C.A. Affirms $1.9 Million FEHA Attorney Fee Award

Tuesday, December 5, 2017

Page 1

C.A. Affirms $1.9 Million FEHA Attorney Fee Award

Issues in Single-Plaintiff Case Not Novel, but Panel Says Other Factors Militated in Favor of Doubling Lodestar Amount; Judge Linfield’s Apparent Presumption of 2.0 Multiplier Not Embraced

By a MetNews Staff Writer

The Court of Appeal for this district has affirmed a $1.9 million attorney fee award in the case of a parking control officer who prevailed in her retaliation action against the City of Beverly Hills, with the justices in Div. Three holding that a doubling of the lodestar figure was, under the circumstances, appropriate.

Lawyers for the woman, suing under the Fair Employment and Housing Act (“FEHA”), persuaded a jury that she was deserving of $1 million in compensatory damages, which was not challenged on appeal.

Justice Luis Lavin wrote the unpublished opinion, filed Friday. It affirms an order by Los Angeles Superior Court Judge Michael P. Linfield in setting fees, as authorized by the FEHA, but distances itself from his one-liner that there should “normally” be a 2.0 multiplier where a plaintiff in a lawsuit pursuant that act wins at trial.

Linfield determined the fees after a jury on June 4, 2015, found the city had retaliated against plaintiff Elisa Lopez, then 38. After serving a probationary period as a supervisor, she was not appointed to a permanent spot, she contended, because of complaints she made against her own supervisor, Gregory Routt.

Offended by Website

Routt maintained a website, illegalaliennewsupdate.com, which Lopez found abusive because it opposed unlawful entries into the United States and her father was an undocumented alien.

“I told him I thought the website was offensive and anti-Mexican,” she testified. “He just blew me off and chuckled about it.”

Several city employees testified that Lopez, as a probationary supervisor, manifested difficulty in working with those she supervised. Jurors nonetheless rejected the city’s explanation of nondiscriminatory reasons for the plaintiff not being promoted.

While finding in her favor on the retaliation claim, they found against her on her claims of harassment and race/national origin discrimination, spurning the argument to them by lawyer William W. Bloch that the city had “stereotyped her as a gang member from the barrio.”

$2.5 Million Sought

The lawyers sought an award of $2,533,167.00 based on a lodestar (the number of hours times the hourly rate) of $1,266,583.50, enhanced by a multiplier of 2.0. Linfield reckoned the lodestar at $1,030,747.50 after making various deductions.

(He shaved the 1,574.9 hours claimed by Bloch based on some of the work he did being what an attorney-fee expert for the city denominated “junior level tasks,” crediting the lawyer with 1,259.0 hours. Linfield explained: “Prior to my appointment to the Court, this judge was a sole practitioner; the Court understands that a sole practitioner must often do all of the tasks required of an entire law practice—whether the tasks be those of a secretary, paralegal, junior associate or partner. However, this creates a problem in determining a reasonable lodestar.” He opted to reduce the recognized number of hours rather than adjusting the per-hour fee or assigning different rates to different tasks.)

In applying a multiplier, Linfield looked to the factors enumerated in the California Supreme Court’s 2001 opinion in Ketchum v. Moses: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.”

Los Angeles Superior Court Judge Michael Linfield’s calculation of lodestar.

Linfield’s Explanation

Utilizing those factors, Linfield declared:

“The issues addressed in this FEHA action were not particularly novel. Nonetheless, the case presented difficult issues of fact that required extensive motion practice and a one-week jury trial. This has given the Court ample time to see evidence of counsels’ skill in representing their client. The Court was particularly impressed with attorney Bloch’s trial skills. The Court finds that at least three of the four criteria listed in Ketchum for the application of a multiplier exist in the present case….

“The court is also aware that plaintiffs counsel began work on this case more than four years ago and has both fronted costs and worked without compensation for that length of time….

“The Court finds that, considering all of the circumstances of this case, a multiplier of 2.0 is appropriate.”

Portion Not Doubled

Doubling $1,030,747.50 would have produced a fee of $2,061,495. However, Linfield subtracted $116,200.00—resulting in an award of $1,945,295—explaining:

“[D]uring oral argument, defense counsel correctly noted that, while the work that was done prior to the jury’s verdict on June 3, 2015 was clearly contingent, once plaintiff received a verdict in her favor, plaintiff’s counsel was virtually guaranteed attorneys fees under FEHA. The court agrees with defense counsel that the work done after June 3, 2015 should not be subject to a multiplier.”

Linfield observed that plaintiffs in FEHA cases win only about half the time; a plaintiff’s lawyer gets nothing if the client loses; and there has to be an incentive to pursue the case. He remarked:

“The above analysis would lead to the conclusion that if a plaintiff wins her FEHA case that goes to trial, plaintiff’s counsel should normally receive a 2.0 multiplier to compensate counsel ‘for contingent risk.’ ”

Argument on Appeal

The latter remark drew criticism from the city, construing it as a declaration by Linfield of a presumption of a multiplier of two where the plaintiff wins in an employment discrimination/retaliation case. The city argued on appeal:

“Starting from that default position misconstrues the law, relieves the party seeking fees of her burden of proof, and inappropriately puts a thumb on the scale in favor of counsel’s request to double an already sizeable fee award.

Lavin responded:

“The court’s one-sentence statement in its 20‑page ruling has been taken out of context by the City. In the very next section of its ruling, the court expressly found that ‘at least three of the four criteria listed in Ketchum for the application of a multiplier exist in the present case.’ That is, those non-contingency factors—for example, difficult issues of fact, and the skill displayed in presenting them—also weighed in favor of applying a multiplier. Indeed, the court expressly found “that, considering all of the circumstances of this case, a multiplier of 2.0 is appropriate.’ (Emphasis added.) It is apparent from the face of the court’s order that in exercising its discretion, the court properly considered relevant factors notwithstanding its comment about contingency risk.

“In any event, it was not inappropriate for the court to consider contingency risk as one relevant factor. Indeed, contingency risk is one of the most common fee enhancers.”

Right Result

While the city took issue with Linfield’s application of the Ketchum factors, Lavin said that “[e]ven if the court’s reasoning may be internally inconsistent and legally flawed, a matter open to debate,” there was no abuse of discretion because the right result was reached.

The case is Lopez v. City of Beverly Hills, B268451.

Attorneys on appeal were Lisa Perrochet and Shane H. McKenzie of Horvitz & Levy, along with Donald L. Samuels and Julie W. O’Dell of Bryan Cave, for the city, and Bloch teamed with Joseph S. Klapach of Klapach & Klapach, for Lopez.

Joseph Klapach commented yesterday:

“We applaud the Court of Appeal’s decision to affirm the trial court’s award of nearly $2 million in attorney’s fees to Ms. Lopez. After Ms. Lopez complained about the harassment she had experienced at the hands of her male supervisor, the City of Beverly Hills retaliated against her by demoting her and denying her a promotion to a job for which she was the most qualified.

“Outraged by the City’s egregious misconduct, a jury awarded Ms. Lopez $1 million in damages. The Court of Appeal’s decision affirms Ms. Lopez’s right to recover the substantial attorney’s fees that she was forced to incur in order to vindicate her legal rights. By fully compensating Ms. Lopez for the attorney’s fees that she incurred, this opinion ensures that the victims of unlawful retaliation will have an opportunity to be heard, and that there will be capable, experienced attorneys like Mr. Bloch standing ready to take up their cause.”