CALIFORNIA ATTORNEY'S FEES

Civil Rights, Costs: In Mixed FEHA/Non-FEHA Action, Costs Properly Assessed Against Nonprevailing Plaintiff

Although FEHA Case Was Not Frivolous, Costs Allowable On Non-FEHA Claims.

            Even though a losing FEHA plaintiff only gets tagged with routine costs if plaintiff’s case is frivolous, that does not mean that plaintiffs in all actions do not face exposure, which is the situation when non-FEHA claims are involved.

            Obi v. L.A. County Sheriff’s Office, Case No. B296553 et al. (2d Dist., Div. 2 Aug. 18, 2020) (unpublished) illustrates the point.  In that appeal, a plaintiff suffered an adverse summary judgment in a case with mixed FEHA and non-FEHA claims.  The trial court awarded the defense $13,191.95 in routine costs although finding that the FEHA claims were not frivolous in nature.  The appellate court affirmed the costs award because costs are recoverable with respect to non-FEHA claims, and nothing showed that the awarded costs were not incurred on all the mixed claims.  In its reply brief, plaintiff tried to challenge costs not contested in the motion to tax costs, but the 2/2 DCA said that was waived by not moving to tax them in the previous motion before the trial judge.

Civil Rights: $819,335 FEHA Fee Award Stood After Appellate Court Affirmed $250,000 Emotional Distress Compensatory and $1.95 Million Punitive Damages Awards In Favor Of Plaintiff

Case Illustrates How FEHA Fee Awards Can Be Substantial For Prevailing Plaintiffs.

            FEHA has a pro-plaintiff fee shifting statute.  When plaintiffs prevail under this statute, the fee awards can be quite substantial.

            Albarracin v. Fidelity National Financial, Inc., Case No. B292895 (2d Dist., Div. 3 Aug. 13, 2020) (unpublished) illustrates this point well.  There, a plaintiff suing predominantly on FEHA sexual harassment charges won a $250,000 compensatory damages jury verdict (mostly for emotional distress) and a $1.95 million punitive damages verdict.  (The main defendant had $662 million in after-tax profits for the relevant year.)  The trial judge later awarded plaintiff $819,335 in attorney’s fees under the FEHA fee-shifting statute.  The defense unsuccessfully contested the merits on appeal, such that the substantial fee award stood also—again demonstrating how the fee awards for successful FEHA plaintiffs can be quite large in nature.

Civil Rights, Special Fee Shifting Statute: Water District Correctly Denied CCP § 1038 And FEHA Fees Against Non-Prevailing Plaintiff Who Was Represented When Civil Rights Suit Was Filed And Did Not Contest Defense Dispositive Motion

No Evidence That Case Was Filed Or Maintained For An Improper Purpose.

            In Fong v. Eastern Municipal Water Dist., Case No. E071088 (4^th Dist., Div. 2 July 16, 2020) (unpublished), plaintiff—through an attorney—filed a complaint alleging illegal recording Penal Code and FEHA claims.  Her attorney withdrew from the case, and the defense filed an unopposed summary judgment motion.  Later, after entry of judgment, defendant Water District sought to recoup prevailing party attorney’s fees under CCP § 1038 and FEHA’s fee-shifting statute (Gov. Code § 12965(b)).  The lower court denied the fees request.

            The 4/2 DCA affirmed, specifically based on the particular circumstances at play.

            CCP § 1038 allows public entities to obtain fees for a frivolous civil action under the California Tort Claims Act after a defendant prevails on a summary judgment, directed verdict, or nonsuit motion.  FEHA only allows discretionary fees if the non-prevailing plaintiff had no objective belief for believing plaintiff’s case had potential merit. 

            On the § 1038 request, the statute required a fee motion before entry of judgment, which did not occur despite some ambiguity in the statutory language—so, it was untimely.  (Gamble v. Los Angeles Dept. of Water and Power, 97 Cal.App.4^th 253, 258-259 (2002).)  With respect to the FEHA fee request, plaintiff filed the suit when she was attorney represented and did not put up any obstacles to a dispositive motion during the prosecution phase of the case—these circumstances did not show bad faith. 

Civil Rights, Multipliers: Lower Court Properly Denied Prevailing FEHA Plaintiff’s Request For A 2.0 Positive Multiplier

Grant Of Full Lodestar Request Was The Main Reason For Refusing Multiplier, A Determination Affirmed On Appeal.

            A plaintiff prevailed on FEHA claims against defendant in Scudder v. Dept. of Transportation, Case No. B293859 (2d Dist., Div. 5 July 14, 2020) (unpublished).  Plaintiff then moved for attorney’s fees in a lodestar amount of $592,075 augmented by a positive 2.0 multiplier because the case was taken on a contingency basis and it supposedly took a large portion of the small prosecuting firm’s time.  The trial judge awarded the full lodestar request, but he denied the multiplier request.  He did so because the case was not exceptionally complex (involving one plaintiff), no exceptional skill was displayed in prosecuting the matter, no specific facts were shown to demonstrate preclusion from other employment, and the lodestar grant fully compensated plaintiff’s attorneys for the time they expended.

            The 2/5 DCA affirmed.

            First of all, the appellate court found there was an inadequate record because no reporter’s transcript or agreed/settled statement on the hearing was presented for review such that there was no presumption the trial judge failed to consider the proper factors in coming to a multiplier denial decision.  (We have posted on this point many times before; where failure to consider factors or discretion is involved, it is imperative to have some type of record on what happened at a fee hearing.)  However, even on the merits, the trial judge was not required to grant a multiplier—with the available record vindicating his reasoning (especially given that the full lodestar award compensated attorneys for their work effort). 

Civil Rights: Petitioner’s Neighborhood Association/Resident’s Trial Court Victory Under The California Voting Rights Act And California Constitution Was Reversed As A Matter Of Law

That Means That Petitioner’s Motion To Recover Fees Of $22 Million Under A One-Way Fee Shifting Statute Went Bye-Bye.

            Petitioner’s neighborhood association and a resident, in Pico Neighborhood Assn. v. City of Santa Monica, Case No. B295935 (2d Dist., Div. 8 July 9, 2020) (published), had successfully sued Santa Monica when a lower court ruled that the city’s at-large voting system to elect city council members discriminated against Latinos both under the California Voting Rights Act (CVA) and California Constitution.  In fact, the lower court ordered city to switch to a district-based voting system.  CVA, in Elections Code section 14030, has a one-way fee-shifting statute in favor only of prevailing plaintiffs, while routine costs are awardable to prevailing plaintiffs and to prevailing defendants, but to defendants only where the matter is deemed frivolous or the like.  After their win, Petitioner had a pending request for attorney’s fees and cost of about $22 million against City.

            Well, fee/cost exposure—for now—is no more worry for the City.  The 2/8 DCA reversed the lower court judgment as a matter of law and awarded costs to City.  Total reversal of fortune.

Civil Rights, Costs, Substantiation Of Reasonableness Of Fees, Reasonableness Of Fees: Except For Correction Of Routine Costs Math, FEHA Fee Award Of About $1.1M And Almost $107K In Costs Affirmed On Appeal Where Plaintiff Won $650K In Damages

Limited Success/Allocation Fee Challenges Rejected On Appeal; Expert Witness Fees Can Be Sought Through A Costs Memorandum. 

            In Abarca v. Citizens of Humanity, LLC, Case No. B290090 (2d Dist., Div. 3 June 18, 2020) (unpublished), a FEHA plaintiff won a jury verdict on disability discrimination/retaliation claims, although losing two other claims, to the tune of compensatory and punitive damages totaling $650,000 ($550,00 of which were punitive damages).  Plaintiff’s attorneys, under a liberal FEHA fee-shifting statute, moved to recover a fee lodestar of $1,652,255 plus a 2.0 positive multiplier (total fee request of $3,304,510) as well as costs of $142,299.92 (a lot of which were for depositions, expert witness fees, models/blowups, etc.).  In the end, the trial judge awarded $1,084,160 in fees after reducing hourly rates and denying the multiplier request and also awarded costs of around $116,000.

            The appellate court affirmed everything, except to modify routine costs down to about $107,000 based on some transparent math errors.

            The defense attacked reliance on reconstructed time, but this was a credibility determination for the lower court below.  As far as limited success or apportioning fees on unsuccessful claims, the appellate court found that (1) the $650,000 verdict was not limited success given that the defense only offered to initially settle the case for $149,999.99; and (2) the intertwined unsuccessful claims were not a reason to reduce the fee under the particular circumstances of the case.  With respect to routine costs, a lot of the defense opposition centered on whether expert fees needed to be claimed by noticed motion versus a cost memorandum, with plaintiff claiming through a cost memorandum.  As we see it, the appellate court seemed to endorse the view, based on an analogous CCP § 998 situation, that these fees could be claimed through a cost memorandum (Jonkey v. Carignan Construction Co., 139 Cal.App.4^th 20, 27 (2006), especially given no procedural specification under the FEHA cost-shifting statute to the contrary.  However, there was no need to really confront the issue, because no prejudice was shown—the defense did oppose the costs through a motion to tax with full briefing by everyone.  As far as models, blowups, and exhibit photocopies, courtroom technology has become more commonplace and less expensive such that earlier cases where the costs were exorbitant were not persuasive.  (Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 991 (2013).)  Everything affirmed, except for the appellate court to correct some minor arithmetic errors. 

Civil Rights: Fee Recovery For Prevailing FEHA Plaintiff Reversed Because He Should Have Been Allowed The Hourly Rate Of His Los Angeles Attorneys When Inland Local Counsel Could Not Have Been Obtained

On Remand, Lower Court Also Needs To Reexamine Its Multiplier Analysis In Tandem With Rewarding Higher Hourly Rates.

            Caldera v. Dept. of Corrections and Rehabilitation, Case Nos. G057343/G057478 (4^th Dist., Div. 3 Apr. 30, 2020) (published) is a case where our local Santa Ana appellate court reviewed a FEHA attorney’s fees award to plaintiff’s Los Angeles attorneys where the case was venued in the Inland Empire (San Bernardino County).  It discusses lodestar and multiplier principles which are somewhat distinct under the FEHA fee-shifting statute.

            Plaintiff was a prison correctional officer who sometimes stuttered, filing a FEHA lawsuit against the California Department of Corrections and Rehabilitation and his supervisor, a lawsuit which had a protracted history—including two prior appellate decisions along the way after plaintiff won a $500,000 jury verdict in noneconomic damages despite a defense “highest” pre-trial offer of $70,000.  He had to turn to Los Angeles attorneys because no local San Bernardino attorney would take it under a contingency arrangement.  Plaintiff then filed a FEHA fees request for work spanning nearly a decade, namely, the jury work and two appeals.  Plaintiff requested $2,468,365 in fees (inclusive of a positive 2.0 multiplier), with the lower court—after various adjustments—awarding $810,067.50 in fees (no multiplier, but weighing some of those factors on the lodestar calculation).

            Unhappy with the fee result, plaintiff appealed.  Good thing.

            One main thing led to reversal:  reduction of hourly rates for plaintiff’s Los Angeles attorneys when the lower court held them to much lower Inland Empire hourly rates.  The principal problem was that plaintiff showed his use of L.A. attorneys with higher hourly rates was justified because local counsel could not be secured to vindicate his FEHA rights, such that L.A., not San Bernardino, rates applied.  (Center for Biological Diversity v. County of San Bernardino, 188 Cal.App.4^th 603, 619; Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4^th 359, 397, 399 (2005).)  But that was not all; because, after all, this was a contingency case.  The appellate court recognized that lodestar and multiplier factors cannot overlap, but did want the trial judge to revisit for purposes of seeing if the contingency multiplier factors might need to be reweighed on remand.

            Acting Presiding Justice Moore authored the 3-0 panel decision.

Civil Rights: Plaintiff Losing Intertwined Labor Code § 1102.5/FEHA Claims Was Properly Not Assessed With Attorney’s Fees Under FEHA And Was Improperly Assessed With Routine Costs As Against Los Angeles County

Costs Award Reversed Because Intertwined Claims Were Not Frivolous In Nature.

            If a trial judge finds that a plaintiff’s FEHA case is not frivolous in nature, a defendant faces large odds to gain an award of attorney’s fees and costs.  Hays v. County of Los Angeles, Case No. B291542 (2d Dist., Div. 7 Mar. 26, 2020) (unpublished) illustrates well this commentary.

            Plaintiff suffered an adverse summary judgment motion in a mixed Labor Code § 1102.5 retaliation and FEHA suit against former employer County of Los Angeles.  The trial judge denied County’s bid for $303,857.94 in attorney’s fees/costs under FEHA, after finding the case was not frivolous in nature.  However, the lower court did award $15,644.44 out of $20,740.44 in routine costs.

            The fee denial was affirmed based on the trial court’s conclusion that the case was not frivolous in nature.  However, the costs award had to be reversed based on County’s concession that the Labor Code/FEHA claims were “indistinguishable” such that the non-frivolity finding translated into a conclusion that routine costs were not awardable under Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97, 114-115 (2015). 

Civil Rights: Younger-Based Dismissals Can Give Rise To Attorney’s Fees Exposure Against Civil Rights Plaintiffs And In Favor Of Defendant Counties

County Was Awarded $101,174.40 In Fees And $1,259.60 In Costs Under Section 1983 As Against Losing Plaintiff.

            The Ninth Circuit in Citizens for Free Speech, LLC v. County of Alameda, No. 18-16805 et seq. (9^th Cir. Mar. 24, 2020) (published), found that civil rights case dismissals under Younger v. Harris, 401 U.S. 37 (1971) abstention doctrine can lead to an award of attorney’s fees in favor of a prevailing governmental agency and against a losing civil rights plaintiff under section 1983, finding that its blanket prohibition otherwise in Elwood v. Drescher, 456 F.3d 943, 948 (9^th Cir. 2006) was no longer good law.  However, a Younger-based dismissal does not always lead to fee exposure, unless the dismissal materially altered the parties’ legal relationship as it did in this case.  The dismissal allowed the County to continue its abatement proceeding to enforce a billboard ordinance, such that the governmental parties clearly prevailed, resulting in affirmance of the $101,174.40 in fees and $1,259.60 awarded against plaintiff because the suit was frivolous/unreasonable in nature. 

Civil Rights: 9th Circuit Holds 90% Discount Of Fees In Civil Rights Case Will Require Further Explanation By Trial Judge

Court Majority Believed "Punishing" Attorneys For An Initial High Demand By Slashing Fees Would Lead To "Perverse Incentives."

        A steep 90% discount of a senior litigator's fees led a panel majority of the 9th Circuit to demand further explanation from the trial judge. Vargas v. Howell, No. 18-15513 (9th Cir.  2/5/20) (maj: Miller, Watford; dsst: Benitez). Judge Alex Kozinski wrote in Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008), that "the district court can impose a small reduction, no greater than 10 percent — a "haircut" — based on its exercise of discretion and without a more specific explanation." In Vargas, the very large discount triggered a demand by the 9th Circuit for more explanation by the trial judge.

        The Court of Appeals disapproved of a "mechanical" approach to fees that discounted fees by 90% because the civil rights plaintiff only received 10% in settlement of his original claim. It suggested that such an approach, which "punished" the attorneys for stating a high initial demand, could lead to "perverse incentives" in civil rights cases: encouraging civil rights attorneys to make modest initial demands, and increasing demands as litigation continues, making it harder to settle cases. However, starting high can be a sensible negotiation strategy for plaintiff attorneys, giving them flexibility and the ability to make concessions in order to reach a favorable result. While a significant discount can be justified by poor results, here, the settlement amount of $99,999 was more substantial than nuisance value, and the court had not issued any rulings that doomed a successful outcome for plaintiff.

           Two other issues in the case were readily dispatched. First, the trial judge was within his discretion to reduce fees of a PI attorney who had co-counseled. Second, a law firm that sought fees for plaintiff, based on work done earlier by two attorneys who later joined the law firm, could do so, because ultimately fee entitlement belonged to the plaintiff, not to the attorneys.

        District Judge Roger Benitez, dissenting, believed the trial judge's explanation for the 90% fee reduction to a senior litigator was adequate, because the trial judge had spent several pages analyzing some but not all of the 12 Kerr factors, named after the case adopting the multi-factor test as guidelines for fee evaluation within the 9th Circuit. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Judge Benitez worried Vargas will increase the writing burden for trial judges, without clarifying how much they must do to provide an adequate explanation for a fee discount.

        Co-contributor Marc has authored an article about Vargas in today's February 7, 2020 Daily Journal, entitled 'Mechanical' analysis of attorney fees award in civil rights case results in partial reversal'. (The Daily Journal is behind a paywall. Oh well). Marc also has a blog post today, 2/7/20, on the California Mediation and Arbitration blog.

Civil Rights, Costs: Winning FEHA Plaintiff Properly Awarded $64,356 In Expert Witness Fees Through Costs Memorandum Procedure

Plaintiff Did Not Necessarily Have To File Noticed Motion Where Trial Court Did Exercise Discretion In Awarding Them Through The Costs Memorandum Process.

            A FEHA plaintiff won a very nice jury verdict of $2 million in compensatory damages and $6.1 million in punitive damages (reduced on appeal to $4.264 million based on a net worth issue) against a defendant for whistleblower retaliation, disability discrimination, medical leave discrimination, wrongful termination, and intentional infliction of emotion distress.  The trial judge also awarded plaintiff $64,356 in expert witness fees after plaintiff filed a costs memorandum objected to by the defense but granted nonetheless by the lower court.   (FEHA allows these types of expert witness fees to prevailing plaintiffs in the discretion of the lower court.)

            The 2/7 DCA, in Joseph-Mitchell v. SEIU Local 721, Case No. B289210 (2d Dist., Div. 7 Jan. 8, 2020) (unpublished), affirmed.  Interpreting Anthony v. City of Los Angeles, 166 Cal.App.4^th 1011 (2008), the appellate panel concluded that a memorandum of costs or filed motion on FEHA expert witness fees will do the trick, especially where the trial judge did exercise discretion in awarding those fees.   So, a noticed motion was not necessary under the circumstances.

Civil Rights: After Appellate Court Reversed $5 Million Punitive Damages Component OF FEHA Jury Verdict And After Defendants Paid The Trial Level Fee Award, Lower Court Did Not Abuse Its Discretion in Refusing To Award Additional Fees To Plaintiff

$1,037,286 Fee Award Was Paid On Remand From $3.769 Million FEHA Compensatory Verdict.

            Plaintiff in Leggins v. Rite Aid Corp. & Thrifty Payless, Inc., Case No. B290700 (2d Dist., Div. 1 Dec. 20, 2019) (unpublished) had won a FEHA harassment/wrongful discharge verdict against defendants to the tune of $3.79 million in compensatory damages, $5 million in punitive damages, and $1,037,286 in attorney’s fees.  In an earlier appeal, defendants overturned the punitive damages award, with Rite Aid paying the previous attorney’s fees award in full on remand.  Plaintiff moved for additional fees after the earlier appeal, but the lower court refused to grant the request.  The 2/1 DCA affirmed, finding no abuse of discretion in denial of awarding any more fees given that the defendants were successful in knocking out punitive damages.  Plaintiff’s attorneys still obtained about 27% of the compensatory award, which was not a bad pay day in the appellate panel’s view. 

Civil Rights: Lower Court’s Denial Of Attorney’s Fees Under 42 U.S.C. § 1988 Was Reversed Because Substantial Federal Civil Rights Claims Alleged And Plaintiff Prevailed On Factually-Related Non-Civil Rights Claim Of Merit

Key Decision For Civil Rights and Municipal Attorneys To Read!

            Beames v. City of Visalia, Case No. F075855 (5^th Dist. Dec. 19, 2019) (published) is key reading for civil rights and municipal practitioners on attorney’s fees entitlement under 42 U.S.C. § 1988.

            What happened in this case is that plaintiff/petitioner obtained superior court relief from a zoning hearing officer determination on a commercial property dispute where legalization of a business and a different problem had to be resolved.  City, unfortunately, did not budge, the zoning administrative officer did not budge, but the trial court did do so by granting relief (not insubstantial in nature from a pragmatic perspective), although denying plaintiff’s request for fees under the federal civil rights statute as well as California’s private attorney general statute.

            This fee denial got reversed, in somewhat emphatic fashion. 

            Although plaintiff did not prevail on the federal civil rights claims, plaintiff did on a state law claim in no small degree after City failed to crater at all.  The problem was that the reasoning in Filipino Accountants Assn. v. State Bd. of Accountancy, 155 Cal.App.3d 1023, 1032 was really case determinative, because plaintiff did plead a substantial, non-federal civil rights claim and because plaintiff ultimately prevailed on a factually intertwined, non-civil rights claim.  Given the liberal construction in the federal civil rights arena, the other arguments—no public interest and limited success—did not resonate based on the total circumstances of record.  So, the matter was remanded to consider plaintiff’s fees under § 1988, not the private attorney general statute because this basis was forfeited on appeal.

Civil Rights: Second District Affirms $46,800 Attorneys’ Fees Award Against Unsuccessful Whistleblower Plaintiff

A Lawsuit Brought In Bad Faith With Several False Statements In His Complaint Sealed The Deal For This Plaintiff.

            In Marciano v. City of Los Angeles, Case Nos. B287477 and B288907 (2d Dist., Div. 8 November 4, 2019) (unpublished), two police officers brought a whistleblower lawsuit against the City of Los Angeles claiming retaliation for reporting that they were subjected to an unlawful ticket quota.  After deposition testimony revealed that several statements made in their complaint were untrue, one of the plaintiff officers dismissed himself from the lawsuit.  Afterward, the City filed a motion for summary judgment against the remaining officer.  During a meet and confer one month later, City informed the remaining plaintiff officer that it seek to recover attorney fees under Code Civ. Proc. section 1038 should he continue to pursue his claim.  Instead of dismissing his suit, the officer filed his opposition to City’s motion for summary judgment.  After oral argument, the trial court ruled in City’s favor on the summary judgment motion based on the officer’s failure to show two of the three required grounds, under Labor Code section 1102.5, for a whistleblower retaliation case - (1) that City’s acts subjected him to adverse employment actions; and (2) that he failed to establish causation.

            City then successfully moved for $46,800 in attorneys’ fees.  The officer appealed both the summary judgment grant and the attorneys’ fees award.

            The 2/8 DCA affirmed.  First, the officer had forfeited his challenge against the trial court’s grant of the summary judgment by failing to address the trial court’s ruling on the causation issue in his opening brief.  Because the officer forfeited his challenge to the trial court’s ruling on causation, the 2/8 DCA did not have to make a decision regarding his challenge against the trial court’s ruling on adverse employment actions.

            As to attorney fees, Code Civ. Proc. section 1038(a) allows for the award of attorney fees against an unsuccessful plaintiff if the action was brought without reasonable cause and good faith.  Here, the 2/8 DCA found substantial evidence showed that the officer did not bring his action in good faith, and therefore did not have to address the reasonable cause issue.

Allocation, Civil Rights, Employment: No Abuse Of Discretion Where Trial Court Held Employer And VP Jointly And Severally Liable For Attorney Fees With No Apportionment Nor Statutory Fees Cap For CMIA Claim

Former Employee Achieved Her Litigation Objectives With Set Of Facts Common To All Causes Of Action.

            In Gwin v. Natvan, Case No. B292990 (2d Dist., Div. 1 October 1, 2019) (unpublished), former employee sued employer and its vice-president (husband of employer’s owner) asserting 13 separate causes of action – several of which allowed her to recover reasonable attorneys’ fees if she prevailed. 

            After phase 1 of a bifurcated bench trial, the trial issued tentative rulings finding in former employee’s favor on 9 of 10 causes of action against employer, and 2 of 11 claims against VP.  The parties then settled before the remaining issues were tried.  The settlement agreement included $170,000 payable by employer and VP, employer’s and VP’s guarantee of the settlement payment, and it preserved attorney fees claim for later resolution through motion practice.

            Former employee then moved for an attorneys’ fee award of $1,214,340, which included $821,940 in lodestar fees and multiplier fees of $392,400.  The trial court awarded the lodestar with no multiplier, “as reasonable and warranted” without further explanation, against employer and VP jointly and severally. Employer and VP appealed. 

            VP argued it was error to hold him jointly liable for the full fee award because the tentative ruling exonerated him on most claims – with the only claim for which he was found liable, that provided for an attorneys’ fees award, being the Confidentiality of Medical Information Act (CMIA) claim which puts a $1,000 cap on recovery of attorney fees (Civ. Code § 56.35).   The 2/1 DCA disagreed and, in paraphrasing Yogi Berra, put it this way, “[A] trial ain’t over till it’s over.”  VP was focused on the tentative ruling, but that was not the end of the case, the tentative was never finalized, another phase had yet to be tried, and the parties entered into a settlement agreement wherein employer and VP agreed to payment of settlement proceeds – without allocation or severance of their liabilities – on multiple causes of action in addition to the CMIA claim. Because VP had agreed to be jointly responsible for payment on claims other than the CMIA claim, there was no abuse in discretion holding VP jointly and severally liable for the fees award.

            Both employer and VP argued that the trial court erred by failing to apportion fees between claims for which fees were statutorily authorized and those for which fees were not, and by failing to enforce the statutory fees cap on the CMIA claim.  The 2/1 DCA, again, disagreed – finding former employee’s causes of action to be so intertwined, with her causes of action based on a common set of facts, that apportionment was not required.  As to the $1,000 cap for the CMIA claim, the 2/1 DCA found that section 56.35 did not require apportionment, that employer and VP failed to show that the ultimate fee award would have differed if the CMIA claim were apportioned and capped, and that “[a]pplying the CMIA to limit fees on work inextricably intertwined with other claims on which [former employee] prevailed and would otherwise be entitled to recover attorney’s fees would burden, not encourage, the enforcement of statutory rights.” 

Civil Rights: Florida’s Federal District Courts Split On Whether Prevailing Flood Plaintiffs Can Recover Attorney’s Fees Against Write Your Own Insurance Carriers

Theory Is That Carriers Are An Extension Of FEMA In Remitting Payments So As To Trigger Fee Recovery Under EAJA.

            Back in 2009, the Fifth Circuit in Dwyer v. Fidelity National Prop. & Cas. Ins. Co., 565 F.3d 284, 289 (5^th Cir. 2019) foreclosed recovery of attorney’s fees in coverage litigation by flood plaintiffs against insurance companies arising out of floods arising under the National Flood Insurance Program (NFIP)—a private-public partnership with FEMA by which the carriers remit payments to flood insurance victims.

            However, relying on an Eleventh Circuit decision, three decisions from the Middle District of Florida recently have found attorney’s fees allowable under the Equal Access to Justice Act (EAJA) to prevailing flood victims in insurance coverage suits, founded on the theory that insurance payments were “functionally remitted” through FEMA (the U.S. agency requisite necessary under EAJA).  See, e.g. Lovers Lane LLC v. Wright National Flood Ins. Co., 2019 WL 130362 (M.D. Fla. Jan. 9, 2019); Collier v. Wright National Flood Ins. Co., 2019 WL 1531895 (M.D. Fla. Apr. 9, 2019); Arevalo v. American Bankers Ins. Co. v. Florida, 2019 WL 2476644, at *3 (M.D. Fla. June 13, 2019).  However, the Southern District of Florida has expressly disagreed with and has refused to follow Arevalo in a footnote in Hampson v. Wright National Flood Ins. Co., Case No. 4:19-cv-10093-KMM (S.D. Fla. Aug. 12, 2019).

            Looks like this split likely will have to be decided in future appeals brought before the Fifth and Eleventh Circuit Court of Appeals.

Private Attorney General, Civil Rights: Hawkins Opinion Now Partially Published As To The Discussions On Sufficiency Of Evidence of Retaliation And Award Of Attorney’s Fees Under CCP § 1021.5

September 9, 2019 Unpublished Decision Now Partially Published.

            On September 9, 2019, we posted on then unpublished decision in Hawkins v. City of Los Angeles, which dealt with the Bane Act/Whistleblower Retaliation victories, and $1,054,286.88 attorney’s fees award, obtained by two fired Department of Transportation hearing examiners who had sued the City of Los Angeles.  We can now report that the unpublished decision was certified for partial publication – as to the discussions on sufficiency of evidence of retaliation, and the award of attorney’s fees under CCP section 1021.5 – on September 25, 2019.

Civil Rights, Lodestar, Substantiation Of Reasonableness Of Fees: 9th Circuit Remands Post-Settlement Fee Award In Civil Rights Case For Determination of Reasonable Hourly Rate and Settlement Agreement Date To Determine Fees For Work on Unfiled Motions

There Was Humor Here—Ninth Circuit Agreed Attorney Petitioning For Fees Was Ill-Advised To Put In A Declaration By A Hawaiian Plumber About What The Plumber Charged!

            As you will see, there is some underlying humor simmering in Roberts v. City and County of Honolulu, No. 16-16179 (9^th Cir. Sept. 12, 2019) (published).

            What happened here is that plaintiff settled a civil rights action against Honolulu after trying to settle the matter even before filing a complaint, a factor we bloggers believe was important in the appellate court’s ultimate result.  After a complaint was filed, the parties reached a settlement agreement even though plaintiff’s counsel had begun drafting motions for preliminary injunction/judgment on the pleadings.  Plaintiff moved for attorney’s fees and costs of $40,191.43, which was opposed by Honolulu.  The magistrate recommended an award of $13,912.04 in fees and $400 in costs, after reducing the hourly rates being claimed and reducing for the two unfiled motions.  The district judge awarded $21,302.95, an increase of $7,390.91 from the magistrate judge’s recommendation. 

            The Ninth Circuit vacated and remanded because the correct legal standard was not followed.

            It agreed that the attorney has the responsibility to submit supporting evidence for requested hourly rates.  Plaintiff’s counsel submitted his own declaration, a co-counsel declaration, declarations from other Hawaiian attorneys familiar with counsel’s work, “and an (ill-advised) declaration from a plumber.”  (Tee hee!)  Plaintiff’s lead counsel’s declaration also referred to hourly rates in San Diego, the Laffey Matrix describing D.C. area rates, and the plumber’s affidavit (the inclusion of which was even described as “inexplicable” by the Ninth Circuit panel).  In its award, the district judge ignored this inapt proof but relied on the hourly rates awarded to the two attorneys in other civil right cases in the District of Hawaii.  This reliance was error—examination of prior fee awards was not an acceptable substitute for considering the declarations actually submitted and explaining why those declarations did not establish the prevailing hourly rate in the district.  So, the matter had to be remanded so that the correct legal standard could be applied to the case. 

            With respect to the time spent on the two unfiled motions, the Ninth Circuit panel remanded because it was a “close question” on whether this time should have been compensated given the status of pending settlement discussions. 

            The moral of this one may well be this:  Don’t submit plumber declarations in support of a fee motion!

Private Attorney General, Civil Rights: Plaintiffs’ Bane Act/Whistleblower Retaliation Victories Justified An Award Of Attorney’s Fees Under CCP § 1021.5

$1,054,286.88 Was Fee Award Affirmed Against Los Angeles.

           Two fired Department of Transportation hearing examiners sued the City of Los Angeles under the Bane Act and for whistleblower retaliation, claiming that the City pressured them to change adverse decisions in hearings on parking citations.  They won their claims before a jury which awarded them total compensatory damages of $427,162, with the lower court later awarding them attorney’s fees in the sum of $1,054,286.88.

            City’s appeal of the merits and fee awards were unsuccessful in Hawkins v. City of Los Angeles, Case Nos. B279719/B282416 (2d Dist., Div. 3 Sept. 9, 2019) (unpublished).

            The fee award was justified under CCP § 1021.5, California’s private attorney general statute.  A significant benefit was conferred on the public by a verdict which vindicated the principle that administrative tribunals should be impartial and not have their decisions subject to influence based on municipal revenue concerns.  Fee award affirmed, showing that these types of awards do not have to be proportional at all when there is a substantial benefit conferred on the public in general.

Civil Rights: $3,780 In Attorney’s Fees Against Petitioner Losing Civil Harassment Restraining Order Reversed On Procedural Grounds

Oral Motion For Fees Or Fee Request In Responsive Pleading Before A Hearing Did Not Satisfy The Requirement To Bring Through A Noticed Motion.

            Petitioner losing a civil harassment restraining order was assessed with attorney’s fees under CCP § 527.6 (a fee-shifting provision in this area) to the tune of $3,780 in favor of prevailing respondent.  Petitioner appealed, with the 4/3 DCA reversing on procedural grounds in Sorgente v. Eagen, Case No. G056056 (4^th Dist., Div. 3 Aug. 26, 2019) (unpublished).

            The problem here was that CCP § 1033.5 generally requires a noticed motion for a fees award, with the civil harassment statute (CCP § 527.6) being no exception to this general rule.  (612 South LLC v. Lacone Limited Partnership, 184 Cal.App.4^th 1270, 1284 (2010); see also, generally, Hardie v. Nationstar Mortgage, LLC, 32 Cal.App.5^th 714, 720 (2019).)  Petitioner only sought fees through an oral motion or through a request in a responsive pleading filed right before the hearing.  That did not satisfy the noticed motion requirement such that a reversal was required.

            Presiding Justice O’Leary authored the 3-0 panel opinion. 

Civil Rights: $206,157.50 Attorney’s Fees Request By Defendant Prevailing On Summary Judgment Against FEHA Plaintiff Properly Denied

Action Was Not Frivolous And Was Not Prosecuted In Bad Faith.

            County of Los Angeles, in Shah v. County of Los Angeles, Case No. B291084 (2d Dist., Div. 3 Aug. 22, 2019) (unpublished), was not happy when the trial judge denied its attorney’s fees request of $206,157.50 after prevailing against plaintiff on FEHA claims. The problem is that a prevailing defendant must show the FEHA claims were frivolous under Government Code section 12965(d).  Unfortunately, even though County prevailed on a summary judgment motion, there was sufficient opposition and potentially triable factual issues to justify the denial of fees.  After all, simply losing the case does not mean plaintiff’s action was frivolous.  (Baker v. Mulholland Security & Patrol, Inc., 204 Cal.App.4^th 776, 784 (2012); Robert v. Stanford University, 224 Cal.App.4^th 67, 70 (2014).) 

Civil Rights: E.D. Pennsylvania District Judge Denies Title VII Fee Recovery To Plaintiff Only Winning Nominal Damages Of $1 Dollar On One Title VII Retaliation Claim

Plaintiff Sought To Recover $358,383 In Fees; Limited Success Was Key Reason For Denial.

            In Pierce v. City of Philadelphia, Civil Action No. 17-5539 (E.D. Pa. Aug. 2, 2019), a Native American plaintiff brought various civil rights, constitutional, Title VII, and state-related claims against City of Philadelphia for discrimination, harassment, retaliation, and hostile work environment.  Plaintiff withdrew some claims, and City obtained summary judgment on some claims relating to a 2017 failure-to-promote theory.  The case proceeded to trial on certain claims, with City beating discrimination claims but awarding plaintiff one dollar in nominal damages under a Title VII retaliation claim.  Plaintiff then moved to recover $358,383 in attorney’s fees and $29,436.56 in costs as the prevailing party on the retaliation claim. 

            District Judge Gerald J. Pappert of the Eastern District of Pennsylvania denied the attorney’s fees request altogether and remanded for the clerk to review a request for routine costs by plaintiff.

            The main reason for the fee denial was the limited success obtained by plaintiff in the overall scheme of things, even though it is not per se dispositive.  (Farrar v. Hobby, 506 U.S. 103, 112, 117 (1992); see also Carroll v. Clifford Twp., 2014 WL 2860994 at *3 (M.D. Pa. June 23, 2014), aff’d, 625 F. App’x 43, 36 (3d Cir. 2015).)  However, the circumstances showed that the limited success was crucial in this case, with no subsidiary factors cutting the other way. 

Civil Rights, Section 998: 4/1 DCA Decides That Nonfrivolous FEHA Actions Cannot Give Rise To Routine Cost Recovery Even Though A CCP § 998 Offer Was Rejected

Legislature’s 2019 Amendment In Government Code Section 12965(b) Was To Be Retroactively Applied.

            Effective January 1, 2019, the California Legislature amended Government Code section 12965(b) to resolve a split between two decisions, Sviridov and Arave [both of which were discussed in posts under our categories “Civil Rights” and “Section 998”], about whether CCP § 998 could result in shifting of routine costs against a nonprevailing FEHA civil rights plaintiff even where the suit was found not to be frivolous in nature.  The California Legislature decided that CCP § 998 did not result in a different result; if the FEHA action is found to be nonfrivolous, no routine costs can be recovered against the unsuccessful plaintiff.

            Now, the 4/1 DCA (which decided Sviridov, deciding that section 998 did allow for routine costs recovery) honored the 2019 amendment by finding that it should be retroactively applied to pre-2019 case rulings in this area.  It placed particular significance on two circumstances:  (1) the Senate Judiciary Committee Reports indicated the intent was to clarify rather than change the law; and (2) the Legislature obviously recognized the issue was ambiguous and close given the previous split in appellate decisions, choosing to clarify the situation in this substantive area.

            The end result was that plaintiff’s rejection of a CCP § 998 offer, even though plaintiff lost at trial, did not result in plaintiff having to bear $51,946.96 in routine costs.  The opinion was issued in Scott v. City of San Diego, Case No. D074061 (4^th Dist., Div. 1 Aug. 1, 2019) (published). 

Allocation, Civil Rights, Multiplier: Cohabiting Unmarried Couple Tenants Winning $11,970 On FEHA Marital Discrimination Claim, Despite Losing Privacy Invasion And Quiet Enjoyment Claims, Properly Awarded $389,200 In Attorney’s Fees

Fees Properly Included A 1.3 Multiplier, With No Allocation Required Because Proof On FEHA And Other Claims Were Intertwined.

            Plaintiff tenants, a cohabiting unmarried couple, sued a San Francisco defendant apartment owner for FEHA marital discrimination, invasion of privacy, and breach of the quiet enjoyment covenant based on owner’s actions in attempting to evict tenants without investigating their declaration of domestic partnership and refusing to accept some repair requests by one of the unmarried partners not technically named in the lease.  Tenants won their FEHA claims and were awarded $11,970 in damages.  However, they lost their privacy and quiet enjoyment claims.  The lower court then awarded them FEHA fees of $389,200 (inclusive of a 1.3 multiplier) and expert witness fees/costs of $8,227.50.

            Owner appealed in Ribotto v. Graystone Partners, LP, Case No. A147713 (1^st Dist., Div. 3 July 29, 2019) (unpublished).  The fee award was not disturbed on appeal.

            The lower court did not err by failing to apportion between the FEHA and unsuccessful claims because the proof all related to the basic case story by plaintiffs that they were unlawfully attempting to evict the tenants.  Given the discretionary nature of this call based on the trial evidence, no abuse of discretion occurred given the lower court was in a better position to make this “judgment call.”  Because tenants did prove their FEHA marital discrimination claim, use of a 1.3 multiplier was no abuse of discretion either.

            BLOG OBSERVATION—This opinion was authored by Retired Justice Rebecca Wiseman, who used to sit on the Fifth District Court of Appeal.  She retired to the Bay Area and has been appointed by assignment to sit on some appellate cases argued before the First District. 

Civil Rights, Reasonableness Of Fees: Guillory v. Hill Decision Now Published

$2.4-3.8 Million Fee Request In Civil Rights Case Properly Denied In Entirety.

            On June 7, 2019, we posted on Guillory v. Hill, Case No. G054027 (4^th Dist., Div. 3 May 31, 2019) (unpublished), where a $2.4-3.8 million fee request under a section 1988 was denied in entirety based on minimal success and what the lower court perceived to be inflated billings—a result affirmed on appeal.  Based on four publication requests, this decision was certified for publication on June 25, 2019. 

Civil Rights, Costs, Employment, Section 998: Where Thrust Of Losing Plaintiff’s Suit Was A FEHA Claim, Trial Court Properly Refused To Award CCP § 998 Costs To Winning Defendant Despite Loss On Non-FEHA Whistleblower Claim

Prominence Of Suit Prevailed, Plus Appellate Court Offers Tips On What Trial Courts Ought To Follow When There Is A Split In Intermediate Appellate Thought On An Issue.

            In Thiry v. Pet Partners, Inc., Case No. E070851 (4^th Dist., Div. 2 June 20, 2019) (unpublished), plaintiff brought a mixed FEHA/whistleblower/UCF suit based on allegations of whistleblower activities and medical leave retaliation.  Plaintiff lost, with defendant moving for recovery of costs (including expert witness fees) under CCP § 998.  The lower court denied the request, determining that the FEHA request was predominant/not frivolous in nature and that no apportionment of costs could really be had on non-FEHA claims because everything was intertwined.  Defendant appealed, but the 4/2 DCA affirmed.

            The first issue really was dispositive, namely, a split on appellate thinking on whether 998 costs could be recovered in a FEHA case where the lower court determined plaintiff’s FEHA claim was not frivolous.  The 4/2 DCA followed its prior opinion in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5^th 525 (2018) [finding costs nonrecoverable] versus the opposite conclusion by the 4/1 DCA in Sviridov v. City of San Diego, 14 Cal.App.5^th 514 (2017) [costs were recoverable in a whistleblower case].  [NOTE:  The 2/8 DCA in Huerta v. Kava Holdings, Inc., 29 Cal.App.5^th 74, 84 (2018) followed Arave over Sviridov.]  So, ordinary fee shifting costs were not available under FEHA.  However, what about the non-FEHA whistleblower claims?  The 4/2 DCA agreed that the FEHA claims predominated, such that it would defeat FEHA policies to not allow costs given that the lower court found the claims were intertwined.

            BLOG OBSERVATION—The lower court, faced with a split on the FEHA issue, followed the conclusion reached by the 4/2 DCA reviewing court from its own venue.  The 4/2 DCA recognized that trial courts can follow any decision it finds more persuasive when a difference in appellate thinking is involved, but the appellate court did note that is generally wise for the trial court to follow the lead of the appellate court in the District in which it is located.  (See McCallum v. McCallum, 190 Cal.App.3d 308, 315 n. 4 (1987).) 

Civil Rights: Prevailing Civil Rights Plaintiffs In Significantly Pared Down Police Raid Case, Gaining Damages Of About $5,400, Properly Denied Fees Altogether

Based On Limited Success And Inflated Billings, $2.4-3.8 Million Fee Requests Did Not Resonate With Trial Or Appellate Courts.

            Guillory v. Hill, Case No. G054027 (4^th Dist., Div. 3 May 31, 2019) (unpublished) dealt with a civil rights case brought by plaintiffs after a police raid of a mansion in the aftermath of a Halloween party with about 1,000 partygoers.  Earlier in the case, it was pared down to one solitary defendant and with only one civil rights claim surviving after a directed verdict was reversed.  At a subsequent trial, some plaintiffs were awarded damages of about $5,400 although seeking damages in pleadings northward of $1 million (as well as punitive damages).  Plaintiffs then moved for recovery of attorney’s fees of $3.8 million under a pro-plaintiff fee-shifting statute, 42 U.S.C. § 1988.  The lower court wanted briefing on an inflated billing concern, with plaintiffs lowering their fee request to $2.4 million.  Based on limited success and inflated billings, the lower court awarded nothing to plaintiffs.

            The 4/3 DCA, in a 3-0 opinion authored by Justice Aronson, affirmed.  Limited success and inflated billings present special concerns even in statutorily-mandated or pro-plaintiff fee situations, with the record not showing any error based on the sequence of events and plaintiffs’ failure to apportion unsuccessful work from successful work in light of the matter getting pared down significantly along the way.

Civil Rights, POOF!: $185,000 Jury Verdict And $308,582 FEHA Fee Award Went POOF! On Appeal

Reason Was That Gender Discrimination Was Not Proven As A Matter Of Law At Trial.

            Hughes v. County of Humboldt, Case Nos. A148940/A150526 (1^st Dist., Div. 4 May 28, 2019) (unpublished) shows how an appellate court can affirm but also take away where a jury verdict is not supported by legally sustainable evidence.  Here, plaintiff obtained a $185,000 jury verdict and then $308,582 in FEHA fees after winning a gender discrimination claim.  However, on appeal, the reviewing court determined that plaintiff failed to present a prima facie case of sexual discrimination such that the merits judgment and fee award went POOF! as a matter of law. 

Civil Rights, Special Fee Shifting Statute: Ninth Circuit Reverses And Remands Close To $1 Million Attorney’s Fees Award Under EAJA Against the Government

Problem Was That District Judge Did Not Have Benefit Of Goodyear Tire Decision.

            In Lu v. United States of America, Case Nos. 17-55040/17-55087 (9^th Cir. April 17, 2019) (published), the federal court of appeals had to grapple with a long-running case involving tort claims involving a Chinese national and asylum officer where substantial compensatory damages were awarded to the Chinese national. Then, a long saga of proceedings took place about whether attorney’s fees were awardable against the government because it engaged in bad faith conduct. The statutory basis was Equal Access to Justice Act fee-shifting provisions relating to bad faith governmental conduct. The district judge ultimately awarded $993,758 in fees against the USA.

            USA appealed, and won a remand. What happened is that the U.S. Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), which requires a “but for” causation analysis. The district judge in fashioning its award did not have the benefit of this SCOTUS decision such that its causation test needed to be applied in an EAJA context—so, a remand was in order.

Civil Rights: Winning FEHA Plaintiff Recovers $211,795.80 In Attorney’s Fees, Inclusive Of A 1.2 Positive Multiplier On Lodestar Amount. Plus $25,603.73 In Costs

Real Life Example Of A Fees/Costs Ruling By A San Mateo Superior Court Judge.

          We like to provide real life examples of rulings by California superior court judges where we can. We give a “hat tip” to Robert S. Nelson of Nelson Law Group (San Francisco), who successfully obtained attorney’s fees/costs for his FEHA plaintiff client, in providing us a tentative ruling on an attorney’s fees motion (which has been adopted as the final order) by San Mateo County Superior Court Judge Susan Greenberg.

           In Centeno v. Bon Appetit Management Co., et al., San Mateo County Superior Court Case No. 18-CIV-00620, FEHA plaintiff reached a settlement with the defense, preserving the ability to afterwards move to recover attorney’s fees under FEHA’s fee-shifting statute (Gov. Code, § 12965(b)). On April 11, 2019, Judge Greenberg ruled on plaintiff’s fee motion, where $397,080 was sought (inclusive of a requested positive 1.5 multiplier on the $282,470 lodestar amount). In the end, she awarded plaintiff $211,795.80 in fees—not a bad pay day at all.

            Judge Greenberg reached this number by (1) reducing time for some unsuccessful tasks, (2) not awarding time for media activities and an EDD unemployment benefits hearing, (3) reducing time for retention of a human resources expert, and (4) pegging the reasonable hourly rate at $535 per hour rather than the $600-650 range requested by plaintiff (with the defense arguing $480 was reasonable). She then found that a positive 1.2 multiplier was appropriate on the adjusted lodestar, most likely because there was good lawyering and the matter was taken on contingency.

            She also awarded costs of $25,603.73, including mediation fees given that they were appropriate under the circumstances of the case (citing as support, Berkeley Cement, Inc. v. Regents of University of California, 30 Cal.App.5^th 1133, 1143 (2019) [discussed in our January 8, 2019 post and in co-contributor Marc’s January 29, 2019 L.A. Daily Journal article on the case, which is mentioned in our January 29, 2019 post]).

Civil Rights, Costs: Some 998 Fee-Shifting Costs Stricken By Court Of Appeal In Nonfrivolous FEHA Case

2/8 DCA Agreed With Arave and Huerta In Reducing Costs Award.

            In Butts v. Bd. of Trustees of Cal. State Univ., Case No. B282452 (2d Dist., Div. 8 Mar. 13, 2019) (unpublished), FEHA plaintiff lost against defendant Cal. State Universities on FEHA claims, even after a reversal and remand where the loss occurred again. The lower court awarded costs of $64,063.81 in favor of the defense, some of which were shifted when plaintiff rejected defense CCP § 998 offers. On appeal, the 2/8 DCA affirmed some of the costs, but struck $38,276.22 in costs. Reason for striking costs: they were not allowable, even under section 998, because the FEHA claims were not determined to be frivolous in nature. The trial judge relied on Holman v. Altana Pharma US, Inc., 186 Cal.App.4^th 262, 281 (2010), but the Court of Appeal found Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5th 525 (2018) and Huerta v. Kava Holdings, Inc., 29 Cal.App.5th 74, 84 (2018) more persuasive in determining that costs were not recoverable in this specific context.

Civil Rights, Section 998: FEHA Amended To Provide That CCP § 998 Fee/Costs Shifting In Favor Of Prevailing Defendant Will Not Happen Unless Plaintiff’s Action Was Frivolous

Legislative Enactment Resolved Split Among DCAs, As Recognized In Huerta, Effective January 1, 2019.

            Although alluding to it in some posts on a year-end 2018 case, we post to indicate that California Senate Bill 1300 amended the FEHA scheme to provide that CCP § 998 offers may not be used to shift recovery of attorney’s fees and costs to a prevailing defendant unless the court finds that the action was essentially frivolous in nature. It resolved an intermediary appellate split in opinion as recognized in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal. App. 5th 525, 554 (4th Dist., Div. 2 Jan 2, 2018) (where fees/costs not shifted, but acknowledging division in authority on this point) [discussed in our January 2, 2018 post]. Even after the passage of SB 1300, the Second District in Huerta v. Kava Holdings, Inc., 29 Cal. App. 5th 74, 78, fn. 11 (2nd Dist., Div. 8 Nov. 14, 2018) [discussed in our November 17, 2018 post] applied Arave and noted the statutory change to take effect January 1, 2019 which has resolved the appellate split.

Civil Rights, Multiplier: FEHA Plaintiff’s Appeal Of A Reduced Fee Award Did Not Result In Any Change

Hourly Rates Were Too High, Case Was Overprepared, And Limited Success Before The Jury Supported Lower Court’s Reduced Award.

            FEHA plaintiff in Check v. Raley’s, Case No. A153906 (1^st Dist., Div. 1 Jan. 31, 2019) (unpublished) won $119,211 on some claims, later requesting the trial court to award her $1,109,107 in fees. The lower court found reasons to not honor the request, awarding instead $449,602 and denying a positive multiplier request in the process.

            The appellate court affirmed the reduced fee award. The hourly rates claimed were too high for Sonoma County, a venue with lower rates than other Bay Area locales. The lower court’s 20% overall reduction was in order given its finding that the matter was overprepared by plaintiff’s counsel and involved duplicative attorney work. Finally, a multiplier was properly rejected because the matter was not complex, it was overprepared, and plaintiff had limited success (factors which combined to outweigh the contingency risk factor often leading to the application of a positive enhancement).

Civil Rights: Ninth Circuit, In En Banc Published Opinion, Clarifies EAJA Fee Shifting Analysis For Unreached Claims, Successful vs. Unsuccessful Claims If Common Core Of Facts Involved, And Bad Faith Gov. Test For Whether EAJA Fee Cap Can Be Exceeded

En Banc Hearing Makes A Number Of Cutting EAJA Fee Shifting Determinations.

            Well, we are all in a New Year (2019 to be exact), everyone. Top of the Year, with the Ninth Circuit providing an en banc decision of importance in the civil rights/EAJA fee-shifting area.

            In Ibrahim v. U.S. Dept. of Homeland Security, Nos. 14-16161/14-17272 (9^th Cir. Jan. 2, 2019) (published), the Ninth Circuit, in an en banc hearing, had to confront Dr. Ibrahim’s successful challenge to TSA’s “No Fly” list policy, where she was placed on the list although the U.S. government had to admit she was placed on it erroneously and inadvertently, even though the government tried to deadpan the effects. This did not resonate with the Ninth Circuit en banc majority (and much of the other circuit justices in concurring or even dissenting), which did not like the district court’s award of only $419.987.36 in EAJA fees and $34,768.71 in expenses as against the fees request of $3.63 million and costs request of $293,860.18 when plaintiff clearly prevailed completely on one claim.

            The Ninth Circuit vacated and remanded the fee award, in the process making these determinations:

            *Where a plaintiff obtains complete success on one claim, which makes it unnecessary for a district court to even reach other alternative claims, that qualified as being a successful party;

            *Where there is a true common core of facts or course of conduct, prevailing on one successful claim makes other claims compensable, rejecting a post hoc “mutual exclusivity” test under the circumstances; and

            *Determining whether the government’s position was in bad faith (so as to limit EAJA fees to $125 per hour if bad faith is not shown) means a look at the government’s position as a whole in the case rather than at each stage of the litigation.

            Based on these determinations, a remand was made to award—in our view, a substantially different and greater award—based on the excellent outcome obtained by plaintiff’s counsel.

            The dissent would have not restudied the “lack of bad faith” determination by the district judge so as to cap EAJA fees on remand at $125 per hour.

Civil Rights, Reasonableness Of Fees: Trial Judge Properly Awarded Fees Of $710,000 To A Somewhat Successful Plaintiff In A FEHA Case, Rejecting Inflated Fee Request Of Over $2.7 Million

Compensatory Award Was $307,762, Even Though Jury Was Asked To Award $7 Million.

            Inflated fee requests, as we know from the oft-quoted decision in Christian Research Institute v. Alnor, 165 Cal.App.4^th 1315, 1325-1326 (2008), are a special situation which allows a trial judge to substantially reduce or deny altogether the request. Alnor was front and center in the conclusion reached by the same DCA in McElwain v. Kaiser Foundation Hospitals, Case No. G055049 (4^th Dist., Div. 3 Dec. 20, 2018) (unpublished).

            There, a FEHA plaintiff won $307,762 in compensatory damages from a jury in a disability discrimination suit, although asking for $7 million in damages and not awarded any future economic/noneconomic damages. She then moved to recover over $2.7 million in fees under FEHA’s pro-plaintiff fee shifting statute. The trial judge awarded over $710,000 in fees, refusing to award a positive 1.2 multiplier and applying a negative .4 multiplier after observing that the hourly rates were excessive for the Orange County venue, plaintiff had limited success, and the fee submissions were rife with duplications/inefficiencies/billing errors.

            The appellate court affirmed. Alnor controlled, with the factors relied on by the lower court fully supporting the reduced award, the application of a negative multiplier, and the refusal to grant a positive multiplier. Justice Ikola authored the 3-0 decision.  

Civil Rights, Section 998: 2/8 DCA Holds, For Pre-2019 Cases, That Plaintiffs In Nonfrivolous FEHA Suits Are Not Entitled To Costs Shifting Under CCP § 998

Panel Agrees With Reasoning In Arave Opinion So Holding.

            Effective January 1, 2019, the Legislature has determined that plaintiffs in FEHA cases found to be nonfrivolous in nature do not face fee, costs, or expert witness fee exposure under the FEHA shifting statute or even under CCP § 998 after rejection of a 998 offer which is not beaten at trial. With respect to pre-2019 cases, there is a split of opinion on the topic among the intermediary appellate courts, with Holman v. Altara Pharma US, Inc., 186 Cal.App.4^th 462 (2010) holding section 998 does allow for costs-shifting in nonfrivolous FEHA cases and with Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5^th 525 (2018) holding it does not allow for costs-shifting in this situation.

            The 2/8 DCA, in Huerta v. Kava Holdings, Inc., Case Nos. B277164/B281303 (2d Dist., Div. 8 Nov. 14, 2018) (partially published; costs discussion published), has now weighed in. It has found Arave persuasive, reversing a $50,000 defense award of costs/expert witnesses against plaintiff in a nonfrivolous FEHA case. It also found that the result was consonant with the Legislature’s upcoming amendment which takes effect in 2019.

           Judge Kim Dunning, an Orange County Superior Court judge sitting by assignment, authored the 3-0 opinion.

Civil Rights, Reasonableness Of Fees, Substantiation Of Fees: Third Circuit Court Of Appeals Denies Unreasonable Civil Rights Fee Petition And Affirms Sanctions Of $25,000 Against Attorney

Entire Fee Motion Denied For Misconduct And Inflated Fees, A Companion To Our Post On The Clemens Decision.

            While co-contributor Mike was out on a short vacation, his legal assistant Shanna Strader was kind enough to post on Clemens v. New York Cent. Mut. Fire Ins. Co., No. 17-3150 (3d Cir. Sept. 12, 2018) [see our September 15, 2018 post], where the Third Circuit affirmed a district court’s entire denial of a fee petition where it was outrageously excessive in nature and was chock full of numerous substantiation flaws. That decision occurred under a discretionary Pennsylvania consumer statute, but its basic reasoning has now been extended to the federal civil rights arena.

            In Young v. Smith, Nos. 17-3190 & 17-3201 (3d Cir. Sept. 25, 2018) (precedential) [opinion linked here], attorney represented a group of students in civil rights claims against a school district and a teacher, obtaining an initial jury verdict but with the resultant judgment vacated based on her misconduct. The second trial, only against the school district, resulted in a complete defense verdict. The third trial schedule against teacher was settled when plaintiffs accepted a Rule 68 $25,000 offer of judgment, with the settlement allowing fees and costs against teacher only up until the date of the offer. However, attorney submitted a fee petition for all work against both defendants, requesting $733,002.23 in fees!

            No one was impressed. The district judge ordered an OSC as to why attorney should not be sanctioned for requesting such an excessive fee, with some of the requested fees connected to her vexatious conduct. The district judge denied the entire fee request and sanctioned attorney $25,000 for presenting such a fee petition (including doing so through pleadings with an inconsiderably small font size), finding that even a line-by-line review of entries was unproductive and not tied to nonvexatious work as limited by the settlement with the teacher. The district court also found that hundreds of entries in the fee petition were fraudulent.

            The Third Circuit affirmed. The fee petition was not honest and was not accurate in nature, allowing for a denial of a request in entirety under the federal civil rights fee-shifting statute where the fee petition sought outrageously excessive fees in egregious fashion. Just the fact that $733,002.23 was sought in a $25,000 settled case confounded the Court of Appeals as much as the district court. So, the reasoning in Clemens was extended to civil rights fee petitions, and the $25,000 sanctions was sustained too.

Civil Rights: Plaintiff Seeking Injunctive Relief Under California’s Disabled Person Act Improperly Assessed With $28,008 In Attorney’s Fees After Defendant Modified A Grocery Store Parking Lot To Create An Accessible Path For Disabled Persons

Defense Fee Recovery Reversed, But No Fees To Plaintiff Because She Did Not Seek Fees Below.

            This one is somewhat of an object lesson because the 2/4 DCA not only reversed fee recovery against a disabled person dismissing an action for injunctive relief under the Disabled Person Act (DPA), but would have found that plaintiff was the prevailing party entitled to attorney’s fees herself had she sought them below (although she didn’t).

            After plaintiff dismissed her DPA and Unruh Act action after a grocery store made modifications to a parking lot such that there was an accessible path for disabled persons, defendant moved for attorney’s fees against her and was awarded $28,008 (the full defense request) in Baskin v. Hughes Realty, Inc., Case No. B279645 (2d Dist., Div. 4 Aug. 6, 2018) (unpublished). The 2/4 DCA reversed the fee award against plaintiff/appellant.

            The DPA has a unilateral fee provision applicable to prevailing plaintiffs under the remedial provisions of the statute, and it also has a bilateral fee provision when injunctive relief is sought. Under the Unruh Act, no matter what the remedy, the fee provision is unilateral in favor of a prevailing plaintiff. Plaintiff, although not requesting fees, argued she was the prevailing party under the “catalyst” theory, rather than defendant. She next argued that defendant grocery failed to show that the fees it requested pursuant to the one bilateral fee-shifting provision were not inextricably intertwined with the defense of the other claims involving prevailing plaintiff only fee-shifting provisions (see Turner v. Association of American Colleges, 193 Cal.App.4^th 1047 (2011)). The appellate panel agreed that plaintiff, not grocery store, was the prevailing party under the catalyst theory and that her action was not frivolous given that lot modifications were made. (Stivers v. Pierce, 71 F.3d 732, 739-740 (9^th Cir. 1995).) Finally, the reviewing court agreed that the defense efforts on the one putative fee-shifting statute was intertwined with the defense of the other claims, accepting the rationale of Turner in this regard such that fee recovery was not warranted. (Turner, 193 Cal.App.4^th at 1027.)

Civil Rights: $100,000 FEHA Award In Favor Of Defense For Frivolous Suit Affirmed On Appeal

Defense Had Asked For $325,584, But Trial Judge Carefully Considered “Pocketbook” Factor.

            Not all defense motions against plaintiffs for filing/prosecuting a frivolous FEHA claim result in a nothing fee award. Raseknia v. County of Los Angeles, Case No. B271912 (2d Dist., Div. 2 June 27, 2018) (unpublished) illustrates this, although trial judges usually will reduce the defense request based on a belief that the plaintiff has precarious financial ability to pay.

            Plaintiff’s FEHA-dominant action was found to be frivolous, which allowed the defense to recover fees. It moved to recoup fees of $325,584, but the trial judge wanted some supplemental submissions on plaintiff’s financial condition and a billing matrix by the defense to support the fees request. Ultimately, the trial judge awarded the defense $100,000 in fees, reducing principally for plaintiff’s financial situation.

            Plaintiff’s appeal of the fee order was unsuccessful. The trial judge did not abuse its discretion in awarding some requested fees and denying costs based on plaintiff’s financial condition.

Civil Rights, Lodestar, Reasonableness Of Fees: Over Vigorous Dissent, Ninth Circuit Rules That C.D. Cal. Local Rule Default Judgment Fee Schedule Does Not Apply Where Plaintiff Obtaining Default Judgment Asks For Lodestar Fees In ADA Case

Dissenting Circuit Judge Believed That Not Adhering To Local Rule Suggestions Would Lead To Potential Abuse.

            The Ninth Circuit, in Vogel v. Harbor Plaza Center, LLC, No. 16-55229 (9^th Cir. June 25, 2018) (published), visited the issue of how attorney’s fees in an American with Disabilities Act (ADA) case should be handled in an uncontested default judgment situation. This issue actually produced a majority, concurring, and dissenting opinions, although the majority opinion (agreed to by the concurring judge) found that the lodestar approach should be used where a successful plaintiff requests ADA fees which exceed the caps under a Central District of California Local Rule which has a much lower limit tethered to the amount of the default judgment.

            What happened here is that a plaintiff obtained a default judgment in an ADA case after the defense failed to appear at a pretrial conference. Plaintiff then sought $36,671.25 in attorney’s fees after winning statutory damages of $4,000 and costs of $3,590.83. However, the district judge awarded only $600 fees under C.D. Cal. Local Rule 55-3 which did allow fees in excess of this amount to be determined by the district judge under certain conditions. Plaintiff appealed, with no appearance filed by the defense.

            The Ninth Circuit majority opinion found that it was error for the district judge not to use the lodestar fee approach even in an uncontested default judgment proceeding, rather than presumptively apply the Rule 55-3 caps. The district court did, in the majority/concurring view, have to consider a lodestar request over the default judgment rule schedule of fees. In essence, the ADA lodestar approach prevailed over the C.D. Cal. default judgment fee schedule.

            The majority opinion did indicate that the district court did have to scrutinize plaintiff’s request, if one over the scheduled amounts, for reasonableness.

            Concurring Circuit Judge Christen believed that the district court did not have to adhere to local default judgment fee schedules in a civil rights case like the ADA case before it.

            Dissenting Senior Circuit Judge Kleinfeld believed that uncontested default judgments should be governed by the Local Rule as a starting point and that the district judge did not abuse his discretion in rejecting an increase in this matter. Otherwise, ADA plaintiffs will abuse requests by “puffing” up the presumptive schedule fee in many cases, in the dissent’s view.