FEHA Plaintiff’s Counsel Offered 5% Duplication Discount and Trial Court Reduced Another 60% From Requested Amounts—Nothing More Needed.
Vargas v. Martinez-Senftner Law Firm, P.C., Case No. C069218 (3d Dist. June 5, 2014) (unpublished) was a losing defense appeal of a second lower court award of an additional $224,675.71 in fees to a winning FEHA plaintiff. (For a prior recap, FEHA plaintiff had won $368,000 in compensatory damages and $211,111.63 in initial fees, determinations previously appealed by the defense but sustained in plaintiff’s favor.) The defense did not gain anything further by challenging the second fee award, except that it likely will have to pay fees for losing the second appeal.
The deferential abuse of discretion standard really sealed the deal as far as appellate review of the amount of the second fee award was concerned, especially considering only $224,675.71 was awarded out of a requested $295,648.90 lodestar which was asked to be positively enhanced by 1.95 to $576,515.51.
However, there are some valuable lessons out there for you fee petitioning litigants/claimants. First, plaintiff did voluntarily discount the lodestar request by 5% for duplication, something both the lower and appellate courts responded favorably to. Second, plaintiff correctly rebutted a defense claim of excessive work by one attorney when calling out that the defense characterization of the work was way oversimplified in nature. Third, the lower court’s 60% reduction of the requested amount (especially not granting an enhancement) also resonated with the reviewing court.
BLOG UNDERVIEW—The Third District did like the Ninth Circuit’s reasoning in Moreno v. City of Sacramento, 534 F.3d 1106, 1128 (9th Cir. 2008), which observed that some duplication is inherent in the litigation process—with the state appellate court liking the voluntary 5% reduction by the plaintiff.