CALIFORNIA ATTORNEY'S FEES

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).)

Civil Rights, Costs, Special Fee-Shifting Statutes: Ninth Circuit Vacates And Remands $5,962.11 Costs Award To Defendant Landlord Prevailing On Summary Judgment Against Plaintiff Tenant Claiming Race And Disability Discrimination

In So Doing, The Ninth Circuit Joins The First, Second, Fourth, and Fifth Circuits In Holding That The Christiansburg Standard Applies To The Award Of Attorney’s Fees And Costs Under The Fair Housing Act.

            The U.S. Supreme Court, in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), held that, under the fee-shifting provision of Title VII of the Civil Rights Act (42 U.S.C. § 2000e-5(k)), attorney’s fees should be awarded to a prevailing defendant only if the plaintiff’s claim was frivolous, unreasonable or without foundation.

            In Rodney Green, Sr. v. Mercy Housing, Inc., Case Nos. 20-15134/20-15358 (9^th Cir. March 19, 2021) (published), plaintiff tenant appealed the district court’s granting of summary judgment to defendant landlord and subsequent award of $5,962.11 in costs.  The Ninth Circuit reversed and remanded in part the grant of summary judgment in a separate memorandum opinion.

            As to the costs award, plaintiff  - with claims of racial and disability discrimination in violation of the Fair Housing Act and the California Fair Employment and Housing Act – argued that the district court abused its discretion in awarding costs to defendant without applying the Christiansburg standard and making a determination as to whether plaintiff’s claims were frivolous, unreasonable or groundless.  The Ninth Circuit agreed – joining the First, Second, Fourth, and Fifth Circuits – in holding that the Christiansburg standard applies to the FHA, where the danger of chilling civil rights enforcement based on the risk of incurring costs even in the strongest of claims is as equally present in a tenant’s Fair Housing case as it is in an employee’s Title VII case.

            Contrary to defendant’s claim that the fee-shifting provisions of the FHA and ADA are distinguishable, the Ninth Circuit found that costs are treated as parallel to – rather than as a subset of – attorney’s fees under both the FHA and ADA. (Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001).) 

Allocation, Civil Rights, Costs, Employment: Former Employer Properly Was Denied Attorney’s Fees Where FEHA Case Had Some Substance

However, 2/3 DCA Follows Roman Opinion On When To Award Costs On Non-FEHA Claims.

            In Chevreaux v. Long Beach Memorial Medical Center, Case Nos. B291268/B292937 (2d Dist., Div. 3 Feb. 24, 2021) (unpublished), a jury returned a defense verdict in favor of a former employer on a non-FEHA, Tameny retaliation claim after she dismissed two FEHA claims (age discrimination and a CFCA violation) on the eve of trial.   The lower court subsequently denied attorney’s fees to defendant after finding the dismissed FEHA claims were not baseless.  The trial judge also granted plaintiff’s motion to tax costs finding he could not award any costs to the defense because it did not apportion the costs expended to defend non-FEHA claims from those attributable to its defense of her FEHA claims, as required by the 2/7 DCA’s decision in Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1059 (2015). 

            The 2/3 DCA mainly affirmed, but it reversed and remanded to see if the defense might be awarded some routine costs for jury fees, court reporter fees, and trial exhibits.  It agreed that there was enough evidence to show an inference of age discrimination because plaintiff, aged 62, was replaced with women who were 50 and 44 even though the claims were dismissed before trial.  This Division also agreed with the reasoning in Roman, which allows a lower court discretion to see if non-FEHA claims did not overlap so as to be able to apportion out costs not related to the nonfrivolous FEHA claims.  Because the jury only considered one non-FEHA claim, it was fair game for the trial judge make factual determinations as far as awarding jury fees, court reporter fees, and trial exhibit costs in favor of the defense (considering whether the costs were reasonable, necessary, and whether there was an agreement to split court reporter fees). 

Civil Rights: Plaintiff Winning $25,000 FEHA Judgment After Five-Day Jury Trial Properly Awarded Reduced Fee Recovery Of $141,165

Plaintiff Requested $492,000 In Fees (Inclusive Of A 1.5 Multiplier).

            You might think the plaintiff appealed in this one, but he did not.  The defense appealed the fee recovery, even though the trial judge had awarded a much lower fee recovery from the opening request.

            In Velez v. Kohl Building Maintenance, Inc., Case No. B300253 (2d Dist., Div. 1 Feb. 2, 2021) (unpublished), plaintiff won a very contested 5-day FEHA jury trial to the tune of $25,000 on discrimination/failure to accommodate claims (but losing on a retaliation claim and losing an attempt to garner punitive damages).  Plaintiff then moved to recover a $492,000 FEHA fee award ($328,000 lodestar and a 1.5 multiplier).  The defense contested that no fees were warranted based on Chavez v. City of Los Angeles, 47 Cal.4^th 970 (2010) [our Leading Case No. 13], because the case could have been tried as a limited case.  The trial judge rejected that notion, but did reduce for block billing, duplication (especially a new group of lawyers getting up to speed), excessive hourly rates for the experience of the attorneys involved, lack of success on the one claim, and unnecessary multiple attendance of attorneys at court appearances/trial. 

            The defense appealed in this one, but appellant gained no reversal of fortune on appeal.  The problem with reliance on Chavez for an outright denial is that this decision is discretionary, with there being some claims which certainly would lead a prudent plaintiff’s attorney to not bring the case as a limited matter.  The reductions in amount were substantial, with the law in the FEHA area being that the fee award does not need to be proportional to the damages obtained—especially after a 5-day jury trial.  

Civil Rights: $3,164,955.61 Fee Award Under The California Voting Rights Act Affirmed Where Plaintiffs Successfully Challenged City Of Santa Clara’s At-Large City Council Elections

Plaintiffs Can Also Seek Compensation For Postjudgment Fee Work Before The Superior Court After Remittitur Issuance.

            The California Voting Rights Act, Elections Code section 14030, has a pro-plaintiff, private attorney general-type of fee shifting provision, which states: “ . . . the court shall allow the prevailing plaintiff party, other than the state or political subdivision thereof, a reasonable attorney's fee consistent with the standards established in Serrano v. Priest (1977) 20 Cal.3d 25, 48-49, and litigation expenses including, but not limited to, expert witness fees and expenses as part of the costs.  Prevailing defendant parties shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.”  That provision benefited the winning plaintiffs in the next case we post on.

            Five Asian American residents successfully sued the City of Santa Clara under the Voting Rights Act, winning their contention that the at-large elections for the city council’s office violated the Act.  The trial judge also awarded them $3,164,955.61 in attorney’s fees under section 14030, after it struck some unrecoverable time and reduced in part the lodestar and accompanying multiplier request.

            City’s appeal in Yumori-Kaku v. City of Santa Clara, Case Nos. H046105/H046696 (6^th Dist. Dec. 30, 2020) (published) did not change either the merits or fee results.  City argued that the merits decision was wrong as the only basis for overturning the fees; when the merits judgment was affirmed, that meant the fee award stood also.  The appellate court further indicated that plaintiffs could seek postjudgment fees, including those for appellate work, before the superior court after issuance of the remittitur. 

Arbitration, Civil Rights, Costs: 4/3 DCA Reverses Fees Awarded To FEHA Defendants For Motion To Compel Arbitration Efforts And Costs Awarded For Prevailing In The Arbitration

Plaintiffs Achieved Partial Success In Their Opposition To Defendants’ Motion To Compel Arbitration, And Fees/Costs Are Not Awardable To Prevailing FEHA Defendant, Pursuant To Gov. Code § 12965(b), Unless The Court Finds Action Was Frivolous, Unreasonable, Or Groundless When Brought, Or The Plaintiff Continued To Litigate After It Became Clearly So.

            In Humphrey v. Harvest Holdings, Case No. G056614 (4^th Dist., Div. 3 December 11, 2020) (unpublished), plaintiffs opposed FEHA defendants’ motion to compel arbitration with limited success – with the trial court determining a confidentiality provision in the arbitration agreement was unconscionable, but severable, and compelling arbitration.  Defendants defeated plaintiffs’ FEHA claims in arbitration, and the arbitrator awarded defendants $3,181.35 in costs – consisting of copying charges and deposition transcript fees – as the prevailing party.  Additionally, the arbitrator awarded defendants $10,000 in attorney fees for their motion to compel arbitration efforts.  The trial court entered judgment confirming the arbitration award and denied plaintiffs’ cross-petition to vacate the arbitration award.  As to the fees/costs issue, the trial court concluded that analysis under FEHA was not necessary because prevailing defendants did not seek fees incurred for the arbitration proceedings – only for the motion to compel arbitration. 

            In a 3-0 opinion authored by Justice Goethals, the 4/3 DCA reversed in their entirety the fees and costs awarded to prevailing defendants.

            Plaintiffs’ opposition to defendants’ motion to compel arbitration achieved some success – demonstrating plaintiffs’ opposition was not frivolous, unreasonable, or groundless (the minimum threshold for FEHA defendants to recover fees under Chavez v. City of Los Angeles, 47 Cal.4th 970, 985 (2010)), so fees incurred by defendants to compel arbitration were not recoverable.  Likewise, the California Supreme Court, under Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 107-109, 115 (2015) has extended that rule to apply to costs (see also Gov. Code § 12965(b).).   

            Finally, although former employer’s contract with plaintiffs contained an arbitration provision with a separate attorney fees and costs clause for the successful party on a motion to compel arbitration, the fee-shifting nature of the clause risked a chilling effect on employees’ access to court on FEHA claims.

Civil Rights, In The News: Lawyer Winning $1 From Jury, In Federal Civil Rights Case, Was Awarded $1 In Attorney’s Fees And $862 In Costs Arising From Police Snatching Of A Pen

$44,800 In Fees Requested, But Symbolic Victory Only Entitled A Nominal Fee Award—This Was Not A Federal Case; “Don’t Make A Federal Case Out Of That.”

            An attorney got into an altercation at a police headquarters when attempting to serve a lawsuit.  The police’s office for receipt for service was closed, and two officers refused to accept service, with one officer grabbing the attorney’s writing pen away from him as the attorney was attempting to write down the officer’s name and shield number—even though the officer had a relatively minor reprimand by a Civilian Complaint Review Board.  The attorney also alleged that another officer threw the legal papers at the attorney, an allegation which was not proven later on.  Believe it or not, the attorney filed a federal civil rights and state tort suit against the City of New York and various individual defendants, primarily law enforcement officers—mainly seeking compensatory and punitive damages.

            After many of the claims were dismissed both pretrial and during trial (with the federal district judge signaling punitive damages were unwarranted), attorney eventually recovered a $1 jury verdict (no punitive damages) and then sought to recover $44,800 in fees as well as $862 in costs (only with respect to trial costs). 

            Chief U.S. District Judge Colleen McMahon of the Southern District of New York federal court, in Rothman v. The City of New York, Case No. 19 Civ. 225 (CM) (S.D.N.Y. Nov. 30, 2020 Opinion and Order on Motion for Attorney’s Fees, Doc. No. 171), awarded attorney $1 in attorney’s fees and $862 in costs. 

            The main problem for the prevailing plaintiff attorney, although there is a federal civil rights fee-shifting statute, was that his victory was nominal and really symbolic in nature, not benefitting the public at large.  The degree of success is a critical factor in the civil rights area, with plaintiff not achieving a meaningful victory.  Although he argued that the other side would not settle, the district judge had to observe that his demands never went below five figures such that this argument was not persuasive because those demands could be prudently rejected. 

            Here is a great quote from this decision: “Once upon a time, we urged people not to make too much of real but petty grievances by saying, ‘Don’t make a federal case out of that.’  This lawsuit was a violation of that principle writ large.” 

Civil Rights: FEHA Slight Wins On One Claim Can Result In Far-Outpacing Fee Awards

Ted Bacon Of AlvaradoSmith Provided A “Real Life” War Story Illustrating The Point.

            During a two-hour sexual harassment mandatory training session, Ted Bacon of AlvaradoSmith provided a “real life” war story about how the liberal, pro-plaintiff FEHA fee shifting statute can still result in a fee award which dwarfs a plaintiff’s compensatory recovery.  What happened in one FEHA case that Ted litigated was plaintiff recovered only one of several FEHA claims, winning $10,000 in compensatory damages and $10,000 in punitive damages.  However, plaintiff also recouped $140,000 in FEHA fees, so that a $20,000 verdict turned into a total $160,000 exposure for the defense.  Just goes to show you how FEHA fees are the “tail that wags the litigation dog” in many instances. 

Civil Rights: $107,721 Fee Award Against Plaintiff Under 42 U.S.C. § 1988 Went Away On Appeal

Plaintiff’s Due Process Claims Were Not Frivolous—Timing Was Everything!

            Plaintiff, in Nemer v. City of Mill Valley, Case No. A159224 (1^st Dist., Div. 2 Oct. 28, 2020) (unpublished), was hit with a $107,721 adverse attorney’s fees award under 42 U.S.C. § 1988 based on the lower court’s perception that his due process claims were frivolous based on a summary judgment grant in City’s favor.  That result went away as a matter of law on appeal.  Plaintiff did get past a demurrer, and his real claim was for post-design review approvals which led the appellate court in a prior decision to determine that City did not determine its right to judgment as a matter of law.  Based on these circumstances, the fee award was reversed.

Civil Rights: $242,672 Attorney’s Fees/Costs Award Under Disability Statutes Reversed As A Matter Of Law

No Violation of Law Shown Under Various Disability Statutes, With Catalyst And Prelitigation Demand Contentions Not Helping Either.

            Because construction/website disability claims are flooding the federal and state courts, Skaff v. Rio Nido Roadhouse, Case Nos. A152462/A153606 (1^st Dist., Div. 1 Oct. 5, 2020) (published) is a case showing that the judiciary is eyeballing these claims closely where attorney’s fees and costs are the main thrust of the claims—especially where there are no triggering new construction alterations and all the remediations have been made.  This case has an excellent discussion of remedies and fees/costs analysis under Health and Safety Code section 19955, the American with Disabilities Act (ADA), the Unruh Act, and the Disabled Persons Act.

            In Skaff, disabled plaintiff asserted two claims, one under Health and Safety Code section 19955 et seq. and the second under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.).  The thrust of the claims was that plaintiff visited The Roadhouse, a restaurant and bar located near Guerneville in Sonoma County, on a fall 2012 day where there were two San Francisco team televised events such that he could not find a space to accommodate his van even though there were van accessible spaces – though already occupied—in short, a full parking lot.  After plaintiff’s visit and an exchange with a Roadhouse representative, the accessibility concerns were remediated as essentially stipulated to during the subsequent trial.  After a 12-day bench trial, the lower court ultimately concluded that plaintiff prevailed on the section 19955 claim, even though plaintiff’s counsel withdrew a request for injunctive relief, based upon catalyst/prelitigation demand “retroactive” theories.  However, plaintiff lost his Unruh Act claim because he only encountered a full parking lot and never encountered other alleged ADA non-compliance issues.  The trial judge did grant in part plaintiff’s Unruh Act fee request for $242,672 in fees/costs (with almost $193,000 being the fee component).

            All of that went POOF! on appeal as a matter of law, after an enlightening analysis of construction disability liability claims under both federal and state statutes.

            On the section 19955 claim, because it does not contain an ongoing obligation for existing facilities to remedy barriers to access (only those alterations which trigger state access regulations), no liability occurred because The Roadhouse was not new construction and had not undergone any alterations triggering compliance—triggers conceded by plaintiff’s counsel during trial.  So, could fees be based on a catalyst theory under section 19955?  No, also.  The catalyst theory contemplates a situation where the case was not fully litigated to final judgment; but, even if this is not a requirement, there was no legal merit of the claim because no accessibility modifications were required under the California Building Code. 

            That took plaintiff to arguing that fees were warranted on the basis of the Unruh Act claim (supplemented by the structural barrier definition under the ADA). The major problem here was that plaintiff did not prevail on this claim and, additionally, plaintiff only encountered a full parking lot, as well as not encountering any issues on non-parking ADA violations because he drove away. 

            Finally, in a “hail Mary” attempt, plaintiff argued fees were allowable under Code of Civil Procedure section 1032, but this only applies to routine statutory costs, not an award of attorney’s fees.

            BLOG COMMENT—Although many construction disability cases are resolved before a legal adjudication, the discussion of remedies and fee availability under federal and state statutes should aid judges, mediators, the bar, and clients in general, both at pre-trial and especially trial phases of litigation.

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).)