However, Denial Of Expert Fees Remanded Because Trial Judge May Have Believed He Had No Discretion To Award.
Herron v. County of Los Angeles, Case No. B295184 (2d Dist., Div. 7 Dec. 8, 2021) (unpublished) is an interesting case which shows how trial judges have wide discretion in awarding attorney’s fees of a reasonable amount with respect to hourly rates, activities in the litigation, degree of success in the litigation, and comparison to other attorney efforts in other like kind cases.
In Herron, a plaintiff sought to recover $2 million from County, but only won 10% of his claims to the tune of a jury verdict of $200,000. Under FEHA, plaintiff’s counsel moved for a fee award of over $2.1 million (inclusive of a 2.0 positive multiplier) and for costs of $121,000 (including expert witness expenses). The trial judge awarded counsel $320,000 in fees and $28,472.58 in costs (awarding no expert witness fees). The 2/7 DCA affirmed the fee award, but it reversed and remanded on the expert witness fee denial.
The lower court reduced lead counsel’s requested $600 hourly rate to $500 based on that attorney being a solo practitioner and previously never being awarded $600 as an hourly rate. The appellate court found no flaw with this analysis. The trial judge also reduced by quite a bit the hours being requested because of overlitigation, limited success, and comparison of hours the presiding jurist had seen in a more complicated employment case by another experienced lawyer in that other matter. The Court of Appeal found that consideration of these factors was proper, especially the comparative analysis to the activities spent by an employment lawyer in a different FEHA case. (See, e.g., Stratton v. Beck (2017) 9 Cal.App.5th 483, 496 [finding no abuse of discretion in court setting attorney’s hourly rate based on comparison of rates from similarly experienced attorneys in same field and area]; Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783 [affirming award where “the hourly rates allowed by the trial court are within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work”].) Finally, given an express finding that the case was not exceptional in nature, awarding no multiplier was within the trial judge’s discretion.
However, the refusal to award expert fees was reversed because FEHA, unlike the routine costs statute, does allow a lower court discretion to award them, with no limitation that the experts had to be ones appointed under court order. A further examination was in order.
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