Court of Appeal:
Attorney Fees Properly Pared Based on Lack of Civility
Opinion by Justice Egerton Agrees With 2021 Opinion Authored by Her Husband, Justice Wiley
By a MetNews Staff Writer
Div. Three of the Court of Appeal for this district held yesterday that trimming an award of attorney fees by $457,863 based on the lawyer’s lack of civility did not amount to imposing a statutorily unauthorized sanction.
Justice Anne H. Egerton wrote the unpublished opinion in which she expressed agreement with the view expressed by her husband, Justice John Shepard Wiley Jr. of this district’s Div. Eight, in his 2021 opinion in Karton v. Ari Design & Construction, Inc.
Los Angeles Superior Court Judge Michael P. Linfield relied on Wiley’s opinion in Karton in lowering the award for services to the plaintiff by attorney Perry G. Smith, of the Irvine firm of Smith Riddles LLP, in light of his “[d]eceptive, improper and unprofessional conduct.” The judge explained that he was applying “a .4 negative multiplier to account for Plaintiff’s counsel’s repeated and apparently intentional lack of civility throughout the entire course of this litigation,” producing an award of $686,795.62.
Smith had sought $2,089,272.50.
In her opinion affirming Linfield’s April 18, 2022 order, Egerton cited the California Supreme Court’s 2001 opinion Ketchum v. Moses in which Justice Stanley Mosk, now deceased, recited that a lodestar figure (hours reasonably expended times the prevailing hourly rate in the community) may be adjusted up or down based on the attorney’s skill.
Grimes then invoked Karton, in which Wiley declared:
“Trial judges deciding motions for attorney fees…permissibly may consider whether an attorney’s incivility in litigation has affected the litigation costs.”
Wiley said that Los Angeles Superior Court Judge Elaine W. Mandel had “noted the incivility” in briefing by Beverly Hills attorney David S. Karton, the plaintiff in the case. He commented:
“Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar….Civility is an aspect of skill.”
The justice added:
“It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.”
Egerton said in yesterday’s opinion:
“We agree a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees. A court may apply, in its discretion, a positive or negative multiplier to adjust the lodestar calculation—a reasonable rate times a reasonable number of hours—to account for various factors, including attorney skill….The record before us amply supports the trial court’s finding that plaintiff’s counsel was repeatedly, and apparently intentionally, uncivil to defense counsel—and to the court—throughout this litigation.”
She went on to say that “a downward departure from the lodestar figure is justified where the attorney demonstrates he is less skilled than would be expected of an attorney with comparable expertise or experience, billing at the same rate.”
The jurist declared:
“We are convinced the trial court did not choose to apply the negative .4 multiplier to sanction or punish plaintiff’s counsel. The court properly followed the lodestar adjustment method to arrive at a reasonable attorney fee award given the relevant case-specific factors that weighed in favor of both augmenting and diminishing the lodestar figure.”
The litigation was based on a claim by Smith’s client, Steve Snoeck, against ExakTime Innovations, Inc., for disability discrimination, in violation of the Fair Employment and Housing Act. The judgment in favor of the plaintiff was affirmed in an earlier decision.
“ExakTime presented undisputed evidence showing Smith accused its individual attorneys of telling the courts ‘lies,’ committing ‘fraud’ and a ‘brazen con,’ making ‘misrepresentations’ to the trial court and this court, engaging in ‘sleazy’ and ‘cringeworthy’ conduct, and ‘dup[ing] the court of appeal,’ ” Egerton wrote.
She said harsh statements were included by Smith in his appellate brief in connection with the appeal from the judgment and his brief in the appeal from the fee-reduction.
“Litigation by its nature is contentious; the parties are in court because they do not agree. One side’s frustration with the other side’s legal theory is understandable. Certainly, attorneys must advocate for their clients’ positions, point out the flaws in opposing counsel’s argument, and express disagreement with the court. But Snoeck’s counsel’s frustration did not give him a license to personally attack defense counsel and belittle the trial court.”
“Smith’s incivility does not reflect persuasive advocacy. A reasonable attorney would not believe that communicating with opposing counsel in such a way would ‘bring them around,’ so to speak. Nor does antagonizing the trial court help further one’s client’s cause. In short, Smith’s beratement of opposing counsel and belittling of the trial court were unnecessary to advocate zealously on Snoeck’s behalf.”
Smith commented yesterday:
“The Court of Appeal’s opinion offends due process and free speech rights The opinion punished successful prosecution of civil rights violations. The rule only allows contingency fee lawyers to have their fees reduced by judges who create their own definitions of ‘civility.’ The opinion disregards completely the purposes of, and public policies behind, the Fair Employment and Housing Act’s fee-shifting provision.
“The opinion will have a chilling effect on the contingency fee-based enforcement of civil rights because it affirms punishing only contingency counsel when a judge chooses to categorize conduct as ‘incivility’ (there remains no definition of this concept within the trial court’s order or the opinion).
“Smith Riddles LLP will continue to prosecute disability discrimination cases successfully and in the manner its experienced, winning, counsel deem appropriate, winning, advocacy.”
The case is Snoeck v. ExakTime Innovations, B321566.
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