Plaintiff Appeals $500,000-Plus Fee Award, But Gets Nothing Better.
Mnaskanian v. 21st Century Insurance, Case No. B211757 (2d Dist., Div. 1 Feb. 11, 2010) (unpublished) shows that both trial and appellate courts will apply lodestar
analysis in FEHA fee award situations, discounting for limited success and unreliable attorney fee substantiation when awarding “bottom line” fees to a prevailing plaintiff.
There, plaintiff prevailed on one FEHA claims before a jury, being awarded a total judgment award of $845,638.27 ($729,520 plus interest). Although seeking to recover $1,054,500 in fees and $78,79.60 in costs, the trial court awarded plaintiff’s attorney $766,395 in fees and $60,351.89 in eventual costs. Defendant appealed, and that is where the Court of Appeal in a prior decision stepped in—reversing certain component of the damages award and finding that the fee award was excessive in light of the partial reversal and “patent absurdity” of submitted billing records. (The principal damages award of $729,520 was reduced to $179,520 from this first appeal.) Plaintiff’s rehearing and supremecourt review petitions were both denied.
On remand, plaintiff sought $766,395 (the prior request found unreasonable) plus $373,132.50 for fees on the first appeal (requested fees at a $550 hourly rate enhanced by a 1.5 multiplier). The trial court awarded $420,000 in fees through trial, finding that plaintiff’s bills had numerous inconsistencies and crediting certain amounts derived from defense bills to be a more reasonable “proxy” as far as fee reasonableness. With respect to appellate fees, the trial court awarded $82,918.33 in fees (rather than the requested $373,132.50) based on plaintiff’s limited success to “roughly one-third of the appeal.” Plaintiff appealed.
Plaintiff did not gain any more fees on appeal.
The lower court correctly employed the lodestar method, discounting requested fees for limited success and plaintiff’s unreliable billing records. Using defense records as a “reasonable proxy” in the lodestar analysis was no abuse of discretion given the unusable nature of plaintiff’s attorney’s billings. No multiplier was justified in this situation, because the litigation involved a commonplace discrimination case with no broader public interest implications (other than plaintiff’s interest in getting her own monetary judgment). The fact that the litigation was “hard fought” did not alter the result, because this is always considered in the lodestar analysis in the first instance. In discounting appellate fees, the lower court properly considered plaintiff’s limited success and failure to obtain California Supreme Court review.
Defendant sought sanctions for a frivolous appeal. However, its failure to seek them in a separate motion—rather than just a request in respondent’s brief—doomed the request from a procedural standpoint. (Cal. Rules of Court, rule 8.276(a)(1), (b)(1); Leko v. Cornerstone Bldg. Inspection Service, 86 Cal.App.4th 1109, 1124 (2001).)