CALIFORNIA ATTORNEY'S FEES

Allocation, Civil Rights: Plaintiff Prevailing on a Bane Act Claim Awarded $829,702.50 In Attorney’s Fees

Although She Was Unsuccessful On Some Claims, The Work Was Interrelated Such That Neither Allocation Nor A Further Reduction Was Required.

               In Gonzalez v. County of Fresno, Case No. F086776 (5^th Dist. Apr. 16, 2025) (unpublished), plaintiff recovered on a Bane Act claim (which has a fee-shifting statute), even though she failed to recover on some theories and two other plaintiffs were unsuccessful on the civil rights claims.  The jury awarded her $500,000 against three defendants.  She then moved for attorney’s fees of a little over $1.659 million inclusive of a 2.0 multiplier.  The lower court awarded her $829,702.50,

               Defendants’ challenges on appeal—that her work in related federal litigation and her partial lack of success required a further reduction—were rejected by the appellate court.  Under the abuse of discretion standard, the federal work was related to the state court work, and plaintiff’s work on unsuccessful claims was related to work on successful ones, with no apportionment being required.  The Fifth District panel also rebuffed the defense suggestion that the lack of success by other plaintiffs should be used for purposes of gauging her success. 

Civil Rights, Costs: Failure To Consider Plaintiff’s Financial Position In FEHA Costs Award Led To A Reversal

Other Items Also Had To Be Revisited.

               In the FEHA area, if appropriately raised, lower courts must take into account plaintiff’s financial situation in making a costs award against a non-prevailing FEHA plaintiff even where plaintiff’s case was deemed frivolous.  The lower court did award costs against the plaintiff, finding indigency was irrelevant in a FEHA case.  The Court of Appeal reversed in Ross v. Trustees of Cal. State University, Case No. B318731 (2d Dist., Div. 8 Apr. 7, 2025) (unpublished) because indigency is a factor to be considered.  Once that was recognized, the appellate court also questioned certain other routine costs which were granted but appeared suspect on appeal.  But we would surmise the indigency ground for reversal led the parade on the revisit of other costs in this appellate opinion.

Civil Rights, Costs: Lower Court’s Award Of Costs Against Dismissing FEHA Plaintiff Reversed As A Matter Of Law.

No Indication Case Was Frivolous.

               We have posted on an emerging trend in FEHA cases, which is that routine costs cannot be assessed against a non-prevailing plaintiff unless the case is deemed frivolous. Vanrooy v. Jacobes-Downing-Hughes, Inc., Case No. C100312 (3d Dist. Apr. 7, 2025) (unpublished) is a continuation of that theme.  There, plaintiff’s claims were dismissed for failure to serve a complaint within the three-year mandatory service period, with the lower court awarding routine costs.  The costs award was reversed on appeal because nothing indicated that plaintiff’s case was frivolous or that costs could be apportioned between FEHA and non-FEHA claims. 

Civil Rights, Prevailing Party: SCOTUS Decides That A Preliminary Injunction Mooted By Subsequent Events Does Not Make One A Prevailing Party Under The Civil Rights Fee Shifting Statute

However, A Footnote In the Opinion Shows That This Is A Nuanced Issue Depending On Objectives Of Plaintiff Or Defendant.

               We now report on a recent SCOTUS decision under the civil rights statute, 42 U.S.C. § 1988(b), which provides when a “prevailing party” can recover fees.  This case is interesting and may have repercussions for California, whether under the federal or analog state statutes.

               In Lackey v. Stinnie, 604 U.S. __, Case No. 23-621 (U.S. Feb. 25, 2025), a plaintiff obtained a preliminary injunction for certain actions which, before the case could go to judgment, were mooted because the Virginia General Assembly repealed the challenged statute.  The district court found that plaintiff was not a “prevailing party” under the federal civil rights statute, 42 U.S.C. § 1988(b).  The Fourth Circuit reversed, with the U.S. Supreme Court granting certiorari and reversing the Fourth Circuit’s reinstatement of the fees motion.

               SCOTUS’ majority opinion determined that a litigant obtaining a preliminary injunction is not a civil rights “prevailing party” because the preliminary injunction did not provide an enduring judicially sanctioned change in the legal relationship of the parties.  External events that render a dispute moot did not convert the temporary order into a conclusive adjudication, because a preliminary injunction is not a dispositive ruling and district judges sometimes arrive at a different result after deciding a case on the full merits. 

               However, there is an interesting footnote with important clarifying language.  The footnote observes that who is a prevailing party is different for defendants versus plaintiffs because both sides come to court with different objectives.  It further noted that its decision in Lackey should not be read to affect the Court’s previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question SCOTUS left open of whether a defendant must obtain a preclusive judgment to prevail, citing Van Expedited, Inc. v. EEOC, 578 U.S 419, 431-434 (2016).

               BLOG HAT TIP—We thank Griffin Klema, a Florida intellectual property litigator, for bringing this decision to our attention.  We would note that Mr. Klema did raise the “different objectives” distinction in his certiorari petition in Abdelsayed v. Affordable Appeal Photograph, which involved a split in circuit court opinions on whether a voluntary dismissal without prejudice can render a defendant a prevailing party under the copyright fee shifting statute.  SCOTUS did ask for a response to his cert petition, but ultimately denied it on November 24, 2024 and further denied a petition for rehearing earlier this month.  However, it does appear that the Court picked up on his “different objectives” point and used it for clarification in Lackey.

Civil Rights, Prevailing Party, Settlement, Special Fee Shifting Statutes: Stipulated Judgment To Enforce Settlement Had Post-Judgment Enforcement Language Carve-Out Allowing For Further Post-Enforcement Attorney’s Fees

Also, On Remand, Trial Judge Had To Determine If Plaintiffs Prevailed In Voting Rights Act Case; And, If So, Amount Of Further Fees To Be Awarded.

               In Robles v. City of Ontario, Case No. G064119 (4^th Dist., Div. 3 Nov. 6, 2024) (published; originally issued unpublished on October 24, 2024), plaintiffs alleged that defendants erred in not holding at-large elections for city council, instigating a suit for violations of the California Voting Rights Act (VRA) and 42 U.S.C. § 1983.  The parties reached a settlement agreement and stipulated judgment, under which defendants agreed to pay plaintiffs $300,000 for prior attorney’s fees incurred under Elections Code section 14030, the VRA’s fee-shifting position.  Plaintiffs moved to enforce the stipulated judgment based on alleged noncompliance, with the lower court determining a provision in the judgment was invalid and denying further post-judgment enforcement fees based on the prior fees language.  Defendants conceded there was no invalidity, but the lower court still denied renewed post-judgment enforcement fees.

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Moore, reversed and remanded.  The stipulated judgment contained carve-out language allowing plaintiffs to enforce the settlement under CCP § 664.6, which the appellate court deemed sufficient to allow for the further attorney’s fees being requested.  However, the lower court also had to determine if plaintiffs were prevailing parties because they achieved their litigation objectives in obtaining map relief under the stipulated judgment; and, if so, the amount of further fees to be awarded to plaintiffs.

Civil Rights: $55,414.84 Attorney’s Fees Award Under ADA Against Plaintiff’s Attorneys Reversed On Appeal, Although Plaintiff Dismissed A Website Action After Not Opposing A Summary Judgment Motion

Appellate Court Concluded That ADA Statute’s Silence On Fee Award Against Plaintiff’s Attorneys Was Dispositive.

               Statistically speaking, California state and federal courts (especially federal courts) are inundated with ADA disability lawsuits, many based on Website disabilities for disabled persons.  The next case establishes, as far as ADA claims are concerned, dismissals or judgments against an ADA plaintiff, even where the case is deemed frivolous, does not impose an attorney’s fees award against plaintiff’s counsel (as opposed to the plaintiff).

               Morgan v. Zarco Hotels Incorporated, Case No. B332319 (2d Dist., Div. 2 Aug. 21, 2024) (unpublished) was a situation where a plaintiff brought an American with Disabilities Act (ADA) lawsuit against hotel for certain alleged website accessibility issues.  The defense filed a summary judgment motion complete with a declaration from a hotel accessibility expert showing that the defendant was compliant with respect to a plaintiff using screen reader software (SRS) to navigate the Internet.  Plaintiff never opposed the summary judgment motion, choosing to dismiss the case.  Among other things, the defense filed a motion to recover attorney’s fees against plaintiff and her attorneys under the ADA fee-shifting statute, which does allow fees to a prevailing defendant if plaintiff’s case is deemed to be frivolous.  The lower court denied fees against plaintiff, but it ordered plaintiff’s counsel to pay $55,414.84 in fees to the defendant.

               The 2/2 DCA reversed, finding that the ADA fee-shifting provision (42 U.S.C. § 12205) was silent with respect to a fee award against a litigant’s counsel, such that it should not be construed to allow for such recovery, citing to similar cases under the federal civil rights statute, ERISA, Title VII, and the anti-SLAPP statute among others. 

Civil Rights: The Price Of A Frivolous ADA Hotel Accessibility Action In Terms Of Attorney’s Fees—Plaintiff Was Hit With A $57,604.90 Adverse Fee/Costs Award

Voluntary Dismissal Before Opposition To Summary Judgment Motion Did Not Do The Trick.

               In Garcia v. Zarco Hotels Incorporated, Case No. B332298 (2d Dist., Div. 1 July 29, 2024) (unpublished), plaintiff brought an ADA suit challenging a hotel’s accessibility policies to enable disabled persons to determine whether the hotel’s common areas and room were accessible to them.  Hotel moved for summary judgment, challenging the accessibility assumptions, with plaintiff dismissing the case before any SJM opposition was due.  (In moving for SJM, hotel relied on about 50 federal district court decisions dismissing similar claims about hotel reservations websites, most filed by plaintiff’s counsel and including many where plaintiff was the plaintiff.)  The lower court found that plaintiff’s case was frivolous under the ADA’s fee-shifting provision in 42 U.S.C. § 12205 which permits a court, in its discretion, to award reasonable attorney’s fees and costs against a plaintiff and in favor of a prevailing defendant where “the plaintiff’s action was frivolous, unreasonable, or without foundation.”  (Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1151 (9^th Cir. 1997).)  The lower court awarded $57,604.90 in fees and costs to hotel as the prevailing party.

               The 2/1 DCA affirmed, based on an abuse of discretion review standard.  Plaintiff’s own evidence did not bear out his case, and the federal decisions otherwise did not blunt that the hotel’s website was ADA compliant based on the SJM evidence never refuted by Plaintiff.

Civil Rights, Sanctions: 4/3 DCA Reverses $98,852 Sanctions Award Under CCP § 128.7 After Concluding That Plaintiff Successfully Defeated Summary Judgment Motion On ADA And Related Claims

For ADA/Disability Practitioners, A Disabled’s Successor May Have Standing To Pursue ADA And Related Claims For Injunctive Relief.

               In Saurman v. Peter’s Landing Property Owner, LLC, Case No. G061561 (4^th Dist., Div. 3 July 26, 2024) (published), the Court of Appeal reversed a summary judgment grant and $98,852 CCP § 128.7 sanctions award against husband, a successor to a deceased wife claiming ADA, Unruh Act, and Disabled Persons Act violations.  For practitioners in this area, this opinion is “must” reading for purposes of establishing whether a successor may have standing to pursue injunctive relief for the deceased person, for that person “as well as the public general” in state court (but not necessarily federal court).  That reversal of the grant of summary judgment pretty much meant that the section 128.7 sanctions order also fell because of the standing determination.  Acting Presiding Justice Moore penned the 3-0 opinion.

Civil Rights, Prevailing Party: Plaintiff Entitled to Prevailing Party Fees Under The California Voting Rights Act Of 2001

Although Unintentional, School District Continued To Defend The Legality Of Its At-Large Elections Even Though Plaintiff Was Able To Show A Violation Of The Act, Obtain An Injunction, And Force Trustee-Area Election Based On Plaintiff’s Proposed Map.

               Although the amount of the fee award is not mentioned, the 4/1 DCA affirmed the award in favor of Plaintiff and against School District in Southwest Voter Registration Education Project v. Ramona Unified School Dist., Case No. D081500 (4^th Dist., Div. 1 July 11, 2024) (unpublished).  There, Plaintiff proved a violation of California’s Voting Rights Act of 2001, which statutory scheme has a prevailing party fee-shifting provision under Elections Code section 14030.  In line with the lower court’s determinations, the appellate court agreed Plaintiff had obtained its primary litigation objectives by obtaining an injunction against District’s at-large elections and forcing trustee-area elections based on plaintiff’s proposed map.  We would speculate that the fee award was somewhat substantial in nature.

Cases Under Review, Civil Rights: SCOTUS Will Review Whether Attorney’s Fees Are Available To A Civil Rights Plaintiff Obtaining A Preliminary Injunction Of Significance Before A Conclusive Merits Ruling Was Reached

Cert Was Granted On April 22, 2024 In A Fourth Circuit Case.

               In Lackey v. Stinnie, 77 F.4^th 200 (4^th Cir. 2023), the Fourth Circuit Court of Appeal in an en banc opinion held that a civil rights plaintiff winning a preliminary injunction, but not securing a final judgment, might be a prevailing party entitled to attorney’s fees under 42 U.S.C. § 1988(b).  We can now report that the U.S. Supreme Court granted certiorari on April 22, 2024 to consider these two issues:  (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the permits under 42 U.S.C. § 1988; and (2) whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under Section 1988. 

Civil Rights: Unruh Act In Disability Action Denied More Fees Under Civil Code Section 52

Plaintiff Did Win Some Fees. But More Additional Fees Not Allowable Because Of Failure To Provide Reporter’s Transcript On Fee Motion Hearing.

            We can only tell you that some appellate courts strictly enforce the necessity of a reporter’s transcript on a fee motion hearing on entitlement and/or fee reasonableness issues.  The lack of an adequate record on appeal was fatal in Pumphrey v. Min & Hong Corp., Case No. B326037 (2d Dist., Div. 5 Dec. 18, 2023) (unpublished).

            There, plaintiff brought ADA, Unruh Act, and Health & Safety Act claims relating to disability access issues.  Although plaintiff partially prevailed, the court substantially lowered fee and costs requests, awarding $42,688.50 in fees (out of around a $117,000 ask) and $3,028.15 (out of a $12,884.30 ask).  On appeal, plaintiff argued that more fees were required under the Unruh Act claim.  However, because there was no reporter’s transcript on the fee motion, it was unclear what fee entitlement statutes were at issue so that the lack of this record required an affirmance on appeal.

Civil Rights, Private Attorney General: Plaintiff’s Obtaining Of Prior Mandamus Relating To Her Nursing License Did Not Mean She Was Entitled To Private Attorney General Or Civil Rights Fees

Her Win Did Not Benefit A Large Class Of Persons, And Her Mandamus Writ Petition Was Not Litigated As A Federal Civil Rights Claim.

            In Valencia v. Board of Registered Nursing, Case No. A164976 (1^st Dist., Div. 4 Oct. 30, 2023) (unpublished), plaintiff obtained a mandamus petition win vacating certain discipline imposed by defendant Board against her nursing license.  She then moved to recoup attorney’s fees under the private attorney general statute (CCP § 1021.5) and federal civil rights statute (42 U.S.C. § 1988), requests which were both denied.  She appealed, but no changes resulted.  Plaintiff righted an injustice to her personally, but failed to obtain a result which benefited the public more broadly.  With respect to the section 1988 fee request, that was properly denied because her writ petition was not framed or litigated as a federal civil rights claim, with it also being prejudicial for the Board to address a federal claim only articulated when the administrative record was closed.

Civil Rights: City Of South Gate Garners $29,000 In Attorney’s Fees For Frivolous Civil Rights Suit From L.A. District Court Judge

Partial Fee Request Granted Because Plaintiff’s Counsel Admitted Prosecution Of The Case Successfully Was Not Possible At A Definite Point In The Case.

            Under 42 U.S.C. §1988, a district judge, in his or her discretion, may award attorney’s fees to a prevailing defendant where the court finds plaintiff’s claims to be frivolous, unreasonableness, or groundless.  There are important timing nuances here:  that determination can be based upon circumstances existing at the commencement of the case or during the subsequent prosecution of the case where it becomes clear that the civil rights claims lack merit.  Ammari v. City of Norwalk, et al., Case No. 2:22-cv-01319-SSS-MARx (C.D. Cal. Sept. 28, 2023) (order granting in part defendant’s motion for attorney’s fees) is an example of a partial fee award being granted because of the second timing nuance.

            There, Plaintiff’s § 1988 complaint was not frivolous when filed, but became so by a certain point in time after Plaintiff’s counsel admitted in opposition to the fee motion that he could not obtain facts to support the claims, such that City of South Gate had to continue litigation for a few months, including attendance at unsuccessful mediations and preparation of a summary judgment motion which was granted.  Using the lodestar analysis, U.S. District Judge Sunshine S. Sykes found that the requested hourly rate for three experienced attorneys was reasonable for the work and that each attorney did separate tasks such that no reduction was necessary for duplication, leading to a partial fee award of $29,000 for the time post-dating when prosecution of the case was without basis.

            BLOG HAT TIP—Because such fee awards are infrequent, we congratulate Raul F. Salinas, Rick Navarette, and Monisha Coelho of Frost Brown Todd LLP’s Los Angeles office on the result, with Ms. Coelho being the lead attorney on the fees motion. 

Civil Rights, Section 998: Summary Judgment Winning Defendants Properly Denied FEHA Attorney’s Fees And Routine Costs Because Case Was Not Frivolous

Also, FEHA And Non-FEHA Claims Overlapped Such That Costs Recovery Was Foreclosed.

            In Liza v. CKE Restaurant Holdings, Case No. B313111 et al. (2d Dist., Div. 2 Sept. 25, 2023) (unpublished), defendant won a summary judgment against plaintiff’s FEHA and non-FEHA claims, although they did overlap.  The lower court later denied the defense request for attorney’s fees and routine costs.

            The 2/2 DCA affirmed.  The appellate court agreed with the lower court’s determination that the action was not frivolous, with a loss on a case not being the automatic equivalent of the matter being specious.  With respect to the interplay between FEHA claims, non-FEHA claims, and CCP § 998, the reviewing court found that Scott v. City of San Diego, 38 Cal.App.5^th 228, 242-243 (2019) was correct in reasoning that pre-998 versions did not change the rule that frivolity had to be found in the case, which prevented recovery of routine costs by the defense given the trial judge’s conclusion that there was overlap in the FEHA and non-FEHA issues.

            BLOG COMMENTARY—Where a defendant affirms an adverse FEHA determination, appellate costs also are governed by the frivolity standard.  (See Pollock v. Tri-Modal Distrib. Services, 11 Cal.5^th 918, 929 (2021).)

Civil Rights, Costs: Prevailing ADA Defendant Entitled To Costs Under F.R.Civ.P. 54(d)(1) Even If The Matter Was Not Frivolous

Majority Opinion Followed Marx Decision; Dissent Would Have Followed A Contrary Pre-Marx Decision Despite Indicating The Result Might Be The Same.

            In Garcia v. Gateway Hotel, L.P., Case No. 21-55926 (9^th Cir. Sept. 15, 2023) (published), the Ninth Circuit, in a 2-1 opinion, clarified that defendants prevailing in an American with Disabilities Act (ADA) suit are entitled to seek routine costs from the plaintiff under Federal Rule of Civil Procedure 54(d)(1), not having to prove the case was frivolous, based on Marx v. General Revenue Corp. 458 U.S. 371 (2013).  The dissent, we think, did not disagree, but believed the circuit was bound by a pre-Marx decision not embraced by the majority justices.

Civil Rights, Lodestar, Multipliers: 4/3 DCA Affirms Majority Of $4.053 Million Civil Rights Fee Award To Prevailing Plaintiff, Remanding Solely For A Study Of Hourly Rates Submitted By Three Attorneys

Case Has Interesting Discussions of Civil Rights Lodestar, Multipliers, Hourly Rate Review, and Pro Hac Vice Delayed Admission Principles.

            Presiding Justice O’Leary authored Nachtrieb v. County of Orange, Case No. G060294 (4^th Dist., Div. 3 Aug. 11, 2023) (unpublished), which is a must read for civil rights litigators when it comes to supporting and opposing fee applications under a pro-plaintiff civil rights statute (42 U.S.C. § 1988) after a civil rights plaintiff prevailed against Orange County and two individual defendants to the tune of $1,278,800 in damages.

            What happened next was that plaintiff moved to recoup fees of $4.5 million, but plaintiff also requested an enhancement of the award to $9.9 million.  The defense argued in opposition that no more than $2.2 million in fees were justified.  The lower court awarded fees of $4,053,479 (lauding the success and performance of plaintiff’s attorneys although making reductions), prompting an appeal by the defense and a cross-appeal by plaintiff.

            By and large, the fee award was affirmed, although it was remanded to revisit the hourly rates charged by three of the claiming attorneys.

            Lodestar and multiplier principles do apply in § 1988 cases, with most of the appellate issues reviewed in this case under an abuse of discretion standard.  Even though plaintiff was unsuccessful against certain other defendants, this by itself does not require a reduction under § 1988.  Plaintiff competently supported the fee application, such that the burden of rebuttal fell on the defense, which had to explain excessive, redundant, and unreasonable charges—plaintiff did not have to negate these factors.  The remand occurred because, for three attorneys, the lower court awarded higher rates than those advocated by plaintiff’s fee expert under the Laffey Matrix such that this paradox needed to be resolved. 

            Plaintiff’s cross-appeal arguments were rejected.  There was nothing erroneous about the lower court rejecting a multiplier given a conclusion that the lodestar adequately compensated plaintiff’s attorneys for their work effort.  The lower court correctly excluded 489 hours expended by out-of-state attorneys before they were admitted pro hac vice, given that California does not allow for such compensation. (Golba v. Dick’s Sporting Goods, Inc., 218 Cal.App.4^th 1251, 1255 (2015).)  It further found that the Golba rule was not preempted by other federal civil rights principles because it did not obstruct the purposes of section 1988 but merely required attorney permissive admission as a condition to compensation for work. 

            The appellate court did award appellate costs to the defense, but it clarified that it has no bearing on entitlement to further section 1988 attorney’s fees by plaintiff.  

Civil Rights: Class Action Counsel Awarded Over $400,000 In Attorney’s Fees After Settling Constitutional Challenges To Mississippi’s Sodomy Law

Fifth Circuit Decision Demonstrates A Smart Move By Class Counsel And How District Judges Will Reduce Lodestar Requests For Clerical Work, Partial Success, And Work On Unsuccessful Motions.

            In Doe v. Fitch, No. 22-60481 (5^th Cir. Apr. 11, 2023) (per curiam; unpublished), the Fifth Circuit Court of Appeals was reviewing a district court’s award of attorney’s fees to class counsel under the federal civil rights statute, 42 U.S.C. § 1988, after the parties settled a class action requiring Mississippi to remove 28 individuals from its sex offender registry.  (Although Mississippi’s sodomy law was declared unconstitutional in 2003, the state continues to the enforce the statute through its sex offender registry laws.)  The district judge reduced plaintiffs’ lodestar request by 15%, awarding more than $400,000 to plaintiffs after their counsel smartly made a 10% voluntary reduction in fees.  (The Fifth Circuit opinion does not state the amount of the fee award, but it was reported in a July 28, 2023 post on “Mississippi Today.”)

            The Fifth Circuit sustained the fee award under the deferential abuse of discretion standard.  The 15% across-the-board reduction was justified due to clerical work by class counsel, plaintiffs’ failure to invalidate the sex registry statute, partial success (not prevailing on an unsuccessful due process claim), and work on an unsuccessful summary judgment motion.  However, the district court also was correct to not make further reductions for other work on the due process/equal protection claims because they were intertwined and for using out-of-state counsel. 

Civil Rights: $13,943.84 In Costs Was A Negative Award Against A Plaintiff Whose FEHA Case Was Found To Be Frivolous In Nature

Appellate Court Also Chided Plaintiffs’ Counsel For A Lack Of Civility.

            In Gonzalez v. County of Los Angeles, Case No. B317794 (2d Dist., Div. 2 July 28, 2023) (unpublished), plaintiff lost a FEHA case after demurrer and summary judgment grants.  The lower court found the FEHA claims to be frivolous, unreasonable, and groundless, awarding $13,943.84 in costs to the defense.  (Bond v. Pulsar Video Productions, 50 Cal.App.4^th 918, 921-922 (1996).)  The appellate court affirmed because plaintiff really did not contest the lower court’s findings to that effect.  But, as we have increasingly seen, it also ended with a civility reminder: “Additionally, we are troubled by the conduct of plaintiff’s counsel toward both the County’s counsel and particularly the court. We appreciate the vigorous advocacy of attorneys in representing their clients, but sarcasm, personal attacks, and an obvious lack of respect are not acceptable in the courtroom. Such behavior undermines the attorneys’ credibility and hurts the clients.”

Civil Rights: Defendant Not Entitled To Recover Statutory Fees Where Plaintiff’s ADA Claim Was Dismissed For Lack Of Standing

Fees Are Not Allowable Under ADA Fee Statute, But Rule 11 Was Available to Recoup Fees If The Defense Can Prove The Action Was Frivolous.

            The Ninth Circuit, in Fernandez v. 23676-23726 Malibu Road, LLC, No. 22-55626 (9^th Cir. July 26, 2023) (published), held that an American with Disabilities Act (ADA) plaintiff whose case is dismissed for lack of standing cannot be exposed to attorney’s fees claimed by the defense under the ADA’s fee provision, 42 U.S.C. § 12205.  However, that is not to say that plaintiff may be exposed to fees as sanctions under F.R.C.P., Rule 11, if it can be shown that plaintiff’s action was frivolous in nature. 

Civil Rights, Private Attorney General: On Remand From The California Supreme Court, Court Of Appeal Denies Attorney’s Fees To Prevailing Party Under The Political Reform Act And Under A Separate Private Attorney General Theory

Plaintiff’s Suit Was Not Frivolous Under Political Reform Act, With Defendants Not Showing An Important Right/Significant Benefit Were Vindicated Under CCP § 1021.5.

            In Travis v. Brand, Case No. B298104 (2d Dist., Div. 8 May 19, 2023) (published), the 2/8 DCA had to consider whether prevailing defendants were entitled to attorney’s fees under the Political Reform Act and under CCP § 1021.5 after the California Supreme Court decided that prevailing defendants are only entitled to Political Reform Act fee recovery if they can prove plaintiff’s case lacked foundation and then determine whether the trial court properly decided that fees were warranted under the private attorney general doctrine.  Defendants were not successful in convincing the appellate court that a fee award was proper under either fee entitlement anchor.

            With respect to the Political Reform Act entitlement basis, the appellate court examined the entire record and concluded that plaintiff’s suit had potential merit from the onset.

            That swung things to the private attorney general justification.  This ground did not prevail on appeal.   Defendants did not show that they satisfied the important right and substantial benefit prongs of section 1021.5.  Simply because an election law issue was involved did not per se give an imprimatur on private attorney general fees, given that defendants failed to show free speech rights were involved.  Instead, only technical issues between the parties themselves were involved, issues which did not change any of the merit issues or focus for the electorate.  Given this pragmatic assessment by the appellate court, two prongs of section 1021.5 were not satisfied so as to justify denial of private attorney general fees.

Civil Rights: Where Qui Tam Plaintiff And Defendant Settle The Action With Each Side Bearing Their Own Fees, Quin Tam Plaintiff’s Counsel Cannot Bring Subsequent Action For Statutory Fees Under Government Code Section 12652

Action Was Dismissed, With Options For Counsel Being To Intervene In The Qui Tam Action Or To Provide For A Fee Recovery Preservation In The Settlement.

            In Berney Law Corp. v. ClubCorp Porter Valley Country Club, Inc., Case No. B313888 (2d Dist., Div. 7 May 18, 2023) (unpublished), the trial and appellate courts faced this issue:  If a qui tam plaintiff and defendant settle their action, agreeing to bear their own attorney’s fees, and the matter is dismissed with prejudice, may the plaintiff’s counsel, a non-party to the action and not a signatory to the settlement agreement, bring a subsequent action against the settling defendant for statutory fees under Government Code section 12652(g)(8)?  The lower court said no, and the appellate court agreed.  The 2/7 DCA did suggest that the attorney might have options, such as intervening in the action before it was settled or making sure the settlement agreement preserves the ability to pursue fees at a subsequent point in time. 

Civil Rights: $2,311,662.50 FEHA Disability Discrimination Fee Award Affirmed On Appeal

Compensatory Award Was $1,014,000.

            As we have posted in the past, FEHA compensatory awards often produce ancillary substantial fee recoveries.  That was borne out in Thomas v. City of Los Angeles, Case Nos. B305051/B308622 (2d Dist., Div. 2 Apr. 25, 2023) (unpublished).

            Plaintiff won a $1,014,000 FEHA disability discrimination award against L.A., with the lower court then awarding plaintiff $2,311,662.50 in attorney’s fees and $272,270.01 in costs.

            The fee award was affirmed on appeal, given the costs award was not challenged.  The lower court had lowered the lodestar request of $3,081,273 to $1,849,300, then augmenting the latter amount by a 1.25 positive multiplier.  These actions showed no abuse of discretion by the lower court, with the multiplier warranted by the contingency risk associated with the case.

Civil Rights: California Supreme Court Finds Political Reform Act’s Prevailing Party Fees/Costs Provision Is Asymmetrical In Favor Of Plaintiffs

Defendants Only Obtain Fees If Plaintiff’s Suit Is Objectively Unreasonable From The Start Or Becomes So During Its Prosecution.

            The California Supreme Court, in Travis v. Broad, Case No. S268480 (Cal. Supreme Court Jan. 30, 2023) (published), faced the situation where prevailing defendants in a Political Reform Act case were awarded discretionary attorney’s fees and costs of $896,896.60, with the lower court determining plaintiffs’ case was frivolous in nature.  The fee-shifting provision, Government Code section 91003(a), grants trial courts discretion to award attorney’s fees and costs “to a plaintiff or a defendant who prevails.” 

            The state supreme court, in a unanimous opinion authored by Chief Justice Guerrero, reversed and remanded.  It decided that an asymmetrical standard applies, such that the statutory provision is pro-plaintiff, and a defendant only can be awarded fees if the suit was objectively without foundation when brought or became so during its prosecution (borrowing from case law limitations in other civil rights and public interest contexts).  A remand was ordered so the lower court could determine if section 91003(a) fees and costs were warranted under the new standard and also could address defendants’ request for CCP §1021.5 fees (the latter request not considered by the trial judge given the 91003(a) ruling). 

Civil Rights, Special Fee Shifting Statutes: $40,295 Civil Harassment Fee Award To Prevailing Party Affirmed, Although Amended Fee Order To Add Another Party Was Void Based On The Prior Fee Award Appeal

Trial Judge Rejected Fee Request For Half Based On The Party-Client Agreement.

            In Aaronoff v. Olson, Case No. B295388 (2d Dist., Div. 2 Jan. 24, 2023) (unpublished), prevailing party in a civil harassment proceeding (where the trial judge has discretion to award prevailing party fees per CCP § 527.6(a)) awarded $40,295 to the prevailing party, even though that party only requested half subject to an agreement with the client.  The trial judge awarded the full $40,295 after finding that the half cut was too arbitrary.  The appellate court agreed that the trial judge was not constrained by the parties’ internal agreement as far as awarding fee-shifting fees under section 527.6.  With respect to an amended fee order adding a different party, that award was void because it was stayed due to the pre-order appeal before the amended order was issued.

Civil Rights: Under The California Voting Rights Act, “Cost Of Work Product” Includes Costs Incurred On Behalf Of Future Named Plaintiffs And A Contingency Attorney Advancing Costs On Behalf Of Client(s)

Other Interpretations Would Subvert The Remedial Purpose Of The Reimbursement Provisions.

            The California Voting Rights Act was passed by the state Legislature to address at-large elections tending to dilute the ability of minority groups to elect candidates (racial block voting), including provisions which allows a prospective plaintiff who gets an ordinance establishing district-based elections to be paid “cost of the work product” up to a $30,000 cap.  This reimbursement provision was at issue in Law Office of Carlos R. Perez v. Whittier Union High School Dist., Case No. B315375 (2d Dist., Div. 8 Jan. 11, 2023, but posted on Jan. 12) (published).

            Here is what the appellate court ruled in reversing denial of costs and attorney’s fees:  (1) a “prospective plaintiff” did not have to be the identification of a specific person formally retaining a law firm, but also encompasses a law firm working on behalf of one or more persons the law firm avers it can name as a plaintiff if the demand for correction is unsuccessful (although an ordinance was adopted in this matter); (2) a prospective plaintiff does not have to pay the actual “costs of work product,” with it being sufficient if the contingency law firm representing the plaintiff makes the outlay (which in this case was largely for an expert demographer and legal research by the law firm on the claim); and (3) the lower court would have to pass on any fee/costs requests under the private attorney general statute on remand.

Appealability, Civil Rights: Disabled Plaintiff Suing Defendant For Website Violations Under The Unruh Act Was Properly Assessed With Defense Attorney’s Fees Of $45,419.50 After Voluntarily Dismissing His Action

Plaintiff’s Injunctive Relief Allegations Triggered Civil Code Section 55, Which Allowed Fees To The Defense—Allegations Matter In These Cases.

            Sandoval v. Nippon Life Ins. Co. of America, Case No. E077245 (4^th Dist., Div. 2 Dec. 12, 2022) (unpublished) is an interesting disabled person website case which was voluntarily dismissed without prejudice after some discovery.  Plaintiff had alleged violations under the Unruh Act (although mentioning the ADA, which is incorporated into the Unruh Act), although he did not specifically plead a claim under the Disabled Persons Act (DPA).  Plaintiff voluntarily dismissed his Complaint without prejudice, and the lower court granted defendant $45,419.50 in attorney’s fees under Civil Code section 55.  Plaintiff appealed.

            But first, the panel had to face a jurisdictional issue.  Defendant argued that the fee order was not appealable because it was a costs award following on the heels of a non-appealable voluntary dismissal.  The appellate court found that the fee order was the equivalent of a costs award and, even though there was a split of opinion on the issue, it was appealable.  (Gassner v. Stasa, 30 Cal.App.5^th 346, 355 (2018).)

            On the merits, plaintiff argued there was no fee exposure because (a) under the ADA, a prevailing defendant can recover fees only if the ADA claim is found frivolous, something not found here (true—Jankey v. Lee, 55 Cal.4^th 1038, 1048 (2012)); and (b) under the Unruh Act, only a prevailing plaintiff can recover fees (true—Molski v. Arcero Wine Group, 164 Cal.App.4^th 786, 791 (2008)).   Although the DPA has a bilateral fee provision (Civ. Code, § 55), plaintiff argued there was no fee exposure because he did not plead a DPA claim.  The appellate court agreed with all of these conclusions, but it found that a broad prayer for injunctive relief under Plaintiff’s Complaint for potentially aggrieved persons triggered section 55 fee exposure because that injunctive relief is cumulative to injunctive relief under the Unruh Act and DPA.  So, section 55 fee exposure was triggered—with the moral being for plaintiffs in these type of cases, be careful of how you plead website cases if you want to avoid fee exposure.

Civil Rights, Multipliers, Reasonableness Of Fees: Ninth Circuit Confirms Significant Haircut To Serial ADA Plaintiff’s Attorney’s Fees And Costs Award

No Abuse Of Discretion In District’s Reduction Of Fees And Costs Award To $9,851 From The Requested $34,899 Where Work Was Routine And Boilerplate, There Was A Lack Of Opposition, And Much Of The Motion Practice Was Unnecessary.

            In Shayler v. 1310 PCH, LLC, Case No. 21-56130 (9^th Cir. October 24, 2022) (published), serial Americans with Disabilities Act plaintiff sued defendant  for failure to comply with regulatory requirements for accessible parking spaces.  Eight months later, plaintiff moved for summary judgment, to which defendant filed a notice of non-opposition.  Plaintiff nonetheless filed a reply brief, and – after being granted summary judgment – moved for $31,714 in attorneys’ fees and $3,185 in costs.

            Explaining that it found the hourly rates and time spent by plaintiff’s attorneys unreasonable – where two partner-level attorneys performed tasks that could have been performed by low level associates or paralegals, given the straightforward boilerplate filings in the case that did not involve complex legal issues or difficult factual discovery, and spent 17 hours on an unopposed motion for summary judgment, including 7 hours on the reply brief, the district court adopted a blended hourly rate of $300 used in similar cases and applied a 65% downward multiplier – resulting in a fees award of $7,896.  Additionally, the district court awarded reduced costs of $1,955 after taxing plaintiff’s request for reimbursement for a site inspector for which plaintiff provided no invoice and no reasonable explanation as to the inspector’s importance to the case.

            On appeal, plaintiff argued that the district court failed to provide an adequate explanation for the blended billing rate and downward multiplier.  Although the Ninth Circuit found the argument reasonable given case law on this issue (Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1111 (9^th Cir. 2014) [fee award vacated for district court’s failure to explain its use of a blended billing rate]; Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) [upward and downward multipliers must be justified]), it found that the district court provided a “concise but clear explanation” of the grounds for its decision – with a “concise but clear” explanation requiring only enough reasoning to enable meaningful appellate review. (Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Jankey v. Poop Deck, 537 F.3d 1122, 1133 (9th Cir. 2008) [discussed in our August 13, 2008 post]; Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992).)  Concluding that the district court’s explanations for the blended billing rate and downward multiplier sufficiently supported its reduced fee award, the Ninth Circuit found no abuse of discretion and affirmed.

Civil Rights, Special Fee Shifting Statutes: Website Accessibility Plaintiff’s Award Of $95,295.67 In Attorneys’ Fees And Costs, Under Civil Code Sections 51 And 52, Affirmed On Appeal

Defendant Could Not Renege On Joint Stipulation Wherein It Agreed That It Would Not Dispute Liability, And Would Not Dispute Plaintiff’s Entitlement To Fees/Costs Under Civil Code Sections 51 And 52.

            In Gutierrez v. Chopard, Case No. B309098 (2d Dist., Div. 5 August 19, 2022) (published), plaintiff, who is legally blind, filed a complaint alleging defendant violated the Unruh Civil Rights Act and Title III of the ADA by not providing visually-impaired persons equal access to its website. After defendant’s unsuccessful motions to strike the complaint and for summary judgment, the parties entered into a confidential settlement agreement.  The settlement agreement was not included in the record on appeal, but a Joint Stipulation Re: Conditional Settlement of All Claims that was executed and filed by the parties was included.    Under the joint stipulation, defendant agreed it would not dispute its liability, and would not dispute plaintiff’s entitlement to attorneys’ fees and costs under Civil Code sections 51 and 52. 

            After plaintiff was awarded $95,295.67 in attorneys’ fees and costs, through an opposed noticed motion, defendant appealed – claiming that plaintiff was not entitled to attorneys’ fees.  Defendant argued that plaintiff had neither a finding nor admission of liability as required for an award of fees/costs under the Unruh Act as the agreements contained in the joint stipulation were superseded and replaced by those in the confidential settlement agreement.  The 2/5 DCA did not buy into this argument – finding it to be nothing more than a red herring at best – with defendant’s own counsel admitting at oral argument that the joint stipulation and settlement agreement were “substantively identical.”  Plaintiff’s fees/costs award was affirmed, with the panel finding defendant was bound by, and could not renege on, the agreements contained in the joint stipulation.

Civil Rights: EAJA Attorney’s Fees Were Properly Denied In Immigration Matter Where It Took A Ninth Circuit En Banc Panel To Decide, Over The Vote Of Three Dissenting Justices, On The Ultimate Merits Issue.

Novelty And First Impression Of The Issue Showed That The Government’s Position Was Substantially Justified For EAJA Purposes.

            In Medina Tovar v. Zuchowski, No. 21-35664 (9^th Cir. July 21, 2022) (published), plaintiffs invalidated a regulation limiting derivative U-visas to spouses married at the time of the filing of the principal petition.  Plaintiffs moved for costs and attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, but the district court denied the request because it concluded the government’s position was substantially justified.  The Ninth Circuit affirmed.  Simply because plaintiffs prevailed was insufficient, not creating any adverse presumption in favor of a costs/fee recovery.  Here, there was a novel, first impression issue which took an en banc circuit court to ultimately decide, over the votes of three dissenting justices and with the prior three judge decision being 2-1 on the merits issue.  The government’s position was not out of bounds. 

Civil Rights, Landlord/Tenant: Frivolous FEHA Case By Plaintiffs In Rental Dispute Justified $228,123.77 Attorney’s Fees, Expert Fees, And Costs Award In Favor Of Prevailing Defendant Owner

No Abuse Of Discretion Shown, With Prior Denial Of Summary Judgment Not Disqualifying Owner From Award Of FEHA Fees Under The Right Circumstances.

            FEHA has a pro-plaintiff fee shifting statute; however, under the right circumstances, a prevailing defendant can obtain fee shifting against a plaintiff where the case is shown to be frivolous in nature.

            That was the case in Bonhage v. Rawson, Case Nos. H047362 et al. (6^th Dist. July 18, 2022) (unpublished), which involved two plaintiff friends’ Unruh Act and FEHA case against defendant owners and brokers for failing to rent to them based on “unmarried persons” discrimination.  Brokers got out on a summary judgment motion, owner’s summary judgment motion was denied, and plaintiffs lost their case against owner after a full trial.  The lower court determined plaintiffs’ case was frivolous, awarding owner $228,123.77 in attorney’s fees, expert fees, and other costs under the FEHA statutory provision.

            The result was affirmed on appeal.  Under an abuse of discretion standard, the lower court could conclude that plaintiffs had no evidence of discrimination, especially given that the owner had rented to other unmarried couples before, and that the rental transaction fell out because the plaintiffs could not agree on a rental sharing agreement.  Finally, the caselaw in this area shows that a prior denial of a summary judgment to an eventually prevailing defendant does not disqualify that defendant from a frivolous FEHA fee recovery.

Civil Rights, Default Judgments: Ninth Circuit Reverses District Judge’s Entry Of ADA Fees Pursuant To Local Schedule For Default Judgments Rather Than Entertain Fee Motion Requesting Lodestar Fees Where Plaintiff Opted For The Non-Fee Schedule Option

This Was A 2-1 Decision, With The Dissent Indicating Plaintiff Did Not Properly Tee This Issue Up Before The District Judge.

            The Ninth Circuit, in the 2-1 decision of Machowski v. 333 N. Placentia Property, LLC, No. 21-55673 (9^th Cir. July 1, 2022) (published), decided that where an ADA plaintiff indicates that the litigant will file an attorney’s fees motion, such an indication signals that the litigant is opting out of having default judgment attorney’s fees determined by a local C.D. California district court schedule and wants to request additional fees through a noticed motion.  The district judge sua sponte only entered the scheduled fees of $1,000 in connection with the default judgment, with the Ninth Circuit vacating the fee award and remanding so that plaintiff’s increased fee request could be entertained.  The dissent believed that plaintiff’s indication was not clear enough to override what the district judge did in the absence of having actual proof of what increased fees were being sought.  The majority opinion also found that the local rule allowing fee motions to be filed 14 days after entry of a judgment took precedence over the default judgment local rule stating that the increased fee request had to be filed immediately upon entry of the default judgment.

            There actually are some open issues left undecided by both the majority and dissenting opinions.  The first issue is whether the local rule applies at all where only nonmonetary (injunctive) relief is awarded under a default judgment.  The second is whether an attorney’s fees award under the Central District fee schedule is a reasonable fee under the ADA.  The third issue is whether the ADA mandates the use of a lodestar method in awarding fees.  Stay tuned for some more jurisprudence down the line!

Civil Rights, Costs: Costs Relating To Non-FEHA Claims Affirmed, But Remand To Determine If Some Costs Were Justified Because FEHA Claim Was Frivolous

Lack Of Trial Court Findings Required A Limited Remand On Possible FEHA Costs.

            In a FEHA/non-FEHA mixed case, routine costs that true non-FEHA claim costs are recoverable but that overlapping FEHA/non-FEHA claim costs which cannot be apportioned can only be recovered if the FEHA claim was frivolous.  (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4^th 1040, 1059.)

            Roman helped decide what costs were and were not recoverable in Williams v. Simpson Strong-Tie Company, Inc., Case No. A162992 (1^st Dist., Div. 5 June 28, 2022) (unpublished).  Plaintiff lost a mixed FEHA/non-FEHA case, but he appealed a $46,227.63 cost award to defendant.  Because many of the costs were non-FEHA related based on the juncture of the case or were not challenged, $33,728.99 in costs were sustained.  As to the remaining $12,498.64 in costs incurred when both FEHA and non-FEHA claims were at issue, the matter was remanded for further proceedings because the lower court failed to determine if the FEHA case was frivolous or whether the costs were allocable. 

Fees, Civil Rights, Employment: USDC Central District Judge Awards Full Freight Fee Award In Waiting-Time Penalties Case

Judge Finds That Fee Award Of $342,782.50 Is Reasonable In Waiting-Time Penalties Case.

        On June 17, 2022, the Hon. R. Gary Klausner issued a fee award to the prevailing plaintiff in a waiting-time penalties case. Caley Rae Pavillard v. Ignite International, Ltd. et al., USDC Central District No. 2:21-cv-01306-RGK-Ex.

        Though the fee award is not part of a published opinion, it is interesting in several respects. 

        First, this case arose out of what should have been a payment of $3,000 to plaintiff for her modeling work during a photo shoot. The court describes the factual background: "The shoot took place on October 5, 2018. However, despite Plaintiff's request for payment, Defendant did not pay her wages until May 22, 2020 -- nearly two years later. On that date, Defendant wired $3,000 to Plaintiff's agent, LA Models, who took a 20% cut and sent the remaining amount to Plaintiff." 

         Second, while it would seem unusual for a $3,000 case to generate $342,782.50 in fees, keep in mind that thirty days of waiting time penalties could amount to $3,000 X 30 = $90,000 -- and here, payment was not made immediately after 30 days, but rather made only after more than 1 1/2 years. And the Labor Code provided a basis for awarding attorney's fees.

        Third, Judge Klausner considered the bases for the award: the legal basis for fee entitlement and the reasonableness of the request: reasonableness of hourly rates, reasonableness of hours expended, and reasonableness of a lodestar multiplier of 1.5. A request for a lodestar multiplier was rejected by the judge.

        Fourth, the judge considered that the case lasted 2 years, proceeded to a jury trial, and plaintiff "achieved complete success."

        COMMENT: Defendant could have had a better outcome by timely paying $3,000. Indeed, Defendant would have had a better outcome if the waiting-time penalties had been paid, without proceeding to a jury trial. If the fee award is upheld on appeal, Defendant will be on the hook for the fee award, and will have likely incurred significant attorney's fees defending itself. While an attorney's fees award can be appealed by a defendant, it may well be an uphill battle when an experienced judge who has participated in a jury trial considers and analyzes the factors that support a fee award, and incidentally, denies plaintiff's request for a lodestar multiplier. And appeals to the 9th Circuit are not inexpensive.

        

Civil Rights: Civil Rights Plaintiff Not Entitled To Attorney’s Fees For Just Defeating A Defense Qualified Immunity Motion Were The Case Was Proceeding To Trial

Prevailing Party Can Only Be Determined After A Trial On The Merits.

            In Senn v. Smith, Case No. 21-35293 (9^th Cir. June 8, 2022) (published), plaintiff brought an excessive force 42 U.S.C. § 1983 claim against certain defendants, obtaining a denial of the defense motion for qualified immunity—a determination affirmed on appeal.  Plaintiff moved for recovery of attorney’s fees under the § 1988(b) civil rights statute based upon being a “prevailing party” after the Ninth Circuit affirmed the denial of qualified immunity and remanded for trial in an unpublished disposition.  The Ninth Circuit denied the fee request as premature because no trial had yet been held so that a prevailing party determination could not be made.  Although plaintiff lived for another day, a merits determination needed to be made for purposes of determining prevailing party status. 

Civil Rights: Trial Court’s 75% Reduction Of FEHA Attorney’s Fees, After Specific Entry Reductions, Was Reversed Because Limited Success Analysis Was Flawed

Evidence On Unsuccessful Claims Was Probative On Successful Claims, So Reduction Needed To Be Restudied. 

            In Vines v. O’Reilly Auto Enterprises, LLC, Case No. B301000 (2d Dist., Div. 7 Jan. 21, 2022) (published), a FEHA plaintiff won on two out of six causes of action, recovering $140,400 on retaliation/failure to prevent retaliation claims, but losing on race discrimination (disparate treatment) and harassment claims.  Plaintiff then moved for $809,681.25 in FEHA attorney’s fees (lodestar of $647,745 with a 1.25 multiplier).  The lower court refused to award a multiplier and made specific reductions of $129,583.23 for specific entries, but then made a 75% reduction in the remaining amount based on the view that work on the unsuccessful claims was not helpful on the successful claims—awarding plaintiff a fee total of $129,540.44.    The 2/7 DCA panel reversed.  The real problem here was that the “limited success” analysis of the lower court was flawed, given that some of the work on the unsuccessful work was probative on the successful work.  So, the lower court had to determine what amount more from the lodestar minus specific billing reductions ($518,161.77) had to be awarded after conducting a new “limited success” analysis.

Arbitration, Civil Rights, Employment: Employee’s Petition For Writ Of Mandate Granted Where Employer Was Awarded $6,912 In Attorney Fees For Successfully Bringing Motion To Compel Arbitration Of FEHA Claims

Based On The Standards Set Forth For Imposition Of Fees Under FEHA, Employer’s Arbitration Agreement Did Not Authorize Recovery Of Attorney Fees Absent A Finding That Employee’s Opposition To Motion To Compel Arbitration Was Groundless.

            California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) provides that a prevailing FEHA defendant may not recover attorney fees or costs absent a finding that the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. (§ 12965(b).)

            In Patterson v. Superior Court, Case No. B312411, (2d Dist., Div. 7 October 18, 2021) (published), employer successfully sought to compel arbitration of plaintiff employee’s FEHA claims.  Afterward, employer sought $10,583 in attorney fees pursuant to a prevailing party fee provision in its arbitration agreement – with the trial court awarding it $6,912 in fees and determining that the standard set forth in § 12965(b) applied only after adjudication of the case on the merits.

            Employee petitioned for writ of mandate – with the question before the 2/7 DCA being whether an employer’s arbitration agreement may authorize the recovery of attorney fees for a successful motion to compel arbitration of a FEHA lawsuit even if the plaintiff’s opposition to arbitration was not frivolous, unreasonable or groundless.     

            Pursuant to the standards set forth under FEHA regarding the imposition of fees and costs, the answer was no – with the panel concluding “[b]ecause a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee’s access to court in a FEHA case absent section 12965(b)’s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff’s opposition was groundless.”

            The panel granted employee’s petition and directed the trial court to vacate its order granting employer’s fees and to conduct a new hearing on the fee request to determine whether employee’s opposition to the motion to compel arbitration was frivolous, unreasonable or groundless.

Civil Rights, Lodestar, Reasonableness Of Fees: $1,113,750 In FEHA Attorney’s Fees In Racial Discrimination/Retaliation Case Garnering $450,001 Compensatory Award To Successful Plaintiff Was No Abuse Of Discretion

Hourly Rate, Lodestar, And Multiplier Conclusions Were Not Beyond Reason.

            Plaintiff in Sterling v. County of Sacramento, Case No. C089616 (3d Dist. Sept. 7, 2021) (unpublished) won $450,001 in compensatory damages under FEHA racial discrimination/retaliation claims.  Plaintiff then moved for over $1.515 million in fees (lodestar plus a positive 2 multiplier enhancement).  The lower court basically sustained the lodestar request, but it instead awarded a 1.5 positive multiplier such that the FEHA fee award was $1,113,750.

            The Third District affirmed the merit and fee results.  The lower court did a proper lodestar analysis, not having to accept “padding” challenges or the defense suggestion that no more than $580,635 should be awarded as fees.  The trial judge awarded an hourly rate of $550 for the lead attorney, which was no abuse of discretion given expert testimony indicating that $650-695 per hour would be justified and given past awards to the attorney above $550.

Civil Rights, Costs: California Supreme Court Holds That Government Code Section 12965(b) Applies To Costs On Appeal And Vacates Award Of Costs On Appeal To Prevailing FEHA Defendant

The Court Of Appeal Made No Findings As To Whether FEHA Plaintiff’s Claims Were Objectively Groundless.

            In our Year In Review post of the top 30 decisions in 2020, we included as No. 22 the case of Ducksworth v. Tri-Modal Distribution Services, 47 Cal.App.5^th 532 which had been granted review by the California Supreme Court for determination as to whether it was proper for the Court of Appeal to award costs on appeal under CRC, Rule 8.278 against an unsuccessful FEHA claimant in the absence of a finding that the underlying claims were objectively frivolous. 

            That question was answered in Pollock v. Tri-Modal Distribution Services, Inc., Case No. S262699 (Cal. Supreme Court July 26, 2021) with the Cal. Supreme Court’s holding that Gov. Code § 12965(b) applies to costs on appeal.  In a 7-0 opinion authored by Justice Liu, the Cal. Supreme Court concluded that an appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff’s action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so.

            Additionally, the Court of Appeal’s judgment affirming the trial court’s summary judgment order on a statute of limitations administrative claims issue was reversed, with remand back to the Court of Appeal for the purpose of being remanded back to the trial court for further proceedings – with the Cal. Supreme Court determining that both the trial court and Court of Appeal applied the wrong standard in determining when the statute of limitations began to run.

Civil Rights: Partial Reversal Of FEHA Plaintiff’s Wins Necessitated A Reevaluation Of The Attorney Fees Awarded To Him

Government Code § 12965(b) Authorizes A Court To Award Reasonable Attorney Fees To The Prevailing Party In A FEHA Action, But The Trial Court Has Discretion To Reduce The Award Where, As Here, A Plaintiff Achieves Only Limited Success.

            In Moinuddin v. State of Cal., Dept. of Transportation, Case No. B297674 (2d Dist., Div. 5 June 23, 2021) (unpublished), a jury found in favor of demoted FEHA plaintiff on his three causes of action – discrimination, retaliation, and failure to prevent both.  However, the jury awarded plaintiff no damages, concluding employer would have taken the same actions without discriminatory and retaliatory motives because plaintiff’s job performance was poor.   Judgment entered in plaintiff’s favor included the declaratory relief and some of the injunctive relief plaintiff requested through post-verdict motions.  Additionally, the trial court awarded plaintiff $610,330 out of a requested $1,205,864.25 in attorney fees after making reductions to the requested hourly rates, disallowing hours billed by paralegals performing clerical tasks, and denying plaintiff’s request for a 1.5 multiplier. 

            The 2/5 DCA partially reversed.  Because plaintiff did not make the request in his complaint, the panel struck the award of declaratory relief from the judgment. (Davis v. Farmers Ins. Exchange, 245 Cal.App.4th 1302, 1326 (2016).)  Additionally, the panel struck from the judgment the injunction compelling employer to comply with FEHA’s discrimination and retaliation protections – finding the trial court “overstep[ped] its authority” by essentially ordering employer to obey the law. (City of Redlands v. County of San Bernardino, 96 Cal.App.4th 398, 416 (2002).)  Finally, although Gov. Code § 12965(b) authorizes a court to award reasonable attorney fees to the prevailing party in a FEHA action, the trial court has discretion to reduce the award where, as here, a plaintiff achieves limited success.  Because the appellate panel reversed part of the relief plaintiff achieved, it also struck plaintiff’s fee award and remanded for a determination by the trial court as to whether to award the same or a different amount of fees. 

Appeal Sanctions, Civil Rights: 2/5 DCA Imposes Sanctions Against County Of Los Angeles For Frivolous Appeal Of Trial Court’s FEHA Fee Denial Based On Finding That Former Employee Plaintiff’s Claims Were Not Frivolous, Vexatious Or Unreasonable

Although The 2/5 DCA Initially Considered Imposing $8,500 Against County, It Ultimately Reduced The Appeal Sanctions To $900 Based On Contrition Shown By County’s Counsel.

            In Sepah v. County of L.A. Dept. of Mental Health, Case No. B297642 (2d Dist., Div. 5 March 25, 2021) (unpublished), former employee sued the County of Los Angeles, after termination of her position as a jail psychiatrist, claiming three FEHA violations for discrimination and retaliation, and other whistleblower retaliation and defamation claims.  The trial court summarily adjudicated the FEHA claims  and defamation claim in County’s favor and the remaining causes of action went in County’s favor at trial.  Afterward, County sought in excess of $500,000 in attorney fees and costs – an amount that included work performed on both FEHA and non-FEHA claims – pursuant to Gov. Code § 12965(b), which authorizes an award of fees to a prevailing FEHA defendant if plaintiff’s claims were frivolous or without foundation.  County appealed when the trial court denied its fee request in its entirety – expressly finding that Plaintiff’s action was not frivolous, vexatious or unreasonable.

            County’s appeal did not sit well with the 2/5 DCA.  County pursued the appeal despite the appellate panel’s decision on Plaintiff’s earlier appeal – wherein the 2/5 DCA reversed the trial court’s summary adjudication on Plaintiff’s defamation claim based upon its determination that Plaintiff had raised a triable issue of material fact, and further proceedings on that claim were warranted on remand.   Three months after the panel’s decision in Plaintiff’s earlier appeal, County filed its opening brief.  By that time, any question as to whether Plaintiff’s lawsuit had been filed without foundation had clearly been resolved.

            After the filing of respondent’s and reply briefs, the 2/5 DCA gave notice that it was considering $8,500 in sanctions against County for pursuing a frivolous appeal.  The panel found the County’s conscious disregard of the outcome from the earlier appeal and its “slapdash” briefing supported a finding that the appeal was frivolous – brought primarily for its vexatious effect.  However, because County’s counsel had shown contrition in response to the 2/5 DCA’s notice re appeal sanctions, the panel imposed only $900 in sanctions on its own motion.  (Cal. Rules of Court, Rule 8.276(a)(1).)