Second District, Division 5 Finds No Abuse of Discretion, But Provides Tantalizing Dicta on Statement of Decision Requirements in Unpublished Decision; It Also Reminds Everyone to Provide a Reporter’s Transcript on Appeal.
The next case may seem mundane, but does give some insights into the thought process of judges when confronting fee awards where very limited success is involved. Beyond that, it does contain the seeds for an argument that California law may need to change in the area of disabilities and civil rights awards, with some statement of decision (albeit concise) required to justify an award or denial of fees in these substantive areas of the law.
Canady v. C & CH, LLC, Case No. B210316 (2d Dist., Div. 5 May 13, 2009) (unpublished) involved what may seem to be a routine appeal—a plaintiff recovering $1,000 in statutory damages under the California Disabled Persons Act, Civil Code section 54.3(a), sought to recover $33,918.20 in attorney’s fees but was only awarded $3,000 instead. (CDPA, Civil Code section section 54.3(a) does allow for recovery of fees by a plaintiff winning damages.) Given the limited success by plaintiff and other factors allowing the appellate court to conclude that the claimed hours were unreasonable based on the routine nature of the action, the matter could have stopped here and the decision would be unremarkable except to show how fee awards are usually discounted in cases where the damages award is small and the success is limited in nature. Guess what? There is more to the case, on two fronts.
The first front is the specificity of the order awarding or denying fees in California state court disabilities/civil rights cases. The appellate panel—in a 3-0 decision penned by Presiding Justice Turner—acknowledged that federal courts in disability cases do require an order with a clear explanation of reasons for the attorney’s fees award (e.g., Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)), and that requirement has been held to apply when a California court applies a federal remedy (e.g., Harman v. City and County of San Francisco, 136 Cal.App.4th 1279, 1308, 1317 (2006); Sokolow v. County of San Mateo, 213 Cal.App.3d 231, 248 (1989)). However, the panel did observe that California law generally does not require a lower court to issue a statement of decision in connection with a fee motion. (Maria P. v. Riles, 43 Cal.3d 1281, 1294, 1296 (1987).) Nevertheless, if the plaintiff had requested a statement of decision (but, unfortunately, he did not), this might have been a case where the seeds for a change in California law might have been wrought with respect to civil rights cases, paralleling the result in federal cases. (BLOG OBSERVATION—We are not saying this would have happened; however, the logical extension of the court’s reasoning might well lead to this result. Seeds for a future case.)
The second front is a reminder to all fee litigants on how to develop an adequate appellate record. Plaintiff did not designate a reporter’s transcript of the trial. Big mistake, according to the appellate panel. It found that this omission alone meant there was an inadequate record to review the challenge to the fee award. (See, e.g., Maria P. v. Riles, supra, 43 Cal.3d at 1295-1296; Vo v. Las Virgenes Municipal Water Dist., 79 Cal.App.4th 440, 447 (2000).) So, the lesson is clear: include the reporter’s transcript of both the trial and attorney’s fees motion hearing if you want to avoid affirmance based on an inadequate record!