los Angeles Daily Journal (Feb. 13, 2009 edition) gives added confirmation to the existence of this decline.

     In California, the number of jury trials dropped 28% in fiscal year 2006-07 as compared with the previous year. Dating back to the 2002-03 fiscal year, there was a 37% decreased in jury civil trials during the five-year period.

     Nationwide, the percentage of state civil cases that went to a jury trial dropped from 1.8% in 1976 to .6% in 2002. (From our previous post, California clocked in at 1.7% for civil unlimited jury trials during the 2006-07 fiscal year.)

     At the nationwide federal level, jury trials fell from 5.5% in 1962 to 1.2% in 2002, even though case filings increased fivefold during the same interval.

     The Daily Journal article quotes one San Francisco defense attorney as indicating that expense is the driving force behind this phenomenon, with clients not wanting to go to trial if the expenses exceed a settlement and with discovery being the major culprit behind escalating litigation costs (especially given the expense of electronic discovery). Based on the expense of litigation, at least one other attorney opined that this pushes matters into mediation “to get the spending stopped.”

Civil Rights Plaintiffs: Ninth Circuit Reverses Adverse Fee Award, Finding Dismissed Case Was Not Frivolous

Reversal Draws A Dissent On the Fee Award Issue.

      Under our category “Cases: Civil Rights,” we have discussed federal civil rights decisions brought under 42 U.S.C. sec. 1983. Generally, section 1988 is a pro-plaintiff fee shifting provision, although fees can be awarded to the defense where the claim is shown to be frivolous in nature. Nevertheless, as the next case illustrates, the Ninth Circuit appears loathe to uphold fee awards against civil rights plaintiffs, unless the result is crystal clear as far as the merits are concerned.

Prevailing Individual Defendant In Employment Retaliation Case Awarded Substantial Routine Costs After Rejected 998 Offer Of $1.179 Million 998 Offer Found Reasonable In Nature

 

Fourth District, Division 3 Affirms Costs Award in Favor of Winning Individual Defendant.

     If you are a plaintiff suing for employment retaliation, do not think that the suit carries little risks. Routine, non-fee costs of a substantial nature can still be assessed against you. Also, you as the plaintiff need to seriously evaluate substantial 998 offers, rather than gamble that you will do better in front of a jury. The next case illustrates these lessons well.

FEHA: Fees Award Affirmed Against Nonprofit Organization Because It Was Unreasonable and Frivolous In Nature

$125,000 Fee Award Sustained on Appeal.

     Although FEHA fee awards are not that common against plaintiffs, they will be assessed and affirmed on appeal under the right circumstances.

     Fair Housing Council, San Fernando Valley v. Voleti Properties, Case Nos. B201263 & B202918 (2d Dist., Div. 7 Jan. 21, 2009) (unpublished) is just such a case.

     There, plaintiffs—a nonprofit organization and an adult African American—sued defendants under FEHA for discriminatory housing practices in connection with a Van Nuys apartment. The main problem for plaintiffs is that they prosecuted a case where the nonprofit organization’s testers gave discrepant information to the trial court, only after the information had to be judicially compelled for production to the defense. The trial court granted judgment for the defendants under Code of Civil Procedure section 631.8. Subsequently, it assessed an award of $125,000 in attorney’s fees and $10,105.73 in costs against plaintiffs based on the perception that the case was unreasonable, frivolous, and meritless in nature.

     Nonprofit organization appealed and lost. Appellants failed to present an adequate record for review and showed no prejudicial error. Respondents did provide the fee hearing transcript so as to demonstrate there was no basis for reversal. The testers’ discrepancies alone seemed to carry the day with respect to sustaining the result.

     BLOG APPELLATE POINTER—If you are the respondent and the transcripts of lower court proceedings aid your cause, do not hesitate to request augmentation so that they can be considered. Respondents did it in this case, and it assisted their efforts in supporting the trial court’s determinations.

 

Left:  San Fernando Valley rural rehabilitation client.  Chicken farmer making good on rural resettlement loan.  He sells one case of eggs a day.  Right:  San Fernando Valley federal subsistence homesteads.  February, 1936.  Photographer:  Dorothea Lange.  Library of Congress.

FEHA: Appellate Court Sustains 1.4-1.6 Multipliers To Plaintiffs' Fee Awards

Second District, Division 6 Rebuffs Challenges to FEHA Multipliers.

     Plaintiffs winning claims under the California Fair Employment Housing Act (FEHA), Gov. Code, § 12900 et seq., are normally awarded fee-shifting awards. Trial courts have ability to enhance the lodestar—the number of hours reasonably expended multiplied by the reasonable hourly rate—by a multiplier in order to fix the fee at the fair market value for the legal services rendered. (Ketchum v. Moses, 24 Cal.4^th 1122, 1134 (2001).) In the next case, plaintiff won a $1.2 million compensatory damage award (reduced from $1.7 million by the trial court), a $1.2 million punitive damage award (reduced from $16.7 million by the trial judge), and awards of attorney's fees to one of his firms in the amount of $300,709.50 (using a 1.4 lodestar multiplier) and to another firm in the amount of $343,265.60 (using a 1.6 lodestar multiplier). Corporate defendant was not happy and appealed, even after plaintiff accepted the remittitur.

Civil Rights: Ninth Circuit Reverses $200,000 Section 1988 Fee Award For Failure To Explain Lodestar Calculation And Consider Plaintiff's Level of Success In the Litigation

Case Remanded for Fee Reconsideration by District Judge.

     California federal courts, at least in civil right cases, require more detailed findings in fee awards conferred to plaintiffs than our state courts do under similar circumstances. (As discussed in posts listed under our category "Cases:  Civil Rights," state courts do require specific findings in FEHA fee awards in favor of defendants as to frivolousness and as to plaintiffs' ability to pay; use our sidebar widget to do a blog search under Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4th 859 (2001).)  The next case demonstrates the rigor with which our Ninth Circuit requires findings in actions brought under 42 U.S.C. section 1983.

Double Header -- Baseball Angels Dominate Judicial News Yet Again: Fourth District, Division Three Publishes Cohn v. Corinthian Colleges, Inc.

Mother’s Day Giveaway Does Not Violate Unruh Act or Give Losing Plaintiffs a Right to Fees.

     In our November 28, 2008 post, we discussed Cohn v. Corinthian Colleges, Inc., a Fourth District, Division Three decision holding that the Mother’s Day totebag giveaway at Angels’ Stadium did not violate the Unruh Act and that the losing plaintiffs were not entitled to recover attorney’s fees under the Act’s fee-shifting provision. On December 19, 2008, Cohn was certified for publication, ironically on the same day that the Angels-Anaheim appeal was decided by the same appellate court. (See our post of today for a discussion on that long-awaited decision.)

     BLOG CROSS-REFERENCE: Cohn also was a subject for discussion by Cal Biz Lit in his November 21, 2008 post.

 

 

Women and Men Playing Baseball c1910

FEHA: Losing Plaintiff Suffers Adverse Costs Award, With No Need To Weigh Whether Plaintiff Has The Ability to Pay

 

Fourth District, Division One Rejects Engrafting Rosenman Requirements Into Routine Costs Proceedings.

     In our earlier posts of December 11, 2008 on Trisler and December 16, 2008 on Young, we discussed the Rosenman requirements in FEHA cases: the trial court must make specific written findings as to why the action was frivolous and about plaintiff's ability to pay before attorney's fees can be properly awarded to the winning defense. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4^th 859, 866 (2001).) The next case involves a creative argument made by a plaintiff who contended that the same requirements should govern imposition of routine costs that are claimed by the victorious defendant. This creativity did not find receptive ears with the Fourth District, Division One in Arnold v. The Senate Rules Committee, Case No. D051862 (4^th Dist., Div. 1 Dec. 16, 2008) (unpublished).

Civil Rights: Ninth Circuit Reverses And Remands District Court's Refusal To Award Fees To Plaintiffs Obtaining Both A Preliminary And A Permanent Injunction

District Court Did Not Identify Special Circumstances Rendering a Fee Award Unjust Under Civil Rights Fee-Shifting Statute.

     Six media corporation plaintiffs obtained both a preliminary injunction and permanent injunction against the Nevada Secretary of State pursuant to the federal civil rights statute, which also has a fee-shifting statute in 42 U.S.C. § 1988(b). Plaintiffs then sought fees pursuant to section 1988, but the district court denied the request based on finding unarticulated "special circumstances" that would make a fee award unjust.

     On appeal, the Ninth Circuit—in a per curiam opinion—reversed and remanded. American Broadcasting Companies, Inc. v. Miller, Case No. 07-15227 (9^th Cir. Dec. 12, 2008) (published).

     The Court of Appeals observed that a prevailing party should normally be awarded fees under section 1988, with a district court needing to issue findings of fact and conclusions of law identifying the "special circumstances" for departure and explaining why a fee award was determined to be unjust. Sethy v. Alameda County Water Dist., 602 F.2d 894, 897 (9^th Cir. 1979) (per curiam). The district judge's single-sentence did not identify the special circumstances, requiring reversal and a remand.

     The district judge did cite Thorsted v. Munro, 75 F.3d 454 (9^th Cir. 1996) as a basis for finding "special circumstances," but the Ninth Circuit was unimpressed. Thorsted had previously been found to be based on factors "largely unique to that case." Democratic Party v. Reed, 388 F.3d 1281, 1285 (9^th Cir. 2004).

     Instead of Thorsted, the district court should have focused on the bipartite test in Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9^th Cir. 2008) to determine if "special circumstances" existed to depart from the presumptive fee recovery rule: (1) whether awarding fees would further the purposes of section 1988; and (2) whether the balance of equities favored/disfavored the denial of fees. Again, the Ninth Circuit stressed that an award of fees was the general rule, unless there was a strong likelihood of success on the merits and strong likelihood of a substantial judgment at the litigation's outset.

     The fee denial judgment was vacated and remanded for the district court to conduct an analysis under Mendez as well as enter the findings required by Sethy.

FEHA Winning Supervisor Awarded Only $1 In Attorney’s Fees Because Non-Fee Garnering Employer Funded Winner’s Defense

 

Second District, Division Eight Affirms Lower Court’s Discretion to Not Award Fees to Winning FEHA Defendant Where the Actual Beneficiary of the Award is Another Defendant Not Entitled to Fee Recoupment.

     In our December 11, 2008 post on Trisler, we discussed the FEHA fee-shifting statute, Government Code section 12965(b), and the leading case of Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4^th 859, 864 (2001), which in tandem establish that a prevailing FEHA defendant should be awarded fees only “in the rare case in which the plaintiff’s action was frivolous, unreasonable, or without foundation.” Rosenman also established the requirement that specific written findings be made in cases where lower courts determine the FEHA plaintiff’s action was frivolous as well as specify whether plaintiff has the ability to pay an adverse fees award. The next case presented an unusual twist: winning supervisor defendant was determined to be appropriately awarded fees, but supervisor’s defense was funded by a winning employer defendant which was not entitled to a fee award. Keep reading and see how the lower and appellate courts resolved this twist.

     Young v. Exxon Mobil Corp., Case No. B189263 (2d Dist., Div. 8 Dec. 11, 2008) (certified for partial publication) involved a plaintiff employee (Ms. Young) who was terminated after closing down a 24-hour service station for several hours, in violation of company policy. Young sued her employer (Exxon) and her supervisor (Ms. Lopez) under FEHA, principally claiming harassment on the basis of mental disability, retaliation, and wrongful termination. Young lost a summary judgment motion to both defendants, with the trial judge finding that she did not negate Exxon’s legitimate, nondiscriminatory reasons for terminating her and that she could not prove the reasons were pretextual in nature. Supervisor (not Exxon) filed a motion for attorney’s fees under the FEHA fee-shifting statute, seeking $18,750 in fees (about one quarter of the fees spent in the total defense of the action). The trial court did find that Young’s claims, as against the supervisor, were “unreasonable, frivolous, meritless, vexatious, without foundation, and brought in subjective bad faith.” However, Lopez’s defense fees were paid by Exxon, such that the lower court concluded it “does not seem right” to award fees back to a party which did not claim Young’s claims were frivolous. The trial court awarded Lopez nominal attorney’s fees of $1.00. Both employer and supervisor cross-appealed this ruling.

     The Second District, Division Eight, in a 3-0 published decision penned by Presiding Justice Cooper, affirmed the fees award on appeal.

     The appellate court framed the question as being whether the trial court abused its discretion in refusing to award fees to a defendant who did not incur or pay them, when the fee award would redound to the benefit of another defendant which was not entitled to a fees award. “To this question, our answer, in this case, is “no.” In other words, while a trial court should ordinarily award attorney fees to a prevailing defendant in an FEHA action when the court finds the plaintiff’s action was frivolous, the court has the discretion not to do so if the actual beneficiary of the attorney fee award is a defendant to which an award could not otherwise be made.” (Slip Opn., at p. 20.)

     Exxon and Ms. Lopez argued that there are many other cases in which courts have awarded fees to prevailing parties even though those parties were not actually liable for or did not incur or pay fees. (Among others, see, e.g., International Billing Services, Inc. v. Emigh, 84 Cal.App.4^th 1175, 1192 (2000) [Civil Code section 1717]; Beverly Hills Properties v. Marcolino, 221 Cal.App.3d Supp. 7, 9, 11 (1990) [same].) Justice Cooper, however, found these situations distinguishable because “in all those cases, the attorney fee award actually benefits the prevailing party or an entity which has provided the services and would otherwise not be compensated for them.” (Slip Opn., at p. 21.) Put another way, the parties or entities in the cases relied on by Exxon/Lopez were not disqualified from obtaining fees in the first instance.

     Furthermore, the evidence of record did not show that Ms. Lopez incurred any fees over and above that necessary to also defend Exxon in the case—another reason justifying the nominal award by the lower court.

     With respect to Rosenman’s requirement of making findings on plaintiff’s ability to pay, this was unnecessary in this case because the $1.00 award would certainly not “break the bank” or lead to financial ruin. However, there was also evidence of record showing that Ms. Young would be bankrupted or seriously hurt if she had to pay the requested $18,750 fee award. The lower court’s “equitable” decision in Young was affirmed upon review.

Nonvictorious FEHA Plaintiff Suffers Adverse $150,000 Fees Award

Second District, Division Two Affirms Award and Acknowledges that Findings of

Frivolousness Must Be Written/Specific in Nature.

     As we have noted in past posts on actions brought under the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.), a court has discretion to award fees and costs to the prevailing party. (Gov. Code, § 12965(b).) In many instances, the fee-shifting statute favors plaintiffs, who are routinely awarded fees as prevailing parties, whereas defendants only obtain fees based on specific, written findings that their opponents' actions were "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." (Cummings v. Benco Bldg. Services, 11 Cal.App.4^th 1383, 1392, as reviewed in many of our posts under the category "Cases: Civil Rights.") Simply because a plaintiff did not ultimately prevail at trial is not reason alone to award fees against an unsuccessful FEHA plaintiff. (Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).) However, in the next case, plaintiff was assessed with a substantial fee award, with the appellate court directly addressing the specificity of written findings necessary to sustain an award based on prosecution of a frivolous FEHA action.

     In Trisler v. Los Angeles County Metro. Transp. Auth., Case No. B200770 (2d Dist., Div. 2 Dec. 10, 2008) (unpublished), plaintiff—who worked only 65 days for MTA before his employment was terminated—sued under FEHA for disability discrimination, failure to accommodate, and retaliatory discrimination. His retaliation claim was dismissed through a grant of an in limine motion, and the jury returned a verdict against plaintiff on the remaining counts. The trial court subsequently found that plaintiff's prosecution of the case past the discovery stage was frivolous, awarding MTA $150,000 of its requested $179,921.81 in attorney's fees (reducing the amount "to be conservative"). Plaintiff appealed.

     The Second District, Division Two affirmed the $150,000 fee award against plaintiff.

     There was plenty of evidence in the record below to support the lower court's finding of frivolity. Plaintiff was not honest with the MTA about having physical restrictions (not telling interviewees about any disability) or a criminal history (also not telling them about a prior misdemeanor battery) when applying for employment. Plaintiff lied on his employment application with a subsequent employer, indicating he had never been terminated or convicted of a crime. Plaintiff never complained to any MTA supervisors about unfair treatment, but was fired because he has unhelpful or "missing in action" for prolonged periods on the job. Even though plaintiff survived summary judgment motion on his claims, this did not create a "bright-line rule" indicating a litigant can never be liable for attorney's fees in the FEHA area. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4^th 859, 866 (2001).) After discovery, plaintiff should have known—factual issues aside—that his FEHA claims were without merit, exposing him to fee recovery for continued prosecution of his action. The appellate court found that his situation was different than just having a weak case, but was acutely distinguishable because plaintiff continually distorted facts and could not produce any credible testimony to support his need for accommodations for any physical disability.

     In Rosenman, the deciding appellate court imposed a "nonwaivable" requirement that a trial court make written findings that a plaintiff's action was frivolous, unreasonable or groundless in all FEHA cases where attorney's fee are awarded to a defendant. (91 Cal.App.4^th at 868). In a footnote, the Rosenman court further suggested that lower courts should also make findings on plaintiff's ability to pay a fee award. (Id. at 868-869 n. 42.) Because the lower court in Trisler did not make written findings on plaintiff's ability to pay, plaintiff argued the matter had to be reversed and remanded. The Second District, Division Two found this omission was not prejudicial at all. At the hearing on the fees motion, the trial judge referred to plaintiff's admissions at trial that he was independently wealthy, did not need another dime during his lifetime, and had extensive asset holdings. This testimony sufficed to demonstrate ability to pay, with both the trial and appellate courts dismissing a contradictory fee declaration from plaintiff indicating he only made $280 per month and was struggling to pay bills. The Court of Appeal did have this observation for future cases: "We agree with the Rosenman court that the better course of practice is for trial courts to make written findings on all factors that support an award of attorney fees to a defendant in a FEHA case, including the ability to pay attorney fees. But where, as here, the record makes clear that the trial court considered appellant's failure to pay, we are satisfied that the public policy of not discouraging meritorious FEHA claims has been respected." (Slip Opn., at p. 19.)

     BLOG UNDERVIEW—In an interesting footnote on the Rosenman "written findings" requirement, the Trisler panel did note that the Ninth Circuit in Miller v. Los Angeles County, 827 F.2d 617, 621 n. 5 (9^th Cir. 1978) had previously stated "a district court should not refuse to award attorney's fees to a prevailing defendant …solely on the ground of the plaintiff's financial situation."

Plaintiff Prosecuting Unreasonable FEHA and Torts Against Governmental Defendants Suffers Adverse Fee and Costs Award of $221,452

Third District, in Unpublished Decision, Affirms Fee Award Against Losing Plaintiff.

     Many of our past posts under the category “Cases: Civil Rights” tend to demonstrate that it is an unusual showing that results in fee exposure for a losing plaintiff in civil rights or Fair Employment and Housing Act (FEHA, Gov. Code sec. 12940 et seq.) cases. However, with the right showing that the claims were objectively unreasonable from the start, defendants can recoup their fees. The next case, Olfati v. State Bd. of Equalization, Case No. C053897 (3d Dist. Dec. 5, 2008) (unpublished), shows how subsequent admissions in summary judgment proceedings can create the right record for imposition of fee awards normally not resulting in cases where plaintiffs are usually given the benefit of the doubt in vindicating civil rights/employment discrimination charges.

     In Olfati, plaintiff employee of the Board of Equalization (BOE) sued BOE and three individual BOE employees for fraud, defamation, retaliation in violation of FEHA, retaliation in violation of the False Claims Act (Gov. Code sec. 12650 et seq.), and discrimination/harassment in violation of FEHA. All defendants obtained summary judgment/adjudication of the claims, except the trial court gave plaintiff leave to amend to add a cause of action against BOE for retaliation under Labor Code section 1102.5. The lower court sustained a demurrer without leave on the added claim based on naming the individual defendants, adding new facts, failure to exhaust administrative remedies, and statutory governmental immunities.

     That brings us around to the topic that peaks our interest: attorney’s fees. Defendants moved for fees and costs pursuant to two sections: (1) Code of Civil Procedure section 1038 (allowing defense fees and costs for government tort actions not brought or maintained in good faith and with reasonable cause); and (2) Government Code section 12965(b) (allowing the prevailing party in a FEHA action reasonable attorney’s fees and costs in the trial court’s discretion). The trial court granted fees/costs under both statutes, ordering plaintiff alone to pay BOE fees/costs in the amount of $221,452. Plaintiff appealed, losing challenges to the merits determinations and the fees/costs award.

FEHA Fee-Shifting Provision

     Government Code section 12965(b) does allow fee-shifting when a FEHA action is found to be “unreasonable, frivolous, meritless or vexatious.” (Bond v. Pulsar Video Productions, 50 Cal.App.4^th 918, 921(1996); Cummings v. Benco Building Services, 11 Cal.App.4^th 1383, 1387 (1992).) The “meritless” and “vexatious” prongs are objectively based, although a finding of bad faith will provide even a stronger basis for imposition of fees. (Bond, supra, 50 Cal.App.4^th at 925.)

     Because the lower court’s findings were reviewed for abuse of discretion (Bond, supra, 50 Cal.App.4^th at 921), plaintiff failed to show that she had any basis to allege retaliation based on race, religious creed, national origin, sex, age, etc. as well as actually admitting in the summary adjudication proceedings that she was not discriminated against based on sex, religion, disability, or national origin. These circumstances and ultimate rulings in the law-and-motion proceedings showed plaintiff had no factual basis for the FEHA action “from the beginning.” (Slip Opn., at p. 45.) Nevertheless, fees were justified because BOE had to pursue discovery and bring subsequent summary judgment/adjudication motions to dispose of the FEHA claims.

     Plaintiff argued that the fees/costs award was flawed based on Hon v. Marshall, 53 Cal.App.4^th 470, 474, 478 (1997), which found section 12965(b) fees inappropriate where an adverse disposition was based on a litigant’s failure to exhaust administrative remedies. In contrast, plaintiff suffered an adverse determination on the merits, with the trial court determining she lacked facts to support the basic elements of her claims.

Tort Claims Act Fee-Shifting Provision

     Code of Civil Procedure section 1038 allows recovery of defense fees/costs in a Tort Claims Act case upon a finding that the plaintiff lacked either reasonable cause or good faith in filing or maintaining the lawsuit. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, 19 Cal.4^th 851, 853 (1998).) The question of “reasonable cause” under section 1038 focuses on whether the claim was objectively tenable and is reviewable de novo, whereas the question of “good faith” centers into an inquiry on the plaintiff’s subjective intent and is scrutinized under the substantial evidence review standard. (Hall v. Regents of University of California, 43 Cal.App.4^th 1580, 1586 (1996).) The reasonableness test is much like that for a malicious prosecution action, depending on the tenability of the action actually brought, reasoned the Third District. (Leonardini v. Shell Oil Co., 216 Cal.App.3d 547, 571 (1989).)

     Plaintiff never even responded to the defense summary judgment arguments on the fraud count. The defamation count was precluded because two of the statements were not actionable and the other communications were covered by at least two privileges and multiple governmental statutory immunities. They were not tenable as a matter of law, concluded the appellate panel.

     Plaintiff again sought refuge under Hon, but it did not provide sufficient shelter. The Court of Appeal observed that other cases did award section 1038 fees even where the actions were found barred by statutory immunities. (See, e.g., Kobzoff, supra, 19 Cal.4^th at 854, 863-864; Salazar v. Upland Police Dept., 116 Cal.App.4^th 934 (2004).) Beyond that, the lower court also based its adjudications on the failure to satisfy the elements of each tort claim, which was an independent reason for affirmance.

     The substantial fees/costs award against plaintiff was affirmed.

     BLOG UNDERVIEW—Kobzoff reminds us that the UCLA-USC rivalry heats up again this weekend. Marc is a graduate from UCLA’s law school, while Mike is an undergraduate alumnus from USC. Mike is playing the odds and saying USC will win. Marc makes no predictions, though of course he would like to see UCLA win.

No matter what, may the best team win! Go Bruins; go Trojans. Whatever the outcome, we will continue publishing this blawg.