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.

     The Second District, Division Six, in Stevens v. Vons Companies, Case Nos. B196755 & B201528 (2d Dist., Div. 6 Jan. 20, 2009) (unpublished), affirmed the attorney's fees award in plaintiff's favor.

     In deciding that the lower court did not abuse its discretion in fixing the fee awards, the appellate panel, in a 3-0 decision by Justice Yegan, made these points:

· The FEHA fee award is justified even if plaintiff was only vindicating his personal interest rather than a broader public interest (Weeks v. Baker & McKenzie, 63 Cal.App.4^th 1128, 1170-1171, 1172 (1998));

· The contingent nature of the fee arrangement with plaintiff's counsel is a proper factor to consider for multiplier purposes (Greene v. Dillingham Constr., N.A., Inc., 101 Cal.App.4^th 418, 428-429 (2002));

· The difficulty of the case is appropriately considered when calculating the lodestar amount (Greene, supra, 101 Cal.App.4^th at 426-427);

· Exceptional results obtained—such as the total $2.4 million award for a plaintiff previously only making a salary of $750 per week—can be used to enhance a lodestar calculation (Graham v. DaimlerChrysler Corp., 34 Cal.4^th 553, 582 (2004)); and

· The three-year delay in payment between the commencement of work by plaintiff's counsel and the fee award is another proper lodestar enhancement factor (Graham, supra, 34 Cal.4^th at 583-584).

     BLOG UNDERVIEW—The trial court's reduction of punitive damages to a 1:1 ratio was sustained, with Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008) cited in support of this result.