Metropolitan News-Enterprise


Friday, May 1, 2020


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Court of Appeal Gives Third Victory To Stuttering Prison Guard

This Time, It Finds Award of Attorney Fees in FEHA Action Inadequate; Panel Previously Reversed Summary Judgment, Then New-Trial Order


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal yesterday gave a prison guard who sued over discrimination based on his stuttering his third appellate victory, this time holding that he was short-changed by a Superior Court judge who awarded slightly in excess of $800,000 in attorney fees when he had sought roughly $2.4 million.

Acting Presiding Justice Eileen Moore wrote the opinion, which was not certified for publication, She also authored a Feb. 25, 2014 unpublished opinion in the case reversing summary judgment in favor of defendants California Department of Corrections and Rehabilitation (“CDCR”) and the state, and a July 9, 2018 published opinion reversing an order granting the CDCR a new trial.

Yesterday’s opinion faults San Bernardino Superior Court Judge Bryan F. Foster for basing his $810,067.50 in award of statutory attorney fees to plaintiff Augustine Caldera, in his action under the Fair Employment and Housing Act (“FEHA”), on the prevailing rate charged by lawyers in the vicinage.

Caldera was represented not by a local lawyer, but by Pasadena attorney Todd Nevell of Scolinos, Sheldon & Nevell.

Trial Court’s Ruling

Declining to award $750 for hour, plus a multiplier, as sought, Foster said:

“The hourly rate requested by the Plaintiff is too high for this locale. A reasonable rate is between $450 and $550, before application of any multiplier. Considering the length of this case and the hurdles Plaintiff had to overcome to get to this point, the higher rate of $550 per hour is reasonable.”

What Foster overlooked, Moore wrote, is that “there was unrefuted evidence that Caldera was unable to find an attorney that would take his case in the Inland Empire (the greater San Bernardino and Riverside areas).”

It is established, she declared, that if “a plaintiff needs to hire out-of-town counsel, a trial court must consider counsel’s ‘home market rate’ when setting the hourly rate, rather than the local market rate,” and it was “an abuse of discretion” for Foster to have failed to do so.

The case was remanded for a new determination of fees.

Earlier Decisions

In 2018, Moore wrote for the Orange County-based panel in reversing Foster’s order granting CDCR a new trial on the issue of damages. A jury had awarded Caldera $500,000 in noneconomic damages based on the persistent mimicking or mocking of his stuttering.

Moore said in that opinion that “there was sufficient evidence—the testimony of several witnesses—to support the jury’s factual determination that the harassing conduct in Caldera’s workplace was both severe and pervasive,” noting that “the jury only needed to find the harassing conduct to be either severe or pervasive.”

The 2014 opinion by Moore, reversing summary judgment awarded by San Bernardino Superior Court Judge Brian S. McCarville in favor of CDCR and the state, said:

“We conclude that having a stutter constitutes a disability under the Fair Employment and Housing Act (FEHA). We further conclude the moving papers contain sufficient evidence for a trier of fact to reasonably find Caldera was discriminated against because he stutters. Additionally, from all of the papers submitted, we find a trier of fact could reasonably deduce Caldera was discriminated against and suffered an adverse employment action shortly after he filed a complaint about being mocked and mimicked for stuttering, that Caldera was subjected to harassment and a hostile working environment both because of his stutter and because he filed a complaint about being mocked for having a stutter, that defendants CDCR and the State of California failed to accommodate Caldera, that Caldera was retaliated against because he filed a complaint about being mocked for his stutter, and that defendants CDCR and the State of California failed to prevent and/or investigate discrimination against Caldera.”

The opinion affirmed partially summary judgment in favor of a sergeant at the prison.


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