CALIFORNIA ATTORNEY'S FEES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel Agrees With Reasoning In Arave Opinion So Holding.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Allocation/Civil Rights/Costs/Reasonableness Of Fees: $158,880.50 Fee Award To Unruh Act Plntf Remanded For Review To Exclude Fees For A Co-Defendant’s Work, Limited Success In Light Of injunctive Modification, And Elimination Of Clerical Work Billing

Costs Award Affirmed, But Fee Award Remanded For A Further Re-Do.

             In Hernandez v. Starbucks Coffee Co., Case Nos. H042848/H043393 (6^th Dist. June 20, 2018) (unpublished), plaintiff successfully sued Starbucks for Unruh Act accessibility barrier discrimination at a San Jose store. Plaintiff was awarded statutory damages of $4,000 (although not winning all accessibility claims) and $158,880.50 in attorney’s fees (out of a requested $170,880.50) and a majority of its $8,260.39 in costs. Starbucks appealed.

            It raised a litany of challenges to both awards. A few resonated so as to require a remand.

            The appellate court found that costs associated with an unsuccessful summary judgment motion and oversized copies/scans of exhibits were properly found to be necessary to the litigation or useful to the trier of fact.

         With respect to fees, here is how things panned out:

• Given that the appellate court modified a permanent injunction, the matter had to be remanded to see if the “limited success” factor made a difference in the amount of the fee award;
• The fee award had to be reduced by $12,210 for work attributable to another settling defendant (with Starbucks doing a good job of identifying the work precisely, so that the appellate court itself could order this reduction);
• No apportionment was required because overlapping facts and legal theories were involved against Starbucks and the other defendant sued on a joint and several basis;
• No reduction was necessary for block billing because the legal descriptions were sufficient to identify the nature of the work;
• No reduction was required for interoffice conferencing, rejecting the notion that anything over 4% of total billings is per se unreasonable; and
• Reductions on remand did need to be made for purely clerical tasks.

Civil Rights/Multiplier: Ninth Circuit Affirms $5,378,174.66 Civil Rights Fee Recovery, Inclusive Of 2.0 Positive Multiplier, For Five Prisoners Winning Compensatory And Punitive Damages Against County Of Los Angeles And Supervisory Jail Officials

Prison Litigation Reform Act Did Not Cap Unruh Act Fee Recovery.

            In Rodriguez v. County of Los Angeles, No. 13-56292 et al. (9^th Cir. May 30, 2018) (published), the Ninth Circuit reviewed and affirmed 42 U.S.C. § 1983 excessive force verdicts of $740,000 in compensatory damages and $210,000 in punitive damages (the latter against supervisory individual defendants) in favor of five prisoners severely injured during the course of a cell extraction at the L.A. County Men’s Central Jail (which included the use of taser shocks).

            The district judge later awarded plaintiffs $5,378,174.66 in attorney’s fees under the federal civil rights statute and California’s Bane Act (Cal. Civ. Code § 52.1), utilizing separate calculations to arrive at the aggregate fee award. This award included a positive 2.0 multiplier in arriving at the award.

            The Ninth Circuit sustained the fee award in full. The fee limits in the Prison Litigation Reform Act did not apply to cap fees incurred under California Civil Code section 52.1. With respect to the multiplier, it was justified based on the financial risks assumed by the attorneys (who invested $3.4 million in a risky case), the representation of prisoners in an excessive force action against high-ranking jail officials, and the loss of opportunity costs in a litigation which required many years of intensive efforts against aggressive defendants. The district judge also did consider the impact of the award on California taxpayers, finding that the importance of civil rights litigation of this species against large/potentially powerful defendants being such as to outweigh the need for some sort of mitigating fiscal restraint.

Civil Rights: UPS Properly Awarded $52,870.50 In FEHA Attorney’s Fees For Defending Disability Discrimination Claims Found Objectively Without Foundation When Brought

Only A Quarter Of Fee Request Awarded.

          Mariano v. United Parcel Service, Inc., Case No. D071055 (4^th Dist., Div. 1 May 21, 2018) (unpublished) was a situation where a trial judge eventually found plaintiff’s associational disability discrimination theory was deficient because plaintiff had no specific relationship with a disabled person or and no such association was causally related to plaintiff’s complaint about using a disabled access ramp. UPS moved for an award of $234,982 in fees for prevailing on plaintiff’s complaint or, alternatively, sought a proportionate award of $70,494 for prevailing on plaintiff’s FEHA claims. The trial judge awarded less than a quarter of fully requested fees to UPS, to the tune of $52,870.50.

            The 4/1 DCA, in a split decision, affirmed. The majority found no abuse of discretion in the award. The apportionment arguments raised for the first time on appeal were waived, with the trial judge actually using a two-step allocation process. In dissent, Justice Dato would have reversed the entire award because he believed plaintiff was arguing for a good faith extension of the law such that ultimately unsuccessful FEHA plaintiffs should not be penalized for such advocacy.

Civil Rights/Equity/Multiplier: Although Total Judgment Offset Denied, Fee Award Based On 2.0 Positive Multiplier Reversed On Appeal

Multiplier Is Not Automatic, So Reversed To Consider Proper Factors On Appeal.

            In Campos v. Kennedy, Case Nos. B266663/B268812 (2d Dist., Div. 2 Feb. 13, 2018) (unpublished), plaintiff won a $225,000 compensatory verdict under civil rights fee shifting provisions for sexual battery.  Later, the trial court awarded plaintiff $ 2,924,830 in statutory fees, but augmented by a 2.0 multiplier to a reduced lodestar request.

            The fee award got reversed and remanded on appeal. 

            The defense first tried to argue no fee award was in order because the compensatory award got offset by a good faith settlement offer by another defendant.  The problem with this argument was one of timing, with the defense never making moves to challenge a substantively amended judgment which would take the amount to zero.  The failure to challenge the amended judgment dispatched this argument.

            With respect to the fee award, the appellate court had serious reservations about the 2.0 multiplier awarded by the trial judge.  The main flaw was that the trial judge thought a multiplier was automatic and normally should be awarded, but this is not the law given the lower court must exercise certain factors under Ketchum v. Moses, 24 Cal.4^th 1122, 1138 (2001) [our Leading Case No. 8] to reach such a favorable multiplier result.  However, the appellate court did go on to address multiplier factors, suggesting maybe the trial judge seriously should reconsider his decision on granting a multiplier on remand.

Civil Rights: County Defeated FEHA-Based Harassment/Retaliation Claims Through Summary Judgment, But Fee Award To County Reversed On Appeal

$17,945 Fee Award Overturned Because No Bad Faith/Lack Of Reasonable Cause Even Though Case Was Found To Lack Ultimate Merit.

            In Delgado v. County of Los Angeles, Case No. B271913 (2d Dist., Div. 5 Feb. 13, 2018) (unpublished), County defensed an ex-employee’s FEHA harassment/retaliation claims through a summary judgment motion, with the trial judge later awarding County fees under Code of Civil Procedure section 1038, which allows trial courts to award public entities the attorney’s fees they incur for “unmeritorious and frivolous” lawsuits if the action was not brought in good faith and with reasonable cause.  The trial judge in this case awarded $17,945 in fees to County, 25% of its request, based on the premise that the retaliation claim was brought in bad faith.

            The appellate court affirmed the summary judgment grant, but reversed the fee award.  Although agreeing that the retaliation claim lacked ultimate merit, the record showed not all of it was untimely in nature and there was proof of record which could support the perspective that plaintiff had some evidentiary basis to bring her claim. 

Civil Rights: Bustos Decision Now Published

Opinion Affirmed Fee Denial To Losing FEHA Plaintiff Only Obtaining One Favorable Vote On Jury Special Verdict.

            In a December 22, 2017 post, we discussed Bustos v. Global P.E.T., Inc., a Fourth District, Division 2 unpublished decision affirming a denial of FEHA fees to a plaintiff who obtained a favorable vote on one jury question but ultimately lost on a causation issue.  We now report that this opinion was certified for publication on January 16, 2018. 

Civil Rights: Ibrahim No-Fly List Case Involving EAJA Fee Recovery Now Set For March 2018 En Banc Argument Before The Ninth Circuit

Whole Panel Will Now Hear EAJA Fee Recovery Dispute.

            In our September 8, 2016 post, we discussed Ibrahim v. U.S. Department of Homeland Security, 835 F.3d 1048 (9^th Cir. 2016), where the Ninth Circuit reversed and remanded the district court order settling the amounts of fees and costs under EAJA to be awarded to plaintiff Ibrahim, who prevailed in a terrorist/”no fly” list case.  We can now report that the Ninth Circuit on December 29, 2017 ordered the matter assigned for en banc argument during the week of March 19, 2018.  Plaintiff is being represented by the McManis Faulkner firm in Northern California, with the attorney team being Marwa Elzankaly, Christine Peek, Elizabeth Pipkin, and James McManis. 

Civil Rights: Non-Party Employee Of Defendant Correctly Assessed Appellate Fees Relating To His Dismissal Of An Appeal On A Contempt Ruling

However, Plaintiffs’ Answering Brief On The Merits Fee Request Was Properly Denied.

            In Ortega v. USA/Maricopa County/Sheridan, No. 16-16663 (9^th Cir. Jan. 4, 2018) (published), Plaintiffs obtained an injunction against Maricopa County in a civil rights case.  Mr. Sheridan, a now-retired employee of Maricopa County, appealed from a district court’s finding that he committed civil contempt by disobeying the injunction.  The Ninth Circuit granted plaintiffs’ motion to dismiss the appeal based on Mr. Sheridan’s lack of standing.  Based thereon, the appellate court granted fee recovery for time spent by Plaintiffs in moving to dismiss, determining that even non-parties can be liable for fees when they insert themselves into litigation by appealing determinations to clear their names.  However, with respect to fee requests geared to Plaintiffs’ preparation of the answering brief, that was denied because no one succeeded on the merits.  The matter was remanded to have the Appellate Commissioner calculate fees and non-taxable costs to Plaintiffs with respect to work on the appeal motion to dismiss efforts. 

Civil Rights, Employment, Section 998: Fee And Costs Award To Successful Defendants Had To Be Reversed And Remanded Based On Failure To Make Findings On Frivolousness For Purposes Of Labor Code Section 218.5 Claim

However, 4/2 DCA Denied Expert Witness Fees To Unsuccessful FEHA Plaintiff Rejecting CCP § 998 Offer, Parting Company With Contrary Results By 1/5 And 4/1 DCAs.

            We have to say that 2018 has started out with a bang, producing a decision by the Fourth District, Division 2 acknowledging it is parting company from the approach taken by two other DCAs on whether CCP § 998 gives a right to expert fee costs-shifting even though the underlying FEHA claim was found nonfrivolous in nature.

            Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Case No. E061677 (4^th Dist., Div. 2 Jan. 2, 2018) (partially published; fees/costs discussion published) involved a plaintiff suing under FEHA for discrimination, harassment and retaliation based on LDS church membership as well as under Labor Code section 218.5 (wage/hour violation) and the whistleblower statute.  Either through summary judgment or trial, plaintiff lost all of his claims after a jury defensed him on claims escaping pre-trial adjudication.  The defense (both the company and some affiliated individuals) moved to recoup $1,203,225.06 in fees, apportioning $200,537.60 to the wage claim (1/7^th of total fees) and the remaining $1,002,607.96 to the FEHA claims.  The trial judge denied fee recovery under FEHA based on her feeling that the claims were not frivolous (given plaintiff survived a summary judgment motion on these claims), but did not buy into the 1/7^th apportionment on the wage claim.  After some more apportionment, the lower court awarded $97,500 in fees to the defense on the Labor Code section 218.5 wage claim, although not making any finding whether it was frivolous in nature.  With respect to “routine” costs, the defense sought $84,017.68, with the trial judge striking a small amount and awarding $83,642.68—broken down as $54,545.18 in ordinary costs and $29,097.50 in expert witness fees.  The expert witness fees were based on plaintiff’s rejection of a 998 offer as to all claims (including FEHA claims), which he did not beat.  The trial judge determined that even though the FEHA claims were not frivolous, section 998 pre-trial settlement principles effectively overrode the situation based on First District authority in the Holman decision.  She did not expressly rule on entitlement to expert fees under the unsuccessful wage claim given making no determination of whether it was or was not frivolous.

            The fee and costs award got reversed and remanded on appeal, but on interesting grounds.

            Fees Award.  This award got reversed and remanded because the lower court did not determine if the wage claim—the only basis for fee entitlement after the appellate court affirmed the nonfrivolity determination on the FEHA fee entitlement basis—was frivolous or not.  Without this finding, the fee award could not stand.

            Ordinary Costs Award.  Obviously, under Williams (a California Supreme Court case we have posted on frequently and our Leading Case No. 16), the ordinary costs award of $54,545.18 was improper because the trial judge determined that the FEHA claims were not frivolous.  However, that did leave room to argue that they might be justified based on the wage/hour claim, so a remand was in order on this issue.

            Expert Witness Fees.  $29,097.50 in expert witness fees were awarded based on the trial judge’s perception that plaintiff’s rejection of the 998 offer took precedence over the FEHA frivolity “no award” scenario.  The appellate court disagreed, finding that the FEHA frivolity precept overrode 998 in a situation where fees were not otherwise unavailable under the FEHA statute.  (The 4/2 DCA was careful to note that the rejection of a 998 offer could be considered in situations where FEHA expert fees were allowable in the absence of a “no frivolity” determination.)  In doing so, it expressly departed company from contrary determinations by the 1/5 DCA (Holman) and 4/1 DCA (Sviridov).  However, it did remand for the trial judge to determine if expert fees were allowable based on the wage claim fee-shifting statute given no ruling on whether the action was frivolous under this section (possibly requiring apportionment of fees if the trial judge decided that the wage claim was frivolous).

Civil Rights: Limited Success Did Justify District Court’s 50% Reduction In Fee Request In ADA Case

District Court’s Articulation Of Reduction Was Clear Enough.

           

Getting a shave. "Uncle Joe Cannon getting one of his last congressional shaves. Bert Broden has been Uncle Joe's barber for the past twelve years."  Feb. 26, 1923.  Library of Congress. 

               In Dunlap v. Liberty Natural Products, Inc., Nos. 15-35395/16-35113 (9^th Cir. Dec. 28, 2017) (published), plaintiff filed and won a claim before a jury for disability discrimination under the ADA and related Oregon statutes, although she lost other claims.  Her total damages came to $83,200.  She then moved for $235,038 in attorney’s fees under the ADA/state counterpart statutes.  The district granted the motion in part, reducing the requested fees by 50% based on lack of success.

            The Ninth Circuit affirmed.  After affirming the merits judgment, it concluded that degree of success (winning on one of five claims) by a prevailing party is a proper reduction factor with respect to a fee request.  The district court indicated it was discounting based on that factor, a sufficiently clear explanation of the fee award. 

Civil Rights/Costs: Trial Judge Properly Granted Losing Plaintiff’s Motion To Tax Costs With Respect To Prevailing Defendant In Case Involving FEHA/Non-FEHA Claims

$68,382.38 In Costs Not Allowed To Defense Is The Upshot.

            In Smith v. Sharp Healthcare, Case No. D069206 (4^th Dist., Div. 1 Dec. 22, 2017) (unpublished), plaintiff lost a case with both FEHA and non-FEHA claims, with the defense filing a costs memorandum seeking $68,382.38 after plaintiff rejected a CCP § 998 offer of $25,000.  The trial judge granted plaintiff’s motion to tax costs in entirety, prompting an appeal by the defense.

            Nothing changed on appeal.

            Based on one jury response, the trial judge properly found that plaintiff’s case was not frivolous so as to justify a refusal to grant costs in accordance with the reasoning in Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97 (2015) and Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1057-1058 (2015).  The defense argued that it should be granted costs on the separate Health & Safety Code section 1278.5 retaliation claim, but both courts found that it was intertwined with the FEHA claims such that costs were not justified under Roman.  Finally, the section 998 offer was governed under the frivolousness standard, Mangano v. Verity, Inc., 167 Cal.App.4^th 944, 951 (2008), such that no change in result was in order. 

Civil Rights: Plaintiff Obtaining One Special Verdict Favorable Response But Losing Based On Other Responses Was Not Entitled To FEHA Fee Recovery

Plaintiff Did Not Prevail On His Monetary Claims, And No Injunction/Declaratory Relief Found Against Defendants. 

            After obtaining a jury’s favorable answer to whether plaintiff’s physical condition was a substantial motivating reason for his termination, the jurors found against plaintiff on whether the conduct was a substantial factor in causing harm to plaintiff.  Plaintiff then moved to recover $454,857.90 in attorney’s fees under the FEHA fee-shifting statute from the defense, a request denied by the trial judge.

            That conclusion was sustained on appeal in Bustos v. Global P.E.T., Inc., Case No. E065869 (4^th Dist., Div. 2 Dec. 22, 2017) (unpublished).  The problem is that a FEHA award is discretionary, and plaintiff never prevailed--although the defense did.  No injunction or declaratory relief was entered against the defense, such that the one favorable verdict answer did not justify a fee award in these circumstances. 

Civil Rights: Prevailing Defense On Unruh Act/Disabled Persons Act Claims Seeking Injunction In Complaint Prayer Properly Granted $29,600 In Attorney’s Fees

Appellant Failed To Raise The Winning Argument For Reversal.

            Horsley v. Tourmaline Real Estate Partners, LLC, Case No. B277926 (2d Dist., Div. 3 Dec. 19, 2017) (unpublished) is a lesson in being careful what you plead in your complaint prayer for relief, because it might trigger a bilateral fee-shifting statute. 

            Plaintiff pled for Unruh Act/Disabled Persons Act violations under Civil Code sections 51, 54, and 54.1, with section 51(f) incorporating federal ADA protections.  Most of these sections only award fee recovery to a prevailing plaintiff, but section 55 is a bilateral fee-shifting provision allowing recovery to either side if injunctive relief is sought under sections 54 or 54.1.  Plaintiff lost his case after a bench trial, with the trial judge awarding the defense $29,600 in attorney’s fees under section 55.

            The fee award was affirmed on appeal.  Although not mentioning injunctive relief in the substantive claims, plaintiff did plead for permanent injunctive relief in the prayer of his Complaint, which was enough to invoke the bilateral “bite” of section 55 against the non-prevailing plaintiff.   However, the appellate court also noted that plaintiff may have failed to raise the right argument:  on appeal, but not in the trial court (hence, a waiver), plaintiff argued that he wanted injunctive relief under section 52 for a section 51 violation (which carries no bilateral “bite”); and, had he done so, this would have been persuasive because defendant may not obtain a fee award under section 55 for hours inextricably intertwined with hours spent defending the section 51 claim.  Ouch!

Civil Rights/Employment: FEHA Individual Supervising Employee Defendant Still Must Meet Frivolousness Standard For Purposes Of Obtaining FEHA Fee Shifting Award

Employer Standard Also Applies To Supervising Employee Defendant.

            In Lopez v. Routt, Case No. B269345 (2d Dist., Div. 3 Nov. 29, 2017) (published), the Second District, Division 3 DCA decided that a supervising employee FEHA defendant had to meet the same frivolousness standard as applicable to employer defendant with respect to recovering fees from an unsuccessful plaintiff.  The trial court denied individual defendant’s request for $ 374,760.75 in fees, a determination affirmed on appeal based on the appellate court’s ultimate conclusion.

Civil Rights/Multiplier: 2.0 Multiplier Fee Award In FEHA Case Was No Abuse Of Discretion

Compensatory Award Was $1 Million, With $1,945,295 FEHA Award Affirmed On Appeal.

            In Lopez v. City of Beverly Hills, Case No. B268451 (2d Dist., Div. 3 Nov. 30, 2017 unpublished; received for posting Dec. 1, 2017 unpublished), a FEHA plaintiff—after two years of litigation and a 10-day jury trial involving 24 witnesses--won to the tune of $1 million in compensatory damages.  She then sought $2,533,167 in fees (a lodestar plus a 2.0 positive multiplier), with the defense arguing plaintiff should only recover $316,645.88 based on her recovery on certain claims.   The trial judge reduced the lodestar somewhat after finding the unsuccessful claims were intertwined with the successful claims, but did grant the 2.0 multiplier to result in a fee award of $1,945,295.

            The fee award was affirmed on appeal.  The appellate court sustained the trial court’s conclusion that (1) plaintiff’s lead counsel did a good job in trying the case, (2) plaintiff’s counsel advanced $100,000 in hard costs on the case; and (3) the length of the entire matter (even before complaint filing) and contingency risk justified the multiplier enhancement. 

Civil Rights: $575,231 Bane Act Compensatory Jury Verdict Resulted In Sustained Fees/Costs Award Of $2,027,612.75 By Trial Court

Statutory Fee-Shifting Provisions Can Have Real Force In A Case For A Prevailing Party, Even If The Compensatory Damages Award Is Much Less Than Requested Fees.

           Federal Theatre.  1936.  Library of Congress

        The Bane Act, Civil Code section 52.1, is a broadly-worded California civil rights statute first enacted to combat hate crimes, but construed to protect against all conduct aimed at infterfering with rights secured by the constitutional or statutory law of the U.S. or California where the inference is carried out by threats, intimidation or coercion, whether or not the offending conduct is motivated by discriminatory animus.  It is frequently used in the police misconduct area.  The important thing, at least for this post, is that allows the trial court to award the plaintiff reasonable attorney’s fees.  (Civ. Code, § 52.1(h).)   These awarded fees can be quite hefty, even in comparison to the compensatory damages garnered by a prevailing plaintiff.  Cornell v. City and County of San Francisco, Case Nos. A141016/A142147 (1^st Dist., Div. 4 Nov. 16, 2017) (published) illustrates this well, although the facts of the case were not ones most defendants would want to defend.

            Basically, plaintiff was a police officer trainee, who while off-duty and in street clothes, went for a run one morning in Golden Gate Park, stopping for a brief rest on a knoll called “Hippie Hill.”  From there, two uniformed police officers thought plaintiff was suspicious, resulting in an altercation which result resulted in a criminal arrest/citation (he was taken into custody for six hours and then let go), no subsequent prosecution, and a lost job as a result of the arrest/citation.  Plaintiff sued for various torts and under the Banes Act, obtaining a jury verdict award of $575,231 in damages.  The trial judge then awarded $2,027,612.75 in fees/costs on the Banes Act claim.

            Everything was affirmed on appeal, the merits judgment and the fees/costs award.  The main merits issue was resolved by a holding that a Banes Act violation is tested by whether the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not whether the evidence shows some “coercion” beyond the wrongful detention itself.  Once this mens rea element was resolved in a civil context, the fees/costs award was easily affirmed given that no argument was raised to overturn it except based on the merits of the jury verdict in favor of plaintiff (which was sustained on appeal).  

Civil Rights, Lodestar, Multiplier, Reasonableness Of Fees: Trial Judge Properly Cut Lodestar By 25%, And Applied A 1.5 Positive Multiplier, For Total Fee Award Of $752,925.92 In Case Garnering Compensatory Damages Of $625,000 To Plaintiff

Trial Judge Also Properly Awarded $15,000 Supplemental Fees For Posttrial Work.

            For those of you not practicing in the employment/FEHA area, civil rights plaintiffs in disability/harassment/failure to accommodate cases are entitled to recovery of attorney’s fees under a pro-plaintiff statutory fee-shifting provision to be construed liberally to allow plaintiff full compensation for prevailing in these types of cases.  The fee (which must be reasonable and not inflated or subject to other infirmities) is calculated by using the lodestar, namely the number of hours multiplies by a reasonable hourly rate for practitioners in the community where the case was venued, augmented or decreased by certain enhancement factors (with the lodestar sometimes adjusted upward for the plaintiff’s attorney carrying the risk of the case on a contingency basis).  These principles were well summarized and at play in Estelle v. Los Angeles County MTA, Case No. B268085 (2d Dist., Div. 7 Nov. 17, 2017) (unpublished), authored by a 3-0 panel by Justice Segal.

            In Estelle, Plaintiff, an MTA business driver obtained a jury verdict of $625,000 in a disability/failure to engage in interactive process case.  Under the FEHA fee-shifting statute, plaintiff then requested total fees of $1,171,128, which was inclusive of a 1.75 positive multiplier enhancement.  The lower court reduced the base lodestar by 25% for plaintiff’s unsuccessful work on some claims, but did positively adjust the reduced lodestar through an award of a positive 1.5 multiplier—resulting in a total fee award of $752,925.92.  Later, plaintiff requested supplemental fees of $75,640.50 (lodestar plus a positive 1.5 multiplier request) for posttrial work, but the trial judge found this excessive and awarded $15,000 instead.  All this prompted an appeal by the defense.

            Nothing changed on appeal.  The 1.5 multiplier was no abuse of discretion especially given that the case was taken on a contingency basis and the lawyering was found to be acceptable.  Supplemental fees for posttrial and appellate work are allowed under interpretative case law, with the trial judge exercising judgment in reducing for what he deemed to be excessive work when fashioning his $15,000 award.

Civil Rights: FEHA/Whistleblower Losing Plaintiff Properly Exposed To $94,017.50 In Attorney’s Fees

Lack of Proof/Causation, And Some Crazy Assertions, Cemented Appellate Court’s Agreement With Trial Court’s Ruling.

 

Secretary of Agriculture Henry Wallace practices his favorite hobby, boomerang throwing.  July 13, 1939.  Library of Congress.

            Baker v. Charles R. Drew University of Medicine and Science, Case No. B270973 (2d Dist., Div. 2 Oct. 25, 2017) (unpublished) shows how FEHA/whistleblower plaintiffs can be exposed to attorney’s fees where their case is unreasonable, frivolous or meritless in nature. 

            The trial court in this one granted summary judgment on plaintiff’s multi-count FEHA- and whistleblower-driven lawsuit.  The defense then moved for an award of attorney’s fees against plaintiff based on the theory that the action was unreasonable, frivolous, meritless or vexatious in nature.  (Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97, 103 (2015), applying the standard set forth in Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 422 (1978).)  The trial judge agreed that this was the case, awarding the defense $94,017.50 in fees.

            Plaintiff’s appeal was unsuccessful.  The problem here was the record of what happened below.  Plaintiff alleged that he was born in China and was of Asian descent, although he was truly African-American—not a great credibility starter.  Beyond that, plaintiff did no discovery and submitted largely inadmissible declarations to show FEHA discrimination or whistleblower retaliation.  Even though the whistleblower claim might have deflected fees, plaintiff’s own testimony showed he had no evidentiary basis for such a claim such that the result below was sound.       

 BONUS:  Dr. Charles R. Drew (1904 - 1950) was prominent in the field of blood transfusions, and protested the practically of racial segregation in the donation of blood.

Civil Rights: Plaintiff Losing Statute Of Limitations Argument On FEHA Claim Properly Not Assessed With Adverse Fee Award

Plaintiff Did Not Attempt To Replead Certain Claims In Amended Complaint And Defense Failure On CCP § 128.5 Sanctions Motion May Have Salted Away The Result.

            “Pocketbook”, a concern in many civil rights fee-shifting cases, may be helped by subsequent efforts of a civil rights plaintiff and unsuccessful sanctions efforts by the defense.  Figueroa-Manjung v. Behroozan, Case No. B267942 (2d Dist., Div. 4 Sept. 1, 2017) (unpublished) illustrates how the interaction of these factors may influence a result both before trial and appellate courts. 

            In this one (albeit reversing a demurrer to a public policy state claim), the defense cross-appealed from a trial court’s refusal to grant attorney’s fees to defendant as the prevailing party after a demurrer based on the theory that a FEHA claim was frivolous/pursued in bad faith.  The defense sought $65,000 in fees, a request rebuffed at the lower court and intermediate appellate levels.

        The appellate court did not believe that time-barring of the FEHA claims required a merits-based determination deserving of fee recovery to the defense, relying on a refusal to award fees in and a failure to exhaust administrative remedies case.  (Hon v. Marshall, 53 Cal.App.4^th 470, 473 (1997).)  Beyond that, there were other factors which likely influenced the appellate court in affirming the denial of fees to the defense:  (1) plaintiff dropped FEHA and another statutory claim from a second amended complaint (after the demurrer on the statute of limitations issue, basically acknowledging defeat); and (2) the defense previously lost a CCP § 128.5 sanctions motion against plaintiff. 

Civil Rights/Settlement: Plaintiff Accepting $1,000 In Rule 68 Offer Entitled To Some Amount Of Fees Under Contract Principles

District Judge Erred In Denying Any Fees Based On Incorrect Civil Rights Fee-Shifting Analysis.

            In Miller v. City of Portland, No. 14-35783 (9^th Cir. Aug. 22, 2017) (published), a civil rights plaintiff accepted a defense Rule 68 offer for $1,000 with reasonable attorney’s fees to be determined by the district court.  After plaintiff moved for fees, the district judge denied any at all based on the ground that the $1,000 award was a de minimis judgment under 42 U.S.C. § 1988, a provision with case law indicating that a nominal judgment does allow for a denial of fees by a district court.  The Ninth Circuit reversed, determining that the analysis below misfired by relying on civil rights principles rather than contractual principles in interpreting the Rule 68 offer.  By acceptance of the Rule 68 offer, plaintiff was entitled to some amount of fees, given that the offer did not reference section 1988.  Remanded to the district judge to fix some amount of fees to be awarded to plaintiff. 

Civil Rights/Costs/Section 998: Sviridov Decision Out Of 4/1 DCA Now Published

Decision Held Section 998 Cost-Shifting Prevailed Over FEHA/POBRA Limitations.

        On July 28, 2017, we posted on Sviridov v. City of San Diego, Case No. D069785 (4th Dist., Div. 1 July 28, 2017 unpublished). We now can report that this opinion was certified for publication on August 15, 2017. It decided that CCP § 998 cost shifting policies allowed for an assessment of costs against a losing plaintiff despite the existence of FEHA and POBRA cost limitations.

Civil Rights/Costs/Section 998: Plaintiff Failing To Beat 998 Offer In FEHA/POBRA Case Was Liable For $90,387.28 In Costs

Policies Of Both FEHA Cost Shifting And 998 Cost Shifting To Be Considered By Trial Courts, But 998 Resolution Policies Prevailed In This One.

            Sviridov v. City of San Diego, Case No. D069785 (4^th Dist., Div. 1 July 28, 2017) (unpublished) is an interesting case where a terminated police officer failed to beat several Code of Civil Procedure section 998 offers in a matter involving FEHA and Public Safety Officers Procedural Bill of Rights Act (POBRA) claims.  The trial judge awarded defendants City of San Diego and San Diego Police Department $90,387.28 in costs based on the rejected 998 offers.

            Plaintiff appealed, arguing “you can’t do that” because costs are not awardable under FEHA unless the action is deemed frivolous and in bad faith (citing Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97, 99 (2015)) and under POBRA unless the action is frivolous (citing Government Code section 3309.5(d)(2)).  The appellate court upheld the trial judge’s costs award.  It found that the policies of both FEHA and section 998 were worthy of consideration, but that the 998 resolution-oriented policies prevailed in this situation.  With respect to the POBRA statutory section, there was ending language indicating that it was not an express exception to other provisions such as routine costs statutes or section 998, with 998 winning out in this particular case. 

Civil Rights: Plaintiff In Unruh Act Case Not Allowed Fee Recovery For Fees Expended In Prior Federal Action Dismissed As Moot Based On Parking Lot Fixes

Plaintiff Sought $36,022, But Was Only Awarded $4,380 In Costs And Fees.

            Even in the civil rights areas, looks like a lot of cases come down to attorney’s fee rulings.  Turner v. Anand, Case No. D070433 (4^th Dist., Div. 1 July 13, 2017) (unpublished) illustrates this well.

            There, plaintiff sued defendant in state court under the Unruh Act based on alleged handicap parking accessibility issues involving a medical office building in El Centro.  Earlier, plaintiff had brought an ADA federal court action which was dismissed as moot based on defendant fixing the parking lot, with plaintiff failing to file an amended complaint or seeking fees before the federal court.  Later, in the state court action, the parties settled after the defense agreed to pay plaintiff $2,000 and reserve a fee determination for the trial judge.  Plaintiff moved to recover fees under the Unruh Act (Civ. Code, § 52(a)) fee-shifting provision to the tune of $36,022 (primarily fees spent in the prior federal action).  The trial judge refused to compensate for the federal court activities, awarding instead costs and fees of $4,380.

            The 4/1 DCA affirmed the fee award over plaintiff’s protests on appeal.  Three reasons were given:  (1) the federal action was separate, with plaintiff citing no authority that Civil Code section 52(a) allows recovery for work in this separate action; (2) the federal court was dismissed as moot, such that plaintiff should have applied for fees there but likely would have lost because plaintiff did not prevail in light of defendant’s voluntary parking lot fix; and (3) the federal court dismissal did not provide an independent Unruh Act substantive basis for relief in the state court. 

Civil Rights: Walent v. Commission On Professional Competence Of the LAUSD Now Published

 

Decision Considers Fee Shifting Under Education Code Section 44944(f)(2).

 

    As discussed in our February 23, 2017 post, fee shifting under Education Code section 44944(f)(2) was considered in Walent v. Commission on Professional Competenece of the LAUSD. Although not published at the time of its filing on February 21, we can now report that the opinion was certified for publication on March 13, 2017.

Civil Rights, Costs, Prevailing Party, Undertaking: Plaintiff’s Win Under Patient’s Rights Health And Safety Code Scheme Resulted In Substantial Fee Award, But Other Expert Fee Awards And Need For Appellate Undertaking Rulings Reversed As To Defense

 

Panoply Of Issues Faced In This Decision.

 

    In Lemaire v. Covenant Care California, LLC, Case No. B266493 (2d Dist., Div. 6 Feb. 27, 2017) (unpublished), plaintiff filed a complaint based on wrongful death, elder abuse, and "patients' rights" violations under Health and Safety Code section 1430(b) for treatment of her mother in a skilled nursing facility run by defendant. The jury found against plaintiff on certain claims, but found for her on the patient's rights claims, determining the defendant committed 540 violations under different categories of the H&S Code scheme. In a prior appeal, the appellate court reversed a statutory damages award. The trial judge eventually decided plaintiff, as the prevailing party under Health and Safety Code section 1430(b), was entitled to attorney's fees of $589,290, a 30% reduction, at the trial level; $112,500 in attorney's fees expended in the prior appellate proceeding; and $85,581.08 in trial costs for prevailing at the trial level. The trial court also ruled that defendant had to post a bond to stay enforcement of the fee and costs award.

 

    Defendant appealed, winning a little relief but not most.

 

    Because plaintiff did vindicate rights applicable to all patients at defendant's nursing home, fees were properly awarded under the H&S Code fee entitlement statute. The amount awarded in fees was reasonable, given the large number of H&S Code violations and the trial judge's 30% reduction in the trial fees requested. Fees on appeal were properly awarded to plaintiff given than the case involved important issues of first impression.

 

    However, with respect to the costs award, a reversal was warranted. Expert fees are not specifically mentioned as costs under H&S Code section 1430(b) such that they are not expressly authorized. That brought the 2/6 DCA to deciding whether the defendant had to post an undertaking for a fees and costs award. Answer: "no," given that this was not an exceptional SLAPP fee/costs award (where an undertaking is required) such that generally no undertaking was required in this non-SLAPP case. (Ziello v. Superior Court, 75 Cal.App.4^th 651, 655 (1999).)

Civil Rights: Special Education Code Fee-Shifting Statute Allows Reasonable Fee Award, Not Necessarily Limited To Attorney-Client Contingency Fee Arrangement

Education Code Section 44944(f)(2) Was At Issue.

            In Walent v. Commission on Prof. Competence of the LAUSD, Case No. B266265 (2d Dist., Div. 7 Feb. 21, 2017) (unpublished), petitioner successfully challenged her dismissal from employment from the L.A. Unified School District.  Education Code section 44944(f)(2) allowed her to seek “reasonable attorney’s fees incurred by the employee” from the LAUSD based on her win.  The trial court awarded petitioner $199,817 in attorney’s fees based on a lodestar analysis, even though she would have recovered less if the contingency fee arrangement with her attorney prevailed.

            LAUSD argued that the contingency fee agreement did create a cap on appeal, but that argument was rejected.  Case law interpreting this statute holds that the employee does not have to actually pay or become obligated to pay the fees at issue; the statute could have qualified that the fees had to be “actually incurred,” but this language was not present.  The use of the lodestar was proper, resulting in affirmance of the fee award.

Civil Rights: $626,821.22 Fee Recovery Against Non-Prevailing FEHA Plaintiffs Reversed As A Matter

 

Pocketbook, Pocketbook, Plus Lack Of Frivolity Were The Reversing Factors.

     If you do not think that judges and appellate justices are not attuned to financial disparity, Alvarez v. Bank of America, Case Nos. B238087/B242275 (2d Dist., Div. 4 Jan. 19, 2017) (unpublished) might change your mind or at least provide mollifying food for thought.

     11 plaintiffs brought various FEHA discrimination cases and lost them in a summary judgment proceeding, based primarily on a BofA independent investigation showing a true objective basis to discharge plaintiffs based upon fraudulent conduct. However, the racially-neutral basis for discharge was not revealed until some time after the onset of the litigation. Later, BofA moved to recoup about $760,000 in attorney’s fees under the theory the FEHA suit was frivolous in nature. The trial court ultimately agreed, awarding BofA $626,821.22 in fees.

     The summary judgment merit ruling was affirmed, but the fee award was reversed as a matter of law.

     First of all, the appellate court believed the trial judge likely ignored plaintiffs’ declarations that they could not pay for the requested fees, which is a relevant concern under FEHA. However, rather than remand, the 2/4 DCA decided that the fee awards could be reversed as a matter of law: BofA claimed the actions were frivolous at the outset, but the record showed that it was only during ongoing discovery stage that plaintiffs learned about the internal investigations showing fraudulent conduct which would show the actions were frivolous during the lawsuit “prosecution” stage. Given that the action was not frivolous at the outset, fee awards reversed.

Civil Rights/Lodestar: Trial Court Award Of Fees Under Section 1983 Reversed And Remanded For Impermissible Double Deduction From Lodestar And Failure To Consider Limited Success In Calculating Fees On Fees

 

Also, Costs Improperly Excluded From Fee Calculus As Permitted Under § 1983.

    The Third District in Clapp v. Terry, Case No. C076562 (3d Dist. Nov. 23, 2016) (unpublished) is an important primer on the proper methodology to be used when awarding lodestar fees, fees on fees, and costs in civil right cases to prevailing plaintiffs under 42 U.S.C. § 1983.

    There, plaintiff won $12,533.43 compensatory and $500 punitive damages in total against two defendants in an excessive force case, although losing related claims and obtaining no verdict against the County, its sheriff, or a deputy.  Plaintiff then made two applications for fees and costs pursuant to 42 U.S.C. § 1983. 

    On the first one where $440,473 in fees was sought, the trial judge made some lodestar reductions for efficiency and deduction of hours spent against defendants for which no recovery was had, and then made a .4 further reduction for limited success in the case, bringing the fee award down to $167,116.32.  The lower court also failed to award some costs which were included in the fee request.  Plaintiff appealed those determinations.

    The second application, for “fees on fees,” sought $72,506.50 in fees and $2,126.70 in costs.  The lower court awarded them all, determining that the limited success consideration only went to the merits and should not be factored into the “fees on fees” calculation.  This prompted an appeal by the two losing defendants.

    The Third District sorted through the lower court’s methodology, reversing and remanding the various determinations.  The main infirmity with the fee award on the first application was the lower court’s utilization of an impermissible “double deduction” by initially reducing for unsuccessful hours and then again doing a further .4 reduction for the same limited success factor.  The trial judge also failed to award costs/expenses included in the fee requests, which are compensable as fees under § 1983 (with California’s normal routine costs analysis being irrelevant).  The flaw in the “fees on fees” calculation was the lower court’s failure to consider degree of success in awarding the fees sought under the second application.  Remanded for a “re-do.”