Civil Rights/Lodestar/Multiplier: $433,000 FEHA Recovery To Prevailing Plaintiff Affirmed On Appeal

 

Reduction In Requested Hourly Rate and Denial of Multiplier Were No Abuses of Discretion.

     In Shank v. CRST Van Expedited, Inc., Case No. G049844 (4^th Dist., Div. 3 Jan. 14, 2015) (unpublished), Plaintiff won a sexual harassment jury verdict against an employer and employer’s trainer, to the tune of $391,000 in compensatory damages and $1.17 million against employer/$3,500 against trainer in punitive damages, all occurring in San Bernardino County Superior Court. (The lower court threw out the punitive damages, but they were reinstated in plaintiff’s appeal of this aspect of the proceedings below.) The trial court then awarded plaintiff FEHA fees totaling close to $433,000, but lowered the requested $450 hourly rate to $350 and denied the request for a multiplier.

     The fee award was sustained on appeal.

     Justice Thompson, author for a 3-0 panel, determined the reduction in the hourly rate was no abuse of discretion. Many of the declarations supporting the higher rates were from out-of-venue attorneys, with only one being from a San Bernardino attorney, such that the court could use its own experience of Inland Empire hourly rates rather than credit declarations by attorneys practicing outside the county (or inside, from that matter). Plaintiff argued that a federal court had ruled that a judge cannot rely on personal knowledge/expertise alone if other evidence of hourly rates is in the record (Coleman v. Kay, 87 F.3d 1491, 1510 (3d Cir. 1996)), but the appellate court observed that California state law was to the contrary—a judge can rely on his personal experience as far as awarding an appropriate hourly rate. (Ketchum v. Moses, 24 Cal.4^th 1122, 1137 (2001) [one of our Leading Cases].) Judge Thompson also observed that “[w]ithout some analysis of why the instant case is comparable, the fee rate in another case is irrelevant.” (Slip Op., p. 31.)

     Although hinting that the reviewing panel might have come to a different conclusion on the multiplier question, the abuse of discretion standard required affirmance to the multiplier denial, given the lower court found the case was not that complex, FEHA sexual harassment cases were routinely seen (not that novel), and delay in payment based on the contingency nature of a matter is not a mandatory multiplier factor which must be credited. (Ketchum v. Moses, supra, 24 Cal.4^th at 1138.)