Employment, Ethics: Fourth District, Division 3, Affirms Award Of No Attorney’s Fees In Employment Case

And In The Published Part, An Attorney Is Reported To The State Bar For Misconduct.

        We blog about the next case a) because it involves attorney’s fees in its unpublished portion; b) because it addresses attorney misconduct in its published portion; and c) because Mike and Marc represented Defendants in their successful response to Plaintiff/Appellant’s appeal. Martinez v. O’Hara, et al., G054840 (4^th Dist. Div. 3 February 28, 2019) (published in part). Justice Fybel, Acting. P.J., authored the opinion, joined by Justices Ikola and Thompson.

Attorney’s Fees.

       In the trial court, Plaintiff sought $500,000 in damages for various claims, including waiting time penalties, harassment, and fraud. After years of litigation and a five-day jury trial, Plaintiff received a jury award of $1,080 in economic damages and $7,000 in noneconomic damages – an amount well below the ceiling of limited civil jurisdiction ($25,000). Plaintiff requested attorney’s fees based on a calculation of approximately $414,407 in fees, and asked the trial court for 1/3^rd of that amount plus costs.

      The trial court did not award attorney’s fees, spelling out its reasoning in a detailed minute order. The trial court found Chavez v. City of Los Angeles, 47 Cal.4^th 970 (2010) to be dispositive on FEHA-based claims for an over-litigated case. The trial court also found the amount of fees being sought to be based on very unreliable information, including after-the-fact reconstruction of records, block billing, 25-hour and 15-hour workdays that strained the court’s credulity, and a declaration lacking specificity. The case did not result in broad public impact or in significant benefit to anyone other than Plaintiff. The trial judge described “fruitless litigation” that was “spectacularly unsuccessful.” The Court of Appeal concluded that the trial court acted within its discretion and reasonably by deciding against an award of fees.

       The Court of Appeal also concluded that the trial court did not prejudicially err by denying the motion for attorney fees under Labor Code section 218.5. This statutory provision allows the employee to obtain fees for prevailing on a wage claim. Plaintiff, who recovered some waiting time penalties, argued the trial court erred by concluding he was not eligible as a prevailing party to recover fees because the waiting-time penalties do not constitute “wages”.

       The Court of Appeal did not address this legal argument, concluding that even if the trial court so erred, on this record, any such error was harmless. The trial court found the billing records unreliable, the Plaintiff failed to explain how much of the fees were attributed to the “wage claim”, and the overall recovery was well below the amount recoverable in a limited civil case.

       This part of the opinion was unpublished, evidently because it was unremarkable.

Attorney Misconduct.

        The conduct of Plaintiff’s attorney, however, resulted in publication: “The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period. ¶ We also report Mr. Pavone to the State Bar for the statement in the notice of appeal suggesting the trial court attempted to thwart service of the signed judgment on plaintiff in an effort to evade appellate review and statements in the appellate briefs he signed on behalf of plaintiff accusing the judicial officer who ruled on the motion for attorney fees of intentionally refusing to follow the law. None of these serious charges is supported by any evidence.”

        COMMENT. The published part of the opinion serves as a reminder that attorneys have a duty to maintain the respect due to the courts of justice and judicial officers. Business and Professions Code section 6068(b). Also, Canon 3B(6) of the California Code of Judicial Ethics provides that lawyers in proceedings before the judge must refrain from manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, and a number of other categories. Canon 3D(2) of the California Code of Judicial Ethics imposes on judges mandatory reporting requirements to the State Bar regarding lawyer misconduct. While these requirements might sound imposing, Mike and Marc observe that in our combined 75 years of practice, we have not seen attorneys who exercise civility and common sense land themselves in this ethical quagmire.

        Finally, a shout-out goes to San Diego attorney Grant Teeple, who handled this case in the trial court, establishing a good record for his client on appeal.

    UPDATE: Martinez v. O’Hara is also the subject of a post on Kevin Underhill’s Lowering the Bar blog.