Use of Multiplier Appropriate Even Where Substantial Punitive Damages Also Were Awarded.
Bimbo Bakeries, known for selling such brands of Orowheat and Entemann’s, suffered an adverse jury verdict based on plaintiff’s complaint for wrongful termination, gender and pregnancy discrimination, and violation of related California statutes. The jury awarded plaintiff $340,700 in compensatory damages and also assessed $2 million in punitive damages against Bimbo Bakeries. Because section 12965(b) of the Fair Employment and Housing Act (FEHA) permits the trial court to award attorney’s fees and costs to a prevailing party, the lower court also awarded plaintiff fees in the amount of $1,059,350.60 using a 1.5 multiplier. Bimbo Bakeries appealed use of the multiplier.
The First District, Division 4, in Lopez v. Bimbo Bakeries USA, Inc., Case Nos. A119263 & A119720 (Apr. 23, 2009) (unpublished), rejected defendant’s arguments relating to the use of the multiplier.
1939 World's Fair. Wonder Bakery. Library of Congress.
Citing Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128 (1998), defendant argued that a multiplier was inappropriate because the case against it was “nothing more than a personal injury action.” The appellate panel disagreed, finding that Weeks was trumped by Ketchum v. Moses, 24 Cal.4th 1122, 1132-1133 (2001), which reaffirmed that enhancement for contingency risk is appropriately used to determine the propriety of awarding a multiplier in a given case.
Defendant also relied on Weeks for the proposition that multipliers and punitive damages are mutually exclusive. Incorrect, said the Court of Appeal. “We do not interpret Weeks as adopting a strict either/or approach in cases involving both the award of punitive damages awards and attorney fee enhancements. Rather, Weeks explains that a substantial punitive damages award militates against enhancing a fee award. . . . However, nothing in Weeks purports to proscribe the broad discretion of the trial court in adjusting a lodestar amount.” (Slip Opn., at pp. 30-31.)
The multiplier in this case was well justified, reasoned the appellate panel, based on the contingent risk/delay involved (three years of work that siphoned other cases away from plaintiff’s attorneys) and the skill with which the case was litigated (plaintiff’s counsel presented a cogent and compelling case even though the facts were confusing and difficult to follow). The 1.5 multiplier was aptly used, and plaintiff was also awarded costs on appeal (which likely means that more fees will be awarded to the victorious plaintiff in another fee proceeding).
