Third District Also Addresses Clerical Time and Multiplier Issues.
Plaintiff won a jury verdict of $16,536 on a failure to accommodate discrimination claim. Under the fee-shifting provisions of the Fair Employment and Housing Act (FEHA; Government Code section 12965(b)), the trial court awarded plaintiff $189,503.40 in fees, after lodestar deductions for clerical tasks, duplicative entries, and excessive travel time and then enhanced by a 1.5 multiplier (out of a requested $171,981 lodestar and requested 2.0 multiplier). Defendant Club Fresh was unhappy, appealing the fee award.
The Third District affirmed in Maldonado v. Club Fresh, Case No. C055954 (3d Dist. Oct. 9, 2009) (unpublished).
Club Fresh argued that plaintiff’s declaration about reasonableness of hourly rates was incompetent to prove reasonableness of the fees. Actually, this was wrong—a declaration of plaintiff’s counsel is sufficient evidence of the market rates charged in the legal community, especially where no evidence is presented to the contrary. (Davis v. City of San Diego, 106 Cal.App.4th 893, 902-904 (2003); Graciano v. Robinson Ford Sales, Inc., 144 Cal.App.4th 140, 154 (2006); MBNA America Bank, N.A. v. Gorman, 147 Cal.App.4th Supp. 1, 13 (2006); but see Nichols v. City of Taft, 155 Cal.App.4th 1233, 1237-1238 (2003) [different result where defense presented opposition declarations on local community legal rates].) Here, Club Fresh presented no contrary proof. Also, the appellate panel did note that there was corroboration from a CPA expert, who used information from Altman & Weil, Inc., The Small Law Firm Economic Survey (2006) and International Paralegal Management Association and Altman Weil, Inc., Annual Compensation Survey for Paralegals/Legal Assistants and Managers (2006).
Defendant next attacked the allowance for clerical services. The appellate court found that discounts had been made for attorney clerical work, but that clerical services essential to legal representation and ordinarily billed in the legal marketplace may be included in a fee award. (Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914, 951 (1985).)
Club Fresh attacked the 1.5 multiplier granted by the trial court in the fee award. Although attacking the lower court’s failure to articulate a reason for the multiplier, the appellate panel observed that the trial court is not required to issue a statement of decision with regard to a fee award. The multiplier was justified based on the contingency risk to the case, the complexity of the issues, and the need to encourage private attorneys to litigate these types of cases.
Club Fresh was shocked at the size of the award as compared to the modest jury verdict. However, the Court of Appeal countered that California does not impose a rule of proportionality on fee awards and has rejected federal rules that limit fee enhancements generally and exclude consideration of the contingent nature of the payment. (Ketchum v. Moses, 24 Cal.4th 1122, 1140-1141 (2001) [one of our Leading Cases].)
However, the appellate court denied plaintiff’s requests for an award of fees on appeal, finding it did not go the merits of her underlying claims but only the fee award itself.