2/3 DCA Agreed With The Reasoning In Karton.
More and more, we are seeing appellate opinions, whether published or not, stressing the need for civility among attorneys in litigation cases. In fact, there are proposals being considered which would require that California attorneys, annually, have to reaffirm their oath and to confirm they will act with civility. In Karton v. Ari Design & Construction, Inc., 61 Cal.App.5th 734, 747 (2021), the 2/8 DCA held that incivility can allow a lower court to reduce a fee request, with it being an “incentive for counsel in fee-shifting cases to know their own low blows may return to bite them in their pocketbook.”
Karton was followed and endorsed by the 2/3 DCA in Snoeck v. ExakTime Innovations, Case No. B321566 (2d Dist., Div. 3 Oct. 2, 2023) (unpublished).
There, a FEHA disability discrimination plaintiff won $130,080 in damages on one out of six causes of action for defendant’s failure to engage in an interactive process. The lower court took the lodestar request and initially made a 20% reduction for overstaffing, duplicative, and vague entries but increased the fee request by a 1.2 positive multiplier, decisions not challenged on appeal. The lower court then applied a .40 negative multiplier to the adjusted lodestar of $1,144,659.36 based on plaintiff’s counsel’s incivility through the litigation, attacking defense counsel and belittling the court. That resulted in an ultimate fee award of $686,795.62. The appellate court found the reduction to be no abuse of discretion, determining that an “incivility reduction” was completely proper when the record shows (as it did to the reviewing court) that counsel engaged in incivility. To us bloggers, this stresses an important theme in fee requests—the requesting attorney’s credibility is paramount, difficult to restore when unreasonable fee requests are presented for resolution or litigation counsel went out of bounds in his or her conduct before the lower court.
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