Plaintiff’s $2 Million Request, Inclusive Of A 2.0 Positive Multiplier, Did Not Gain Traction.
Partial success and high hourly rates can often lead to reductions and rejection of a multiplier in contingency-driven cases under FEHA. That is what basically occurred in Do v. Raytheon Co., Case No. B293950 (2d Dist., Div. 4 Oct 27, 2020) (unpublished).
A FEHA plaintiff obtained a total $1.75 million compensatory/punitive damages award against his employer, prevailing on two out of eight claims. Plaintiff then moved to recover close to $2 million in attorney’s fees under a FEHA shifting statute, $55,322.29 in expert witness fees, and other routine costs. At the end of the day, the lower court awarded $695,000 in attorney’s fees, no expert witnesses fees, and some routine costs (taxing some messenger, mock trial, and jury consultant expenses).
All of these determinations were affirmed on appeal. No multiplier was justified, despite this being a contingency matter, because high hourly rates were being requested and plaintiff did not prevail on a significant number of claims. Decreasing the fee claim for partial success was totally acceptable under California law, with the reduction off of the lodestar amount (around 20%) being okay. Expert witness fees were properly denied because the experts did not testify at trial, such that they were not presumptively necessary or reasonable. Finally, CCP § 1033.5 reasonableness requirements do govern FEHA costs requests, with the lower court’s discount of certain routine requests—messenger, mock trial, and jury consultant expenses—not being an abuse of discretion.
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