Fourth District, Division 3 Affirms Fee/Costs Award Based on Retaliation Jury Verdict Against City of Anaheim.
In our category “Civil Rights,” we have surveyed many FEHA fee/costs awards because the statute is pro-plaintiff oriented. Here is one where there were both FEHA and non-FEHA claims, but no allocation was necessary because the claims were “intertwined.”
Plaintiff sued City of Anaheim and its police chief for FEHA retaliation, breach of contract, and breach of the implied covenant, with a jury returning verdicts of $250,628 in economic damages on all counts and $25,000 in noneconomic damages on the retaliation count. The trial judge then granted plaintiff over $619,000 in attorney’s fees and nearly $49,000 in costs under the FEHA claim (even though plaintiff had asked for fees of over $1.2 million, based on a multiplier of 2 applied to the $619,000 claimed lodestar). Justice Rylaarsdam, on behalf of a 3-0 panel of the Fourth District, Division 3, affirmed the fee/costs award, even though reversing the retaliation judgment against police chief and the contract-based claims against both defendants. The case is Hedgpeth v. City of Anaheim, Case Nos. G040358/G040571 (4th Dist., Div. 3 Mar. 23, 2010) (unpublished).
Defendants primarily argued that apportionment of fees was necessary between the FEHA and non-FEHA claims. Not so, said the appellate court. It, like the trial court, found the claims to be intertwined, such that it was no abuse of discretion in not requiring an allocation. (Thompson Pacific Constr., Inc. v. City of Sunnyvale, 155 Cal.App.4th 525, 555.)
With respect to the costs award, defendants only contested them in their opposition to the fee motion. This was too late, with the failure to timely file a motion to strike/tax costs constituting a waiver of the right to object. (Douglas v. Willis, 27 Cal.App.4th 287, 289-290.)
Birdseye of Anaheim. 1915. Library of Congress.
