. . . And Gets Remand For More Retrial and Appellate Fees!
Although this case took a very circuitous appellate route (through two appeals), tenacity sometimes pays off. It did in this one, especially where there was a mandatory FEHA fee-shifting provision in favor of the prevailing plaintiff.
Fotheringham v. Avery Dennison Corp., Case No. B217757 (2d Dist., Div. 7 Mar. 22, 2011) (unpublished) involved a FEHA plaintiff who, after a prior appellate decision reversing a summary adjudication of two claims and a punitive damages demand even after plaintiff won damages for emotional distress and lost wages, still won $24,000 for mental suffering against defendant employer in a retrial. However, the trial court erroneously refused to add the $24,000 in retrial damages to the damages award in the first trial ($30,000, for a grand total of $54,000). After the first trial, the trial judge awarded plaintiff $383,810 in attorney’s fees, with another judge awarding the same amount after the result reached in the retrial. The lower court also awarded some costs, but taxed about $15,000 in expert witness fees. Both sides appealed in this confusing back-and-forth litigation.
The appellate court, on appeal, basically affirmed but remanded for some further refinements.
The main adjustment was that the trial court needed to award some more attorney’s fees to plaintiff for prevailing on the FEHA claim on retrial. Also, given that Government Code section 12965(b) allows for recovery of expert fees, plaintiff was entitled to those, too. Finally, she was entitled to appellate costs for winning on appeal. However, plaintiff lost the argument that she should have been awarded a fee multiplier.
“Perseverance Rewarded”. "Please help a poor man; I’ve got the rheumatics so bad I kin hardly walk, Boss!" 1891. Library of Congress.