However, Fee Multiplier Not Allowed Under Section 996.4 And Plaintiffs Did Well To Cross-Appeal Given That Costs To Prosecute 996.4 Recovery Not Allowable Under 996.4, But Was Allowable Under CCP § 1021.5.
This next case counsels that a protective cross-appeal can be a true salvation. It was for the successful plaintiffs in Hosac v. County of Los Angeles, Case Nos. B267998 et al. (2d Dist., Div. 2 Oct. 10, 2017) (unpublished).
What happened here is that two public employee police officers got caught up in a breach of contract action involving L.A. County. They sought defense and indemnification from the government, to no avail, but were eventually dismissed from the breach of contract action. Employees then sought recoupment of their fees and costs under Government Code section 996.4, which does allow recapture for public employees acting within their chain of command. The trial judge awarded them $473,510.75 for their strict recoupment claim, which included a multiplier on lodestar fees of $323,662.75. The lower court also awarded them $394,250-plus for fees/costs in prosecution efforts in obtaining fees, although denying the employees’ efforts to obtain them under the private attorney general statute also. County appealed, and employees protectively cross-appealed. Employees did well to cross-appeal.
The Court of Appeal determined that section 996.4 only allows recovery of fees actually incurred, such that the multiplier amount could not be allowed but only the $323,662.75 lodestar amount. As far as the secondary 996.4 award, the appellate court agreed there was no statutory basis for such an award under 996.4 but did determine the employees were entitled to it under CCP § 1021.5 based on their cross-appeal—after all, they vindicated an important right to follow the chain of command and should not be denied fees on that basis. So, in the end, employees ended up with $736,097.98 as the total fees/costs award—not bad, not bad.