Second District, Division 3 Sustains Application of Negative Multiplier Based on Plaintiff Prevailing On Only One of Four Claims.
The California Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA), has a mandatory fee-shifting provision for prevailing plaintiffs. (Gov. Code, sec. 12965(b).) Nonetheless, it is tempered by mandating only awards of reasonable fees and costs in the discretion of the trial court. This means that the lower court can either enhance or reduce the award depending on the circumstances, as the next case illustrates.
In Weisdorf-Mahserjian v. Serco, Inc., Case No. B206243 (2d Dist., Div. 3 Mar. 6, 2009) (unpublished), plaintiff pled 5 FEHA cause of action but only prevailed on a retaliation claim for which a jury awarded $43,866.58 for past economic loss. Plaintiff then moved for a $180,545.50 fee award—broken down as a lodestar of $144,434 (number of hours worked by attorneys times their applicable hourly rates) plus a requested 1.25 multiplier. The defendant opposed, arguing fees should be denied outright or that plaintiff should only be awarded 25% of the lodestar because she only prevailed on one out of her four claims.
The trial court determined that plaintiff’s counsel did an excellent job, but that the request had to be scaled back based on plaintiff’s partial limited success. The trial judge awarded plaintiff 25%, which was $45,135.50 based on the verdict, the size of the verdict, and plaintiff’s limited success. Plaintiff was also awarded $7,363.59 in costs.
She appealed, claiming entitlement to all of her requested fees.
The Second District, Division 3 affirmed, finding the trial court did not abuse its discretion in reducing the award and also determining it followed the proper methodology in awarding fees under FEHA.
After determining the lodestar, the trial court may increase or decrease the lodestar by taking various factors into account, including the plaintiff’s degree of success on his/her claims. This adjustment comes in the form of a positive or negative multiplier made to the base lodestar figure. (Greene v. Dillingham Construction N.A., Inc., 101 Cal.App.4th 418, 422 (2002); Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1171 (1998).) The trial court can utilize discretion in reducing the fee award when the plaintiff does not prevail on all of his/her claims. (Graciano v. Robinson Ford Sales, Inc., 144 Cal.App.4th 140, 157-158 (2006).) However, apportionment is not required when work was incurred on an issue common to both a claim on which fees are proper and a claim on which fees are not authorized. (Reynolds Metals Co. v. Alperson, 25 Cal.3d 124, 129-130 (1979); Graciano, supra, 144 Cal.App.4th at 157-159; Greene, supra, 101 Cal.App.4th at 423-424.)
In this particular case, the trial court enhanced the lodestar positively by 1.25 and then applied a 0.25 negative multiplier to the enhanced lodestar given that plaintiff only prevailed on her retaliation claim. The appellate court saw nothing wrong with this logic, especially given that it had an inadequate record to conclude the 25% apportionment was faulty. “The trial court was in the best position to understand the relationship between plaintiff’s retaliation claim and her other claims and to determine whether time spent on her other claims contributed to plaintiff’s objectives at trial.” (Slip Opn., at p. 7.)
Plaintiff argued that no reduction was required based on Wysinger v. Automobile Club of Southern California, 157 Cal.App.4th 413, 430-431 (2007), but that case was found distinguishable because (1) plaintiff there got a much better result, and (2) the issues in the case were found to be intertwined (a finding not made in Weisdorf-Mahserjian).