Second District, Division 6 Rejects Plaintiff’s Request for Award of $114,895 in Fees and $27,441.35 in Costs.
Although the courts will award appropriate attorney’s fees to prevailing plaintiffs in civil rights disability cases, they will also discount for limited success and overinflated claims of complexity in litigation of the case.
Molski v. Evergreen Dynasty Corp., Case No. B208988 (2d Dist., Div. 6 Sept. 14, 2009) (unpublished) illustrates this result in a recent “real time” case just decided upon appeal.
There, disabled plaintiff sued for multiple violations under civil rights and other state statutes, many of which carried mandatory fee-shifting provisions in favor of prevailing plaintiffs. However, plaintiff only recovered mandatory minimum awards totaling $5,000 and lost several claims (including claims with punitive damage exposure) against the main company defendant (respondent on appeal). Also, another defendant settled for $14,950 before trial, with no apportionment between damages and attorney’s fees. Plaintiff failed to serve a costs memorandum, but did move to recoup $114,895.00 in fees and $27,441.35 in routine costs.
The trial court awarded $6,659.15 in fees, using a reasonable lodestar ($66,591.50) but then reducing it by a tenth based on lack of difficulty, limited success and skill displayed, and the absence any evidence showing that plaintiff’s counsel had to forego other work. Plaintiff (or likely his attorney), not being a “happy camper,” appealed.
Plaintiff did not succeed, with the Second District, Division 6 affirming in a 3-0 opinion authored by Justice Coffee.
The record showed that the lower court did follow the correct lodestar methodology, and did not err in reducing for the negative multiplier factors.
First, the trial court correctly discounted the hours spent in pursuing recovery against the settling defendant. (Californians for Responsible Toxics Mgt. v. Kizer, 211 Cal.App.3d 961, 977 n. 7 (1989).)
Second, the negative multiplier factors were properly applied. The case was not novel or particularly difficult, being one of hundreds of nearly identical cases filed by plaintiff and his counsel. Counsel was not skillful, and over-pled his client’s case, leading to dismissal of a prior federal case (the one refilled in state court) and dismissal of several claims. Although counsel’s fee recovery was contingent, the risk of nonpayment was not great given that a fee award was mandatory upon proof of a code violation. However, plaintiff’s counsel did not suffer from a lack of income during the litigation—in 2004 alone, counsel settled at least 43 cases for a total of $837,300.
Third, plaintiff’s success was limited based on failure to recover on several other state claims (including claims that sought injunctive and punitive damages relief).
Last, but not least, plaintiff complained about not being awarded routine costs. However, he failed to timely file a cost memorandum—a clear waiver. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard, 223 Cal.App.3d 924, 929 (1990).)