She Lost Elder Abuse Claim by Plaintiff and Did Not Prevail on Her Frivolous FEHA Sexual Harassment Cross-claim.
Bad facts can result in large jury verdicts; they also tend to guide the dispositon of the trial judge when it comes to awarding attorney’s fees against the non-prevailing litigant. That is what happened in Flowers v. Hillyer, Case Nos. A120478/A121941 (1st Dist., Div. 5 Sept. 23, 2011) (unpublished).
Here is a summary of the bad facts: Plaintiffs, including an elderly man with an ownership interest in another of one of the plaintiff companies, sued defendant, a former CFO, for making 72 unauthorized transactions and embezzling millions of dollars from Ramsell Corporation as well as elderly man’s personal accounts. Defendant cross-claimed for defamation and sexual harassment/retaliation under FEHA, based primarily on the claim that the elderly plaintiff harassed her even though the evidence showed that he only accompanied her to hotels for some physical intimacy during a vulnerable time of his life but not have sexual intercourse. The jury awarded plaintiffs over $11.7 million on the embezzlement-related claims (including elderly abuse claims for taking money from the elderly man’s personal bank accounts) and returned a defense verdict on defendant’s sexual harassment cross-claim (after dismissal of the defamation cross-claim). Later, the trial court awarded the elderly plaintiff $770,576 in fees on his elder abuse claims and awarded elderly plaintiff/Ramsell $542,056 in fees for successfully defending against defendant’s frivolous sexual harassment cross-claim.
Defendant appealed. Although the appellate court reversed the $4.8 million punitive damages component of the jury award, the remainder of the merits judgment and fee awards were affirmed.
One firm representing plaintiffs/cross-defendants sought a total of $1,983,721 in fees (from filing of complaint until some time before trial) and another firm sought $886,619.19 in fees for work on the sexual harassment claim (with the court denying plaintiffs’ request for fees generated by the second firm on the elder abuse claims because that firm did not represent elderly plaintiff until after trial).
The lower court determined that 45.7% of first firm’s fees were attributable to the elder abuse claims, and reduced this amount by 15% due to “block billing” and redacted time entries. That came to the $770,576 in total fees awarded. Defendant argued that the lower court should have reduced fees by 20% or more, but the appellate court determined that the 15% reduction ($130,000) was well within the lower court’s discretion. (See, e.g., Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103; Welch v. Metropolitan Life Ins. Co. (9th Cir. 2007) 480 F.3d 942, 948 [discretion to disregard or reduce appropriately in “block billing” cases].)