Trial Judge Reduced Defense’s First Request By 75%.
In Radakovic v. County of Los Angeles, Case No. B266194 (2d Dist., Div. 5 Sept. 1, 2016) (unpublished), a trial judge awarded attorney’s fees to the defense (L.A. County) in the sum of $35,185 after one plaintiff lost a summary judgment motion and then plaintiffs together lost another summary judgment motion in two FEHA case. The basis for the fee award was Government Code section 12965(b) which allows courts discretion to award prevailing parties their reasonable attorney’s fees, but only against a plaintiff if the FEHA action was objectively without foundation when brought or prosecuted after it became objectively meritless in nature. (Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 115 (2015).) This was only 25% of the defense’s fee request.
Plaintiffs’ appeal of the fee award was unavailing. The defense initially requested fees of $141,000 based on $300-400 hourly rates. However, because County’s attorney only charged $155 per hour, the defense did a smart thing: it alternatively requested reduced fees of $70,525 based on the lower hourly rate. The lower court awarded about half of the lower request and only 25% of the higher request in arriving at the $35,185 award.
The appellate court did determine the FEHA action was objectively unreasonable based on (1) the loss of two summary judgment motions, (2) no exhaustion of administrative remedies by one plaintiff in the second suit, and (3) the absence of a causal link between the earlier lawsuit and later suspension leading to the second suit. As far as reasonableness of the fee award, the lower court certainly pared it down reasonably, with the absence of a reporter’s transcript of the fee hearing further hampering review.
BLOG TIP—County did provide the trial judge two alternatives for the fee award, with the second option based on very low hourly rates which municipalities usually require counsel to accede to. This highlights two good fee petition tips: give the trial court some alternatives or provide some voluntary reductions to make its decision easier.