No Statement of Decision Required, and Not Requested—No Fee Award Error.
This one has quite a lot of permutations for everyone to consider. On the merits, in a first impression case, the appellate held that a defective special verdict is reviewed under a harmless error analysis. However, it also has some nice themes to be scrutinized on attorney’s fees issues.
In Taylor v. Nabors Drilling USA, LP, Case No. B241914 (2d Dist., Div. 6 Jan. 13, 2014) (published), plaintiff won a jury FEHA verdict of $160,000, which was only reduced by $10,000 to $150,000 on appeal. He also was awarded pro-plaintiff oriented attorney’s fees under the FEHA shifting statute (Gov. Code, § 12965(b)) of $680,520.
Aside from the important special jury verdict ruling, the fee award was affirmed.
Plaintiff’s counsel had requested fees of $764,676, inclusive of a 1.5 multiplier. It was clear from the award that a multiplier of 1.4 or 1.5 was applied by the lower court. Although suggesting that appellate review would have been facilitated if the multiplier factors had been specified, the 2/6 Court did acknowledge that no statement of decision was required, and one was not requested either—although it was incumbent on a party to request one. (California Common Cause v. Duffy, 200 Cal.App.3d 730, 754-755 (1987).) No apportionment was necessary because the causes of action were inextricably intertwined. (Wysinger v. Auto. Club of So.Cal., 157 Cal.App.4th 413, 431 (2007).)
The lower court did not abuse its discretion in applying a multiplier given that the plaintiff’s counsel was precluded from other employment and took it on a risky contingency basis. (Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4th 359, 399-400 (2005 [failure to compensate for plaintiff risk in bringing even a wholly meritorious case “would effectively immunize large or politically powerful defendants from being held to answer for constitutional deprivations, resulting in harm to the public”].)
Justice Yegan authored the 3-0 decision on behalf of the appellate court.
BLOG OBSERVATION—At some point, the appellate courts must face a somewhat interesting inconsistency: is a statement of decision required in fee proceedings? The problem is that if no statement is required, then wouldn’t it be futile for a fee claimant to request one? I guess the theoretical answer is no, the trial judge could still issue one if asked, although not required. However, we do see some pragmatic dissonance such that the issue will have to be confronted one day—although maybe it is resolved on the basis we have just discussed.