Employment, Reasonableness Of Fees, Section 998: FEHA Plaintiff Finally Winning $1.25 Million In a Third Jury Trial, After An Earlier Appellate Reversal On The First Trial And A New Trial On The Second Trial, Was Properly Awarded $3,264,906 In Fees

Both Sides Appealed, But Their Challenges Were Unsuccessful.

               Simers v. Los Angeles Times Communications LLC, Case No. B323715 (2d Dist., Div. 8 Aug. 30, 2024) (published) involved a long-standing dispute between plaintiff T.J. Simers, a controversial columnist, and defendant L.A. Times involving constructive termination, age discrimination, and disability discrimination claims under FEHA.  Needless to say, there were three jury trials producing this chronology:  (1) a first jury trial resulted in over $7.137 million in damages, which was reversed and remanded on appeal for a new trial; (2) a second jury trial resulted in an award of $15.4 million in noneconomic damages, with the lower court granting a new trial on that result; and (3) a third jury trial resulted in a noneconomic damages verdict of $1.25 million, even though this matched an identical defense CCP § 998 offer for that amount plus reasonable pre-offer fees and costs to be determined by the lower court (a rejected offer).  Plaintiff requested attorney’s fees of $15.5 million (lodestar plus a 2.0 multiplier) involving time on all three trials and the appeals after the first trial.  The defense raised various objections, some of which were credited, eventually resulting in an award to plaintiff of $3,264,906 in attorney’s fees.  (Plaintiff was awarded $210,882.22 in costs, but that award was not contested on appeal.)  Both sides appealed, defendant claiming the award was excessive, and plaintiff contending the section 998 offer did not cut-off post-offer fees.

               The 2/8 DCA opinion, authored by Justice Grimes, affirmed the fee determinations. Here are the takeaways on this appeal, which did involve unique circumstances (mainly the multiple new trials):

• • • The lower court did possess considerable discretion to allow or disallow (or go within those two extremes) fees for the second trial and appeal even though a new trial was granted for attorney misconduct—the trial judge does not have to disallow all fees requiring a third trial if the penalty for misconduct is too harsh with respect to a fee award.
    • The second trial was related sufficiently to the overall result such that it could be compensable.
    • Plaintiff’s work on the unsuccessful appeal from the first trial verdict was compensable in the lower court’s discretion.
    • The defense 998 offer did cut off attorney’s fees and costs after the rejected, successful 998 offer was borne out to match plaintiff’s ultimate recovery.