In A 2-1 Opinion, Majority Holds The Federal Standards Are Inconsistent With The State Standard Giving The Trial Judge The Power To Adjudge Based On His/Her Experience.
We were wondering when an appellate court would take on a split in intermediate appellate thinking on whether across-the-board reductions for unreasonable padding, duplicative work, and unnecessary attorney work could be made or faced heightened scrutiny based on reasoning imported from certain federal cases. One line of cases, Warren, Snoeck, and Kerkeles, found heightened scrutiny of such reductions was necessary, relying primarily on federal civil rights cases. The other line of thinking was embodied in Morris, declined to allow this importation of federal law. The day has now arrived because Cash v. County of Los Angeles, Case No. B336980 (2d Dist., Div. 5 May 30, 2025) (published) has tackled this issue, with the majority refusing to import the federal law (author was Presiding Justice Hoffstadt and concurrence by Justice Kim) and with a dissent penned by Justice Baker going the other direction.
Cash involved a plaintiff winning FEHA and Labor Code whistleblower claims against Los Angeles County through a $450,000 jury verdict. Plaintiff then requested $735,310 in attorney’s fees inclusive of “fees on fees.” County opposed, arguing among other things that the award be reduced by at least 30% due to excessive and duplicative billing. The lower court awarded $455,546 in fees, which included a 30% across-the-board reduction for duplication/excessiveness after making some preliminary reductions.
The majority sided with the Morris approach rather than the Warren/Snoeck importation of heightened scrutiny standards, validating the use of across-the-board reductions when judiciously made. Otherwise, the lower court’s ability to fashion fee awards based on its own experience was put at risk.
The dissent saw things differently, although Justice Baker did acknowledge the split in intermediate appellate thinking and suggested the case was a good candidate for state supreme court review. He also acknowledged that lower courts can make across-the-board reductions when confronted with a voluminous fee motion. However, the dissent liked the Warren approach in situations where a lower court uses a meat cleaver rather than a slicing knife when faced with a voluminous, detailed fee petition. Justice Baker included a footnote which limited his analysis to situations where there was detailed billing support, with lesser showings justifying an across-the-board reduction without a heightened explanation. In the end, the dissent wanted more of an explanation given that the amount of fees is guided by a deferential abuse-of-discretion standard. Interestingly, Justice Baker reasoned that the majority needed to examine the billing statements to justify the 30% reduction, which he believed the majority did not do to achieve “at least a modicum of proportionality.”
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