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‘Heightened Scrutiny’ Not Required in Deciding If Excessive Attorney Fees Were Claimed—C.A.
By a MetNews Staff Writer
A judge who applied a negative multiplier to the lodestar figure when calculating an attorney-fee award in a case implicating public-policy concerns was entitled to rely on her savvy as to when there is bill-padding, and she did not need to get into the nitty gritty of precisely where excessive fees were claimed, Div. Five of this district’s Court of Appeal has held in a 2-1 opinion.
The majority rejected the notion, expressed in a 2018 opinion of the Fourth District’s Div. Two, that “heightened scrutiny” of such awards is required.
Presiding Justice Brian M. Hoffstadt authored the majority opinion, in which Justice Dorothy C. Kim joined. Justice Lamar Baker dissented.
Hoffstadt’s opinion affirms a decision by Los Angeles Superior Court Judge Lia Martin in imposing a 30 percent across-the-board reduction in the fees sought by Michael Cash, a prevailing plaintiff in an action against Los Angeles County. He persuaded a jury that after he reported an instance of reverse-discrimination based on gender, he was subjected to a retaliatory termination of his employment as a captain in the county’s Fire Department, in violation of the Fair Employment and Housing Act (“FEHA”), Government Code §12940 et seq., as well as a whistleblowing provision of Labor Code §1102.5.
Both statutes provide for an award of attorney fees to a prevailing plaintiff.
1977 Decision
Hoffstadt pointed to the California Supreme Court’s 1977 decision in Serrano v. Priest in which it was held, quoting a 1970 Sixth U.S. Circuit Court of Appeals opinion, that “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”
The presiding justice said that in contravention of Serrano, “a handful of California courts have employed ‘heightened scrutiny’—imported from federal cases interpreting a federal civil rights statute (namely, 42 U.S.C. § 1988)—and on that basis have demanded that a trial court articulate” detailed reasons for employing a negative multiplier. This, he declared, is “fundamentally inconsistent with the deference that California courts have granted to trial courts as the percipient witnesses to the quality of representation and hence the amount of fees that representation justifies.”
He wrote:
“Under the traditional California standard, across-the-board, percentage-based reductions to a lodestar figure are appropriate so long as the trial court articulates a justifiable reason for the reduction.…Here, the trial court imposed the 30-percent reduction due to padding as a result of the attorneys’ excessive and duplicative billing. Overstaffing and excessive hours are justifiable reasons.
Fourth District Opinion
Hoffstadt addressed, in particular, two Court of Appeal decisions which the county and the dissenter relied upon in contending that Martin failed to support the award by her of $455,546 where $735,310 had been sought.
In its 2018 opinion in Warren v. Kia Motors America, Inc.—in which a fee request in an action under the Song-Beverly Consumer Warranty Act (the “lemon law” statute) was slashed based on the judge’s desire to bring the award down to the level of the damages—the Fourth District’s Div. Two said that it was “effectively” applying “heightened scrutiny” test which, it proclaimed, is “appropriate” in “consumer law cases, as in civil rights cases” where huge fee awards are sought.
It specified that the trial court “must clearly explain its reasons for choosing the particular negative multiplier that it chose; otherwise, the reviewing court is unable to determine that the court had valid, specific reasons for its across-the-board percentage reduction.”
Note was also made of the 2023 opinion by this district’s Div. Three in Snoeck v. ExakTime Innovations, Inc. That opinion does not reference the “heightened scrutiny” standard; it says that a fee request may be subjected to a negative multiplier based on persistent incivility on the part of the plaintiff’s counsel.
Hoffstadt’s Analysis
“[T]the genesis of the heightened scrutiny standard adopted in Warren and Snoeck,” Hoffstadt wrote, “is a desire to err on the side of overinclusive fee awards to incentivize lawyers to litigate federal civil rights cases; this rationale does not justify the spread of heightened scrutiny to every fee award for every employment, consumer protection, or other civil case arising in California.”
He continued:
“We read Warren and Snoeck as resting—not, as the dissent suggests, on any ‘core insight’ about the need for greater scrutiny of across-the-board, ‘meat cleaver’-esque reductions in fee awards—but rather as resting on the policy of encouraging greater fee awards in certain types of cases based on their substantive value.”
He added:
“Further, this heightened scrutiny, if applied faithfully, would all but eliminate any across-the-board percentage reductions because trial courts would be hard pressed to justify a ‘particular’ percentage—why 30 percent instead of 29 or 31 percent? Although the dissent disagrees with our concern on the ground that heightened scrutiny would not demand ‘a perfect correlation’ between the trial court’s concerns and the percentage reduction ‘down to the last decimal point,’ our concern derives from the requirement—set forth in the cases themselves—that the court must justify ‘the particular negative multiplier that it chose’ ”
Baker’s Dissent
Baker argued in his dissent that record in the case illustrates why specific findings should be required of a judge in applying a negative multiplier, saying that county made no effort to justify its call for a 30 percent reduction in fees, apparently simply relying upon a cut in that percentage having been affirmed in a 2019 published decision.
He charged that Martin “gave no clue” as to understanding just how much over-padding there had actually been, remarking that he had “no confidence” that she “had in mind any notion of what a 30 percent cut would mean in terms of the overall number of hours expended” and merely “threw up” her hands and accepted what the county said.
The dissenter added:
“Just as telling, the majority’s opinion opts not to undertake a defense of the trial court’s ruling by itself examining Cash’s billing statements and explaining why a 30 percent reduction achieves at least a modicum of proportionality. Instead, the majority rests solely on what it articulates as a ‘very deferential’ standard of review and says this court must affirm the trial court’s 30 percent across-the-board reduction simply because the court included a sentence in its order saying it thought there had been padding. Respectfully, that cannot be enough.”
The case is Cash v. County of Los Angeles, 2025 S.O.S. 1484.
Ronda D. Jamgotchian, Michael T. Campbell, and Daniel J. Ganz of Sheppard, Mullin, Richter & Hampton represented the county. Steven H. Haney, George M. Hill, and Natalie M. Contreras of the downtown Los Angeles firm of Haney & Shah acted for Cash.
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