CALIFORNIA ATTORNEY'S FEES

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

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

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

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

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

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

September 9, 2019 Unpublished Decision Now Partially Published.

            On September 9, 2019, we posted on then unpublished decision in Hawkins v. City of Los Angeles, which dealt with the Bane Act/Whistleblower Retaliation victories, and $1,054,286.88 attorney’s fees award,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  We can now report that the unpublished decision was certified for partial publication – as to the discussions on sufficiency of evidence of retaliation, and the award of attorney’s fees under CCP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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel Agrees With Reasoning In Arave Opinion So Holding.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.