First District, Division 4 Sustains Fee Award of $676,001 Based on a 1.25 Multiplier, Rather than Plaintiff’s Requested $940,590.87 Lodestar Plus a Proposed 2.0 Multiplier.
The First District, Division 4, in the unpublished decision of Tarver v. City and County of San Francisco, Case No. A116731 (1st Dist., Div. 4 Mar. 23, 2009) (unpublished), has penned a nice opinion showing the deference that appellate courts will give to well-reasoned decisions by trial courts, even where the lower courts reduce proposed lodestars and award diminished multipliers.
Tarver involved a former San Francisco patrol officer suing under the Fair Employment and Housing Act (FEHA) for failure to accommodate his disability, failure to prevent discrimination, and disability discrimination. Plaintiff sought reinstatement and recovery of $1.776 million in economic damages plus non-economic damages. The litigation spanned almost four years and was vigorously contested by City, which won a summary judgment that was reversed in part on appeal in plaintiff’s favor. Plaintiff withdrew his reinstatement demand before trial, obtained a $428,450 jury verdict in his favor on the failure to accommodate/failure to prevent discrimination claims, and lost on his disability discrimination-based claims. Plaintiff moved for mandatory FEHA fees based on a requested lodestar of $940,590.87 for over 2,200 hours of work, plus a 2.0 multiplier. (On the fee motion itself, plaintiff requested compensation for 118.38 hours of work.) In a detailed 10-page order, the trial judge awarded total fees of $676,001 (which included a 1.25 multiplier and the “fees on fees” expenses). Plaintiff appealed, claiming more fees should have been awarded.
On review, plaintiff could not beat the deferential abuse of discretion standard, because the trial judge’s order demonstrated consideration of the correct legal principles such that discretion became the only battleground. (City of Santa Monica v. Stewart, 126 Cal.App.4th 43, 83 (2005).) This is tough appellate terrain to surmount, with plaintiff not being successful.
The lower court correctly reduced the lodestar due to excessive work, duplicative billing, and partial success. It also showed some perceptiveness in still awarding many hours for multiple attorneys given the recognition that contingency cases involve sole practitioners and small law offices with special collaborative needs not existing with large law firms. However, the lower court felt that a one-third reduction was required for many of the attorney hours based on duplication and inefficiency. The trial judge also properly reduced hours based on plaintiff’s partial success—reductions for the substantial time expended on the withdrawn reinstatement demand and for plaintiff only prevailing on two of six causes of action. (Harman v. City and County of San Francisco, 158 Cal.App.4th 407, 417-418 (2007) [degree of success is the most critical factor].)
The trial judge properly reduced numerous hours spent in preparing the fee motion, determining that much of it was redundant boilerplate from past FEHA cases and the briefing was “patent overkill” given that the defense did not contest fee entitlement.
The appellate court found no error in reducing the hourly rate of a first year attorney from a requested $260 to an awarded $150 per hour, based on plaintiff’s own declarations indicating that first-year associates at two San Francisco employment defense law firms billed at rates ranging from $125 to $165 per hour. (BLOG NOTE—Be careful what you submit in support of fee applications.) Similarly, the lower court did not abuse its discretion in reducing plaintiff’s lead attorney’s hourly rate from the claimed $450 to an awarded $350 per hour, grounded on what lead counsel had been awarded for his past work in Horsford v. Board of Trustees of Cal. State University, 132 Cal.App.4th 359 (2005).
The award of a 1.25 versus 2.0 multiplier was not improper, because the trial court did consider the discretionary adjustment factors set forth in Ketchum v. Moses, 24 Cal.4th 1122, 1132 (2001) and Nichols v. City of Taft, 155 Cal.App.4th 1233, 1240 (2007). Interestingly enough, plaintiff submitted the declaration from a mathematics professor urging that, from a statistical viewpoint, the most appropriate multiplier is 2.0 as far as taking into account the risk involved in a FEHA contingency case. Did this mean the trial court abused its discretion in not crediting this mathematical analysis? Hardly: “[Plaintiff] cites no authority, however, for the proposition that a trial court is even required to take such a statistical analysis into account as a factor when awarding attorney fees—much less that a trial court abuses its discretion in failing to adopt it.” (Slip Opn., at p 13.)