CALIFORNIA ATTORNEY'S FEES

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

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

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 (2d Dist., Div. 2 Sept. 25, 2023) (unpublished), defendant won a summary judgment against plaintiff’s FEHA and non-FEHA claims, although they did overlap.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Compensatory Award Was $1,014,000.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).