Fourth District, Division 2 Addresses FEHA Fee Shifting Issues.
An LDS-affiliated plaintiff recovered a jury verdict from an employer based on religious discrimination, but it was unclear that she prevailed under her FEHA claim, although she did recover under Labor Code section 218.5 for unpaid commissions (a claim carrying a statutory fee-shifting clause). Although requesting $946,324 under FEHA, plaintiff instead was awarded $83,088.70 in fees under section 218.5. Six dismissed defendants were awarded FEHA fees of $84,160. Both sides appealed.
The Fourth District, Division 2 in Clark v. Sky Valley East, LLC, Case Nos. E047609 & E048324 (June 25, 2010) (unpublished) affirmed the fee award to plaintiff, finding it was not clear she prevailed under FEHA but sustaining the section 218.5 fee order. Nothing in the record demonstrated the lower court ignored the lodestar analysis when the judge doubled the net contingency fee owed by plaintiff to her lawyers. Giving weight to the contingency fee agreement was not improper. (People ex rel. Dept. of Transportation v. Yuki, 31 Cal.App.4th 1754, 1772 (1995).) With respect to the defense fees under FEHA, they might have been appropriate, but a remand was in order because the trial court failed to make nonwaivable written findings of frivolousness as required under Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4th 859, 864 (2001). (See also Young v. Exxon Mobil Corp., 168 Cal.App.4th 146, 1474 (2008).) Because findings of frivolousness might have been able to have been made by the lower court, remand was the proper course of action. (Villanueva v. City of Colton, 160 Cal.App.4th 1188, 1203 (2008).)