In a Split Opinion, Second District, Division 6 Rejects Plaintiff’s Requested $24,871.75 In Light of His Recovery of $4,000 Minimum Statutory Damages.
In cases involving mandatory fee-shifting statutes (such as the Unruh Act, Civil Code section 52(a)), we have seen an emerging theme that encompasses a large number of attorney’s fees recoveries: the success of the litigant usually has a great deal to do with the fee award in connection with the trial court’s discretionary decision making calculus. The next decision we examine is no exception to this observation even though a dissenting justice saw things differently.
Plaintiff in Barrette v. Costco Wholesale Corp., Case No. B202606 (2d Dist., Div. 6 Apr. 16, 2009) (unpublished) won minimum statutory damages of $4,000 under the Unruh Act arising out of a violation under the American with Disabilities Act (ADA, 42 U.S.C. sec. 12182). The small award was the result of defendant moving quickly to put policies in place to rectify future ADA violations. The trial court awarded plaintiff only about one half of requested fees–$12,436 out of the sought-after $24,871.75 lodestar (originally, plaintiff sought $27,278, but the trial court eliminated $2,856.25 to reach the lodestar amount). Plaintiff appealed, claiming a higher fee award was in order.
In a 2-1 decision, the Second District, Division 6 disagreed with plaintiff’s challenge on appeal.
The majority (Acting Presiding Justice Yegan and Justice Coffee) found no abuse of discretion in the trial court’s reduction of the lodestar amount. The reason: plaintiff only achieved limited success in recovering minimum statutory damages, with defendant voluntarily becoming ADA compliant. The majority also rejected that the trial court used a formula or arbitrarily “slashed” the fee award.
Justice Perren, in dissent, believed the fee award to be too low. Costco mounted a vigorous dissent and rejected an early settlement offer by plaintiff based on “institutional issues.” The lodestar amount was incurred “from defendant’s intransigence in resolving the matter,” opined Justice Perren. Because the fees were justified given the defense stance in the case and plaintiff did achieve ADA compliance, the dissent would have reversed and remanded for a recalculation of proper fees. “A rule that considers the proportionality of award and fees ‘would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damage to obtain redress from the courts,’” citing City of Riverside v. Rivera, 477 U.S. 561, 578 (1986).