Court of Appeal:
Defendant Invoked S.C. Case Affirming Judge Treu’s Denial of Fees to FEHA Plaintiff Who Obtained Less Than $25,000 in Unlimited Jurisdiction Case; Judge Fruin’s Grant of Fees in Similar Circumstance Is Differentiated
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a $141,165 attorney-fee award in an action under the Fair Employment and Housing Act, rebuffing the defendant’s contention that no fees should have been allowed because the jury’s verdict was for $25,000, one-cent less than the minimum amount that may be sought in an unlimited jurisdiction case and, in any event, it is grossly out of proportion to the damages.
San Luis Obispo Superior Court Judge Rita Coyne Federman, sitting on assignment to Div. One, wrote the opinion, which was filed Tuesday and not certified for publication. It affirms an order by Los Angeles Superior Court Judge Richard L. Fruin.
Defendant Kohl Building Maintenance, a Chatsworth-based janitorial services company, did not contest the damage-award to its former employee, Gilberto Velez. Appealing from the order to pay attorney fees, it relied upon the California Supreme Court’s Jan. 14, 2010 decision in Chavez v. City of Los Angeles.
The opinion in that case, by then-Justice Joyce Kennard (now retired), affirmed Los Angeles Superior Court Judge Rolf Treu’s denial of attorney fees to a successful plaintiff in an FEHA case.
Under Government Code §12965(b), a trial court has discretion to award attorney fees to a prevailing party in an FEHA case and, Kennard noted, fees are generally granted unless, for some reason, such an award is deemed unjust. However, she observed, in the case tried before a jury in Treu’s court, the plaintiff, a Los Angeles police officer, brought an unlimited jurisdiction action—in which damages are sought in excess of $25,000—and secured a verdict for only $11,500—yet sought attorney fees in the amount of $870,935.50.
Treu ruled that under Code of Civil Procedure §1033(a), costs, including attorney fees, could be denied because the verdict was less than the plaintiff could have obtained in a limited jurisdiction action. Div. Eight of this district’s Court of Appeal reversed, declaring that §1033 does not apply in FEHA; Kennard’s opinion reverses the Court of Appeal.
It holds “that section 1033(a), which grants the trial court discretion to deny costs to a plaintiff who recovers damages that could have been recovered in a limited civil case, applies to actions asserting FEHA claims,” and that Treu did not abuse his discretion.
Kennard said that where “the trial court is firmly persuaded that the plaintiff’s attorney had no reasonable basis to anticipate a FEHA damages award in excess of the amount recoverable in a limited civil case, and also that the action could have been fairly and effectively litigated as a limited civil case, the trial court may deny, in whole or in part, the plaintiff’s claim for attorney fees and other litigation costs.”
Won’t Apply Chavez
In the case before Fruin, Gilberto Velez had obtained a judgment for precisely $25,000. When Kohl’s lawyer tried to argue that attorney fees should be denied based on Chavez, Fruin responded:
“I’m not going to apply Chavez, so let’s just drop that. They had success in a jury trial in a discrimination case.”
While denying the $492,000 attorney fee request by Kohl, Fruin did allow $141,165.
In her opinion affirming the order, Federman said:
“Notwithstanding his conclusory claim that Velez ‘knew’ he would not recover more than $25,000, Kohl does not actually demonstrate this was so. Indeed, the record reflects that Velez’s counsel reasonably could have expected to present substantial evidence that Velez was entitled to an award greater than the jurisdictional limit. The jury awarded Velez $25,000 for his discrimination and failure to accommodate claims—a mere one cent less than the amount that would have qualified the matter as one of unlimited civil jurisdiction.”
Moreover, the jury considered a third cause of action for retaliation as well as a claim for punitive damages. Success on either of these claims could have increased Velez’s award above the $25,000 threshold. That the trier of fact ultimately rejected these claims is not dispositive….Further, as Velez correctly argues in his brief, the amount to be awarded for non-economic harm such as pain and suffering is inherently subjective and not easily amenable to concrete measurement.”
Kohl argued that Fruin, in saying he would not apply Chavez, was proclaiming an unwillingness to adhere to a precedent of the state’s high.
“We do not interpret the trial court’s statement so narrowly,” Federman replied. She wrote:
“Chavez does not compel a trial court to deny an award of attorney fees to a plaintiff when he recovers an amount of damages that falls below the jurisdictional threshold. Rather, Chavez clarified that a trial court has the discretion to do so when plaintiffs counsel knew or should have known at the time the complaint was filed that damages would not exceed the jurisdictional limit….The trial court acknowledged Velez ‘had success in a jury trial in a discrimination case,’ and that the verdict of $25,000 ‘was at the boundary between limited and unlimited jurisdiction.’ The court’s statement that it was “not going to apply Chavez?’ was consistent with its determination that the facts of the current case did not support a denial of attorney fees under the guidance outlined in Chavez.”
Kohl maintained that the attorney fee award was disproportionate to the recovery. Federman cited the Oct. 26, 2006 Court of Appeal opinion by the Fourth District’s Division One in Graciano v. Robinson Ford Sales, Inc. that the usual rule barring disproportionality is not suitable in civil rights cases where damages might be small.
In a three-page ruling, Fruin meticulously examined the various components of the request for fees, lowering per hour rates and disallowing some charges, she noted.
“Thus, Kohl has not demonstrated that the trial court abused its discretion in awarding $141,165 in attorney fees to Velez,” Federman wrote.
The case is Velez v. Kohl Building Maintenance, B300253.
Kohl’s attorneys on appeal were Dean A. Olson and Autumn L. Moore of the Los Angeles firm of Clark Hill LLP. Representing Valez were Nick Ebrahimian, Vincent Granberry, Jordan Bello of the Beverly Hills firm of Lavi & Ebrahimian and Kevin Hermansen of the Van Nuys Law Office of Daniel J. Bramzon & Associates.
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