However, Appellate Court Provides Remand Guidance On Allocation, Paralegal Compensation, And Reasonableness Issues.
In Samuelson v. Dept. of State Hospitals, Case No. A143149 (1st Dist., Div. 2 Oct. 28, 2016) (unpublished), plaintiff was awarded $1 million in damages against defendants Dept. of State Hospitals and three psychologists hired by Napa State Hospital based upon employer retaliation and whistleblower protection claims. She was then awarded attorney’s fees totaling $1,231,188.70 based on fee entitlement statutes, namely, the whistleblower fee-shifting provision allowing recovery against individual defendants, but not the employer (Gov’t Code, § 8547.8(c)), and the private attorney general statute as against Dept. of State Hospitals (CCP § 1021.5). Defendants appealed the fee award.
In a prior appeal, the appellate court reduced the $1 million judgment down to $695,000. Based on this reversal, the appellate court then reversed and remanded the fee award based on the merits reduction. However, it did offer some guidance to the trial judge having to adjudge fees upon remand.
First, the trial judge did not apportion fees as between the two substantive claims based upon confusing conduct by the State which suggested no apportionment was necessary under the whistleblower fee-shifting provision (given the whistleblower fees were only assessable against the individual defendants and the private attorney general fees only against the State defendant). Although no “prejudging” was done by the reviewing court, it did remand for the trial judge to look at the allocation decision again, but stressing that State’s prior positions about no need for an allocation and unified defense of the case might lead to the same result.
Second, the work for pre-litigation administrative work that was intertwined with the subsequent court proceeding happened to be compensable, in line with what the trial judge did previously.
Third, the trial judge’s award of fees to plaintiff’s “household partner” or “boyfriend” (a patent lawyer not licensed to practice law in California) for volunteered paralegal work was no abuse of discretion, especially given the lower court reduced the requested work amount 25% for non-paralegal work. “Defendants point to no legal authority or good reason to support the position that volunteered paralegal services may only be compensable in a public interest lawsuit” and nothing in CCP § 1021.5 cases “restricts its application” on the paralegal issue. (Slip Opn., pp. 9-10.)