Civil Rights/Costs/Lodestar: FEHA Winning Plaintiff Entitled To Almost $88,500 In Costs, But Trial Court Utilized Incorrect Lodestar Analysis On Reasonable Hourly Rate And Determining Hours Worked When Awarding $484,687.50 Out Of Requested $1,675,627.50

 

Matter Remanded for Re-fixing of Fees Award.

     Plaintiff winning a California Family Rights Act, some FEHA, and two common law claims—obtaining a jury verdict of $287,400--moved to recover about $95,000 in routine costs and $1,675,627.50 in fees enhanced by a 2.0 positive multiplier for well over $3 million in requested fees. The trial judge in Taylor v. Long Beach Memorial Med. Center, Case Nos. B240823/B242767 (2d Dist., Div. 8 Mar. 27, 2014) (unpublished) awarded $88,488.59 in routine costs and $484,687.50 in FEHA fees.

     Both sides appealed, with plaintiff winning a remand for a redetermination of the fees award.

     In regard to the costs award, that was affirmed in these ways: (1) expert witness fees were properly awarded under FEHA in the lower court’s discretion, with the appellate court finding that the plaintiff was okay to seek them through a costs memorandum rather than filing a separate motion per Anthony v. City of Los Angeles, 166 Cal.App.4^th 1011, 1015-1017 (2008)—in other words, no prejudice given that the defense got to contest the amount through its motion to tax costs; (2) voluntary mediation fees were proper, because a lower court can determine they are necessary and proper under CCP § 1033.5(c)(2), (4); (3) videotaped depositions not used at trial can still be awarded as costs because plaintiff showed they were used at court-ordered settlement conferences and because plaintiff abandoned using one of them after deeming the testimony redundant; and (4) some costs wrongfully inserted in the wrong category of the Judicial Council form again resulted in no prejudice to the defense.

     On the fee award, the appellate court found some errors in the lodestar analysis of the lower court, which relied significantly on a defense fee expert’s testimony. First, the fee expert erroneously used a uniform hourly rate, when each attorney’s hourly rate must be established. Second, the fee expert used a survey of small firms across all of California rather than rates for the Los Angeles legal community. Third, the fee expert did not survey employment practitioner rates. Fourth, the fee expert used a “macro” level analysis of what hours were reasonable without tethering that to any actual analysis of the billings, which the appellate court deemed plucking a number out of thin air—especially given that the number endorsed by the trial court was less than hours expended by the defense in the case, the party not having the burden of proof.