Civil Rights: Fee Recovery For Prevailing FEHA Plaintiff Reversed Because He Should Have Been Allowed The Hourly Rate Of His Los Angeles Attorneys When Inland Local Counsel Could Not Have Been Obtained

On Remand, Lower Court Also Needs To Reexamine Its Multiplier Analysis In Tandem With Rewarding Higher Hourly Rates.

            Caldera v. Dept. of Corrections and Rehabilitation, Case Nos. G057343/G057478 (4^th Dist., Div. 3 Apr. 30, 2020) (published) is a case where our local Santa Ana appellate court reviewed a FEHA attorney’s fees award to plaintiff’s Los Angeles attorneys where the case was venued in the Inland Empire (San Bernardino County).  It discusses lodestar and multiplier principles which are somewhat distinct under the FEHA fee-shifting statute.

            Plaintiff was a prison correctional officer who sometimes stuttered, filing a FEHA lawsuit against the California Department of Corrections and Rehabilitation and his supervisor, a lawsuit which had a protracted history—including two prior appellate decisions along the way after plaintiff won a $500,000 jury verdict in noneconomic damages despite a defense “highest” pre-trial offer of $70,000.  He had to turn to Los Angeles attorneys because no local San Bernardino attorney would take it under a contingency arrangement.  Plaintiff then filed a FEHA fees request for work spanning nearly a decade, namely, the jury work and two appeals.  Plaintiff requested $2,468,365 in fees (inclusive of a positive 2.0 multiplier), with the lower court—after various adjustments—awarding $810,067.50 in fees (no multiplier, but weighing some of those factors on the lodestar calculation).

            Unhappy with the fee result, plaintiff appealed.  Good thing.

            One main thing led to reversal:  reduction of hourly rates for plaintiff’s Los Angeles attorneys when the lower court held them to much lower Inland Empire hourly rates.  The principal problem was that plaintiff showed his use of L.A. attorneys with higher hourly rates was justified because local counsel could not be secured to vindicate his FEHA rights, such that L.A., not San Bernardino, rates applied.  (Center for Biological Diversity v. County of San Bernardino, 188 Cal.App.4^th 603, 619; Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4^th 359, 397, 399 (2005).)  But that was not all; because, after all, this was a contingency case.  The appellate court recognized that lodestar and multiplier factors cannot overlap, but did want the trial judge to revisit for purposes of seeing if the contingency multiplier factors might need to be reweighed on remand.

            Acting Presiding Justice Moore authored the 3-0 panel decision.