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Court of Appeal:
Judge Erred in Awarding Attorney Fees to Unsuccessful Litigant
By a MetNews Staff Writer
The Court of Appeal for this district has declared that a Los Angeles Superior Court judge misconstrued statutory and case law authority in awarding attorney fees amounting to $400,000, as well as costs totaling $52,043.65, in favor of a deputy sheriff who attained no monetary recovery or anything else of value in his action against the county for whistle-blower retaliation.
It was the County of Los Angeles that was the victor in the litigation, not plaintiff D’Andre Lampkin, Presiding Justice Helen Zukin of Div. Four said in an opinion filed Tuesday. The opinion reverses the judgment and a post-judgment order by Judge Maureen Duffy-Lewis.
The judge purported to act pursuant to Labor Code §1102.5—the whistleblower-retaliation statute—which, in subd. (j), authorizes an award of “reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.”
Zukin wrote:
“Lampkin did not obtain any relief….Therefore, he did not bring a ‘successful action’ within the meaning of section 1102.5, subdivision (j). He is not entitled to an award of attorney’s fees.
The jurist went on to find that a California Supreme Court decision upon which Duffy-Lewis relied did not support the attorney-fee award.
Costs were improperly awarded, she said, because Lumpkin was not the “prevailing party” as defined by Code of Civil Procedure §1032(b).
Same-Decision Defense
The county pled an affirmative defense—known as the “same-decision defense”—under Labor Code §1102.6. That provision says:
“In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”
The county contended that Lampkin—who reported allegedly unlawful conduct on the part of another deputy—would have incurred a suspension and a transfer even if he had not engaged in whistleblowing.
A jury, in special verdicts, found that Lampkin succeeded in showing retaliation, but it responded to the question, “Would the County of Los Angeles have taken the same adverse employment action(s) against D’Andre Lampkin anyway, at the same time(s), for legitimate, independent reasons?” by saying “Yes.”
It awarded no damages, the only relief the deputy had sought. Nonetheless, Duffy Lewis said, in making the award:
“Mr. Lampkin and his lawyers were the prevailing parties…even though the award was not one would normally think. That still leaves us in a position where attorney fees are warranted.”
Zukin’s Decision
Zukin pointed out:
“Lampkin cites no case in any context where a plaintiff who failed to obtain any relief was considered successful in the action.”
She declared.
“We hold an employee’s action is not successful if the defendant employer has established the same-decision defense and the plaintiff obtains no relief.”
Supreme Court Decision
Duffy-Lewis, in making the award, cited the 2013 California Supreme Court decision in Harris v. City of Santa Monica. Justice Goodwin H. Liu wrote for a unanimous court in saying that “when a plaintiff has proven unlawful discrimination” under the Fair Employment and Housing Act {(“FEHA”), “the plaintiff may be eligible for ‘reasonable attorney’s fees and costs,’ ” even where no damages are awarded because the defendant has succeeded on a same-decision defense.
As Duffy-Lewis summed up Harris:
“[T]he jury found that the employer discriminated against the plaintiff but determined that ‘the same action would have occurred’ and therefore awarded no damages to the plaintiff. While this ‘same decision/mixed motive’ verdict precluding any award of damages to the plaintiff, plaintiff was still the prevailing party on the issue of liability and, thus, entitled to (at least) discretionary attorney fees, injunctive or declaratory relief. Thus, the prevailing party. While HARRIS is a discrimination case, there is no reason not to extend the same reasoning to a Retaliation matter.”
The appellant’s opening brief, signed by Calvin House of the Pasadena firm of Gutierrez, Preciado & House, LLP, comments:
“This misstatement of the facts of Harris reflects the trial court’s misunderstanding of the decision. In fact, the jury had found for Harris and awarded her $177,905 in damages….That result was vacated and remanded, because the trial court gave an erroneous jury instruction, and refused to allow the defendant to assert the same decision defense.”
Zukin Distinguishes Harris
Zukin agreed that “Harris did not involve a procedural situation like this one,” saying:
“The Court did not face a scenario like this one, in which the plaintiff failed to obtain any relief and nevertheless recovered attorney’s fees.”
She pointed to various differences between whistleblower-retaliations actions and those brought under the FEHA, and said that “Harris itself warns against analogizing FEHA to section 1102.6.”
Liu said in Harris that §1102.6 requires that a same-decision defense be established by clear and convincing evidence and remarked:
“[T]he inclusion of the clear and convincing evidence language in one statute does not suggest that the Legislature intended the same standard to apply to other statutes implicating the same-decision defense.”
Zukin commented:
“We leave it to the Legislature to decide whether the law governing attorney’s fees in whistleblower cases should be the same as the law governing fees in FEHA cases, and to amend the relevant statutory provisions should they so decide.”
Her opinion directs that the Superior Court “enter a new judgment in favor of the County.”
The case is Lampkin v. County of Los Angeles. 2025 S.O.S. 1976.
Joining House in representing the county were Nohemi Gutierrez Ferguson and Clifton A. Baker. West Los Angeles attorney Leila Al Faiz was Lampkin’s lawyer on appeal.
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