Prevailing FEHA Plaintiff Awarded $499,245.80—Lodestar Augmented By 1.55 Multiplier—In Unpublished Decision

First District Affirms Substantial Fee Award and Compensatory Judgment Following Successful Bench Trial for Plaintiff.

            Government Code section 12965(b) authorizes an award of reasonable attorney’s fees and costs to the prevailing party in an action brought under the Fair Employment and Housing Act (FEHA).  Normally, the prevailing plaintiff should be awarded attorney’s fees unless circumstances render such an award unjust.  Cummings v. Benco Bldg. Services, 11 Cal.App.4^th 1383, 1387 (1992).  The next case we review demonstrates that substantial fee awards (enhanced by a multiplier) are routinely granted in favor of prevailing plaintiffs in FEHA cases.

            Plaintiff, who was born in India and followed the Hindu religion, was hired by the California Public Utilities Commission (CPUC) to work as a water division utilities engineer.  He got rave performance reviews until a gentleman who was born Iran and was a Muslim became plaintiff’s supervisor.  After that, conduct apparently ensued that resulted in plaintiff bringing a FEHA complaint against CPUC.  Following a 14-day bench trial, the trial court awarded plaintiff $2,184 in economic damages, $545,000 for emotional distress, and $499,245.80 in attorney’s fees and costs.  Plaintiff had sought fees based on a 2.0 multiplier, but the lower court framed its award based on a 1.55 enhancement to the lodestar.

            CPUC appealed, with the First District, Division Five—in a 3-0 panel decision authored by Presiding Justice Jones—affirming both the merits judgment and fee/costs award.

            In Naidu v. Cal. Pub. Util. Commn., Case Nos. A119024, A119339 & A119947 (1^st Dist., Div. 5 Aug. 8, 2008) (unpublished), CPUC could not beat the abuse of discretion deferential standard upon review.

The challenge to plaintiff’s counsel’s $535 hourly rate was rebuffed because plaintiff presented expert declaration testimony showing the rate was in line with the amounts charged by other attorneys of similar experience litigating similar cases. 

            CPUC also challenged the 1.55 multiplier aspect of the award.  This, too, failed.  The Court of Appeal found that the lower court correctly applied the enhancement factors set forth in Ketchum v. Moses, 24 Cal.4^th 1122, 1132 (2001) [one of our Leading Cases], determining that the matter was a difficult case, plaintiff’s counsel had to turn down other work, and the case was carried under a risk-laden contingent fee arrangement.  Because the lower court reduced the sought-after 2 multiplier, the appellate panel found that some consideration was likely given to the fact that the defendant was a public entity (with the ultimate burden falling on the taxpayer).

            BLOG OBSERVATION #1—This reasoning does show that California jurists are frequently sensitized and pay attention to judgments that impact the public fisc.

            BLOG OBSERVATION #2—Numerous decisions from both federal district and trial courts in California have granted successful plaintiff multipliers of 2.0 or 3.0 in FEHA cases.  See, e.g., Crommie v. Cal. Pub. Util. Commn., 840 F. Supp. 719, 725 (N.D. Cal. 1994) [$637,440 fee award; multiplier of 2 justified]; Green v. County of Los Angeles, Los Angeles Superior Court Case No. BC111581 (Oct. 9, 1996) [$461,500 fee award and $35,000 costs award; multiplier of 2]; Keiffer v. Bechtel Corp., San Francisco Superior Court Case No. 974305 (Feb. 25, 1997) [$470,188 fee award; multiplier of 3].  For an excellent example of formatting for an opening memorandum and supporting declaration in a FEHA case where fees are sought, see Paul A. Greenberg’s papers.