Second District, Division 4 Found No Error In Severely Reducing Lodestar And Not Applying a Multiplier.
After plaintiff settled with several defendants for $100,000 on FEHA claims, the trial court then had to determine the fee recovery to plaintiff’s counsel. Three attorneys requested a total of $564,344.38 in fees (based on a 1.5 multiplier) and $8,175.80 in costs. The trial court found lots of duplication and no justification for an enhancement, awarding $55,000 in fees and $4,740.85 in costs.
Plaintiff challenged the fee award in Miller v. Hawaiian Gardens Casino, Case No. B214224 (2d Dist., Div. 4 Mar. 30, 2010) (unpublished). The fee award was sustained.
The appellate panel relied heavily on Chavez v. City of Los Angeles, 47 Cal.4th 970, 990 (2010), where our state supreme court imbued the trial court with great leeway to reduce or deny altogether an unreasonably inflated FEHA fee request, in affirming the trial court’s award.
Plaintiff initially argued that state fee awards needed to be explained with particularity, citing to federal case law for this proposition. The Court of Appeal noted that “California courts have explicitly departed from federal law in this regard.” (Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 67 (2009).)
The intermediate court also addressed an issue that has sometimes perplexed these co-contributors: even though no statement of decision is required on fee decisions, do you still need to ask the lower court to explain its fee calculations although an explanation is not necessarily required? We got an answer—yes, you do. Here is the Court’s analysis: “While appellant correctly contends that he had no ‘right’ to a statement of decision on an attorney fees motion, it does not follow that he can complain on appeal about the court’s lack of specificity regarding the fee award calculation when he never asked for such an explanation below.” (Slip Opn., pp. 12-12.) [BLOG OBSERVATION—A little of a Catch-22? Perhaps, but this does counsel that the record still needs to be made until the jurisprudence sorts out these somewhat conflicting principles.]
In large part, the appellate court agreed with the lower court that a lot of the lodestar work was duplicative and unnecessary. After all, three attorneys worked on the case, unnecessary hours were devoted in adversarial skirmishing between attorneys, and some time was devoted improperly to media relations. (California Common Cause v. Duffy, 200 Cal.App.3d 730, 754 (1987).) Given that the case was non-complex and involved a single plaintiff, the lodestar reductions did not constitute an abuse of discretion.
No error was committed in failing to enhance the fee award because the lodestar figure already encompassed the contingency factor.
Costs were properly reduced because investigation expenses, FedEx charges, postage charges, fax charges, phone charges, and copying charges were not recoverable expenses under Code of Civil Procedure section 1033.5.