Herron v. County of L.A. CA2/7 ( 2021 )

Filed 12/8/21 Herron v. County of L.A. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAMES HERRON, B295184
Appellant,
(Los Angeles County
Super. Ct. No. BC659323)
v.
COUNTY OF LOS ANGELES,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Affirmed in part and
reversed in part.
Lucien Law Group and Darryl M. Lucien, Pine Tillett Pine
and Norman Pine, Law Office of Maximilian Lee and Maximilian
Lee, for Appellant.
Collins Collins Muir & Stewart, Tomas A. Guterres and
Christian E. Foy Nagy, for Respondent.
______________________
INTRODUCTION
James Herron sued the County of Los Angeles for five causes
of action and over $2 million in damages. A jury found for Herron
on only two claims and awarded him a total of $200,000. Herron
moved for over $2.1 million in attorney fees and $121,000 in costs
from the County under Government Code section 12965,
subdivision (b) (section 12965(b)). The court awarded Herron
$320,000 in attorney fees and $28,472.58 in costs, and Herron
appealed.
We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties and the Trial
Herron was a temporary union employee for the County,
working as a plumber. After he injured his arm on the job, he was
released back to the union. Herron sued the County, alleging five
causes of action: disability discrimination, failure to engage in the
interactive process, failure to accommodate, failure to prevent
disability discrimination and violation of the California Family
Rights Act.
The matter proceeded to a bifurcated trial. During the
liability phase, the jury found in favor of Herron on the disability
discrimination and failure to prevent discrimination claims and in
favor of the County on the remaining three claims. During the
damages phase, Herron sought over $2 million in damages, but the
jury awarded Herron $200,000: $180,000 for past economic loss
and $20,000 for past non-economic loss.
The Motion for Attorney Fees and Motion To Tax Costs
Herron moved for attorney fees and costs under section
12965(b). Herron’s attorneys, Darryl Lucien and Maximilian Lee,
claimed that they worked 1635.7 and 232 hours, respectively, that
2
Lucien’s hourly rate was $600 and Lee’s hourly rate was $400 and
that their combined lodestar amount was $1,074,220. They
requested a multiplier of 2.0, bringing their total attorney fee
request to $2,148,440. In his motion, Herron argued a multiplier
was necessary given the novel issue presented (whether a
temporary union hire for the County was considered an employee
under the California Fair Employment and Housing Act (FEHA)),
the skill displayed by his counsel, the employment opportunities
his counsel had to forgo, the contingent nature of the fee award
and the degree of success Herron achieved. Herron also requested
$121,465.58 in costs, including expert fees. Herron supported his
motion with a 20-page declaration by Lucien, a declaration by Lee
and two declarations by plaintiff’s employment attorneys, Genie
Harrison and V. James DeSimone.1
In his declaration, Lucien said he worked as a certified law
clerk for the Los Angeles County District Attorney’s Office while in
law school and conducted about 120 preliminary hearings and one
misdemeanor trial. He joined the California Bar in 2004 and has
tried 15 jury trials since. He has spoken at various legal seminars.
He was approved for an hourly rate of $467 in a court award of
attorney fees in a prior case. He increased his hourly rate to $600
after 14 years of practice based on his familiarity with the
prevailing hourly rate in the community for work of a similar
nature and complexity and based on independent research.
Regarding the number of hours spent on the case, Lucien
said the case included 16 witness depositions, five expert
depositions, 2,100 pages of deposition testimony, over 2,600 pages
1 Herron does not explicitly reference or appear to rely on the
declarations by Lee, Harrison and DeSimone in his appellate
briefs.
3
of documents, 1,500 emails and 11 ex parte motions. Additionally,
he contended it was difficult for Herron to disprove certain
defenses asserted by the County according to a focus group poll.
Further, Lucien said the County’s defense tactics drove up the
time and cost of the litigation. Specifically, he said one of the
County’s attorneys, Ryan Chuman, produced the wrong witness
for a deposition, objected throughout a deposition, instructed a
witness not to answer questions in a deposition, took breaks
during depositions, “coach[ed]” deponents on how to answer
questions, unilaterally ended a deposition when a witness changed
an answer and refused to produce necessary documents. Lucien
also said Chuman objected to depositions that Herron requested
and refused to produce the deponents until the discovery cut-off
date.
Regarding the request for a multiplier, Lucien said it was
necessary to compensate for the contingent risk of the case and the
amount of time he and Lee waited for compensation. Lucien also
said he displayed a high level of skill and achieved “a complete
vindication of Mr. Herron’s civil rights,” which he said was an
“exceptional result.” Plus, Lucien explained the trial court told
counsel that the court estimated that Herron had a 50 percent
chance of winning. Additionally, Lucien said he and Lee are “true
solo litigators who do not have any support staff” to assist them;
they had to turn away other potential clients. Lucien also said he
proved the County had a “longstanding practice of discriminating
against the disabled by terminating their employment, refusing to
provide reasonable accommodations to temporary union hire
employees, and refusing to engage in the interactive process.”
The County opposed the motion, arguing that Herron was
not the prevailing party and that the lodestar amount was
unreasonable because Lucien’s and Lee’s hourly rates were
4
insufficiently supported and because their billings were inflated
due to duplicative work and delays. Specifically, the County
sought to reduce billings associated with duplicative depositions,
unsuccessful motions to compel and ex parte motions and
communications between counsel. The County challenged Lucien’s
hourly rate and argued that even if the court decided awarding
fees was appropriate, Lucien should be awarded for no more than
800 hours at $400 an hour, with a downward multiplier of .5,
making the total recovery $190,000 for Lucien and Lee. The
County also argued that Herron’s limited success warranted a
downward multiplier. Plus, the County filed a motion to tax
$113,596.70 in costs for Herron’s allegedly excessive court filings,
video depositions, duplicative depositions, expert fees, jury
consultant fees and audio-visual technology.
The County submitted a 16-page declaration by Chuman,
saying the case was overlitigated due to excessive and meritless
motions and repetitive and duplicative depositions.
Regarding motions, Chuman said Herron brought eight ex
parte motions, but only one was successful. One motion was taken
off calendar because Lucien had failed to meet and confer properly,
and another was denied for failure to show good cause or an
emergency existed. For two motions, Lucien had provided a large
volume of documents to the court without any direction as to
where the court could find evidence that good cause existed within
the exhibits. Three ex parte appearances were noticed and
canceled the morning of the hearing, one just 20 minutes before
the hearing.
Regarding depositions, Chuman said the case was delayed
because Lucien waited over five months after he knew about a
percipient witness to notice the first percipient witness deposition.
Lucien asked repetitive questions during depositions. Lucien’s
5
inflexibility and unwillingness to accommodate witnesses made
certain depositions longer than necessary. Four depositions took
longer than one day to complete. For example, Deputy Esmeralda
Lopez testified that she had no personal knowledge of the reasons
behind Herron’s release and that she never worked with or knew
Herron. But Lucien still spent two days deposing her. Lucien
asked Lopez twice to “review a binder filled with over 300
documents to see if she could identify if one document that was
previously produced was within that production.” Lucien was
frustrated when Lopez provided the same response, and he
suspended the deposition after an hour and a half and scheduled
another day for deposition. Another example was when Herron’s
deposition notice for the person most knowledgeable regarding the
County’s Responses to Special Interrogatories Set One did not
identify what issues he intended to cover with the witness.
Chuman brought Craig Castanon, a “key witness.” But Lucien
said he wanted somebody who “could testify as to how Deputy
Esmeralda Lopez acquired information to respond to Plaintiff’s
Special Interrogatories (Set l) as opposed to an individual, such as
Craig Castanon, who could testify as to the factual substance of
the responses.” Instead of deposing Castanon, Herron suspended
the deposition and postponed the deposition of another “person
most knowledgeable” the following day. Chuman offered several
dates to reschedule both, but none were acceptable to Lucien.
Chuman proposed another set of dates and did not receive a
response from Lucien.
According to Chuman, Lucien did not try to resolve discovery
disputes. Chuman said Lucien unilaterally set deposition dates.
When the County objected because the witnesses were not
available during the requested times, and the County offered
alternative dates, Lucien said he would move ex parte to compel
6
attendance at depositions. Lucien was unwilling to provide dates
for Herron’s deposition, forcing Chuman to file an ex parte motion,
which the court granted.
The Hearing
During the motion hearing, the trial court questioned
Lucien’s requested hourly rate. Lucien acknowledged that no
judge had approved his requested $600 hourly rate. The court
explained it has “reviewed probably a hundred plus attorney’s fee
motions,” and it usually sees Lucien’s requested rate from lawyers
at “the fairly big firms, perhaps different law schools, order of the
coif, editor of law reviews, clerk for a federal judge, that kind of
resume, which [the court] [does not] see here.” The court noted,
“I’m very sensitive to hourly rates that are selected by counsel
when [they] don’t have that kind of background and really no
empirical data to support it.” The court said in its experience,
attorneys “who went to Harvard or Yale typically are paid at a
much higher level” than those who went to other law schools
because “it reflects, perhaps, an intelligence level beyond this
court’s intelligence level and a dedication and a drive and a
capability that [the court] [does not] otherwise see with some other
lawyers.” The court concluded that “background, experience,
number of years, approval by judges of those hourly rates, et
cetera” are all “factors that [the] court has in mind.”
Then, the court addressed the request for a multiplier,
asking whether “a multiplier is only for cases of exceptional result
or novel or complex issues?” Lucien explained that there are more
factors the court must consider, including “the fact that the
attorneys will not get paid for their work and the delay in
payment.” The court noted, “here, there was no exceptional
7
result,” since the damages award was only 10 percent of what
Herron asked for.
Next, the court addressed the total number of hours claimed,
saying, “One of the things that struck me throughout the time
period that this case was pending is that it was overlitigated.” The
court noted that Herron filed ex parte motions “on discovery issues
that [the court] thought should have been properly resolved
between a respectful and professional counsel.” The court
reiterated its belief that “a lot of the hours expended here and
efforts that [Herron] put in, [were] as if this was some sort of a
federal class action lawsuit involving multiple parties and players,
it was just, to sum it up, . . . overly litigated.”
The court explained, “I think there were unnecessary
depositions. There are multiple dates of depositions. There was
unnecessary ex parte litigation. . . . This is a fairly
straightforward wrongful termination case. . . . Rarely have I seen
a case litigated to this extent.” Specifically, the court noted,
“There seems to have been a number of examples in the record of
[Herron’s attorneys] coming close to badgering witnesses when
witnesses did not respond in the fashion that you believed that
they should respond.” The court, “[h]aving presided over
thousands of cases over 20 years,” noted that “it’s very rare and
generally unnecessary to have a deposition go longer than the
statutory time limit or more than one day.”
Finally, the court addressed the request for expert fees,
saying, “[t]he experts were not court ordered[,] [s]o the expert
witness fees are likely to be taxed.” The court asked, “Doesn’t the
Code [of Civil Procedure] say [the experts] have to be experts
ordered by the order?” Herron answered that the court has
discretion to award expert fees in this case under section 12965(b).
The Court replied, “So that’s––This court has to make a
8
determination––in other words, you don’t get it as a matter of
right. This court has to exercise its independent judgment, having
presided over the case, as to whether or not those expert’s fees
were reasonable and necessary. We agree on that, apparently.”
The Court’s Order
The court filed its order one week after the hearing. The
court awarded Herron $320,000 in attorney fees and $28,472.58 in
costs.
The court began by explaining it “seriously considered
whether to award attorneys fees at all to plaintiff. . . . This is not
only because plaintiff prevailed on only two claims and received
just about 10 percent of the amount he sought from the jury, but
because plaintiff’s counsel grossly over-litigated this case prior to
trial.” The court found Chuman’s declaration “accurately
summarizes plaintiff’s counsel’s actions with respect to discovery
abuses, including deposition conduct and unnecessary delays.”
The court wrote, “having presided over multiple unnecessary
discovery disputes, the Court [gave] little weight to Lucien’s
version of events.” The court noted Herron’s counsel “waited some
nine months after the case was filed to even notice the depositions
of defendant’s five key witnesses, and this was only after
defendant had filed a motion for summary judgment.” The court
also noted Herron’s counsel “brought eight ex parte applications,
seven of which were entirely denied and one which was mostly
denied.” The court also found “[t]he excessive nature of the
attorneys’ fee demand also reflects adversely on the credibility of
plaintiff’s counsel’s claims.”
The court approved Lee’s requested rate of $400 per hour.
But the court reduced Lucien’s rate from $600 to $500 because
attorneys with similar backgrounds and trial experience had been
9
approved for $400-$550 per hour and because of Lucien’s pretrial
and trial skills. Specifically, the court noted “no judge has ever
approved this [$600] rate” for Lucien. The court drew on its
experience reviewing over 100 fee motions over 15 years, which
made the court familiar with the reasonable hourly rates of
attorneys, ranging from solo practitioners to those from national
law firms. The court also noted it had “seen and approved hourly
rates of $400-550 for attorneys with Lucien’s background and trial
experience.” The court found, “Given Lucien’s pre-trial and trial
skills . . . a rate of $500/hour is reasonable.”
Then, the court reduced the hours from 2076 to 700 because
the court found that Herron achieved limited success, overlitigated
the case before trial and padded the hours. Specifically, the court
commented the requested hours are “grossly excessive for this
relatively straightforward employment case.” The court explained
its view that the hours were excessive by comparing Herron’s case
to a recent employment case the court presided over that was
“much more difficult,” where the jury awarded a $1.8 million
verdict. There, the lead attorney, who was “one of the most
experienced, well-known and successful in California,” only billed
228 hours, with the junior attorney billing 584 hours, for a total of
812. The court found, “[A] reasonable number of hours for lead
attorney Lucien should be no more than 400, and for the second
chair Lee, 300.”
Next, the court denied Herron’s request for an upward
multiplier because it found the case was not difficult or complex,
the amount at issue was modest, the jury award was at the low
end of verdicts and the attorney’s rates compensated them for
their contingency risk and skill. Specifically, the court explained,
“Plaintiff has not carried his burden.” “This was a run-of-the-mill
10
employment case2 which had no difficult or complex issues. . . .
Further, the amount at issue was modest when compared to other
employment cases over which this Court has presided. Plaintiff’s
lawyers were competent, but not highly skilled. And the result
obtained was also at the low end of jury verdicts in Los Angeles.
Finally, the market rate of plaintiff’s attorneys adequately
compensates for their contingency risk and skill.” The court also
denied the County’s request for a downward multiplier.
2 Before the closing argument on liability and outside the
presence of the jury, the court said, “The very narrow issue of
whether somebody hired as a union hall temporary employee was
entitled to accommodations, interactive process and leave. I think
that’s a very interesting narrow question. [¶] And I can see why
the County has vigorously defended this, because it probably has
very broad public policy implications for maybe hundreds, if not
thousands of hires.” The court also said, “I think this may be a
case of first impression, whether or not a union temp such as Mr.
Herron is an employee.”
However, the court changed its mind over three months,
during which it presided over the damages trial, jury instructions,
closing arguments and jury verdicts on both liability and damages
and briefing on the motion for attorney fees. During the hearing
on the motion for attorney fees, the court admonished Herron for
attempting to frame his case as having broad policy implications.
When Herron tried to frame the case as being about “the Los
Angeles County pattern and practice, and their policy of not
providing reasonable accommodations [or] interactive process,” the
trial court interrupted and explained, “Actually, it wasn’t at all.
And [the court] admonished you in front of the jury when you
attempted to expand the nature of this litigation beyond your
clients to some policy and to send a message, et cetera. This case
was about one individual who alleged he was wrongfully
terminated. [The court] cannot agree with your characterization.”
11
Finally, the court reduced Herron’s requested costs from
over $121,000 to $28,472.58. Among the costs cut, the court
denied Herron’s request for expert fees. Specifically, “[P]laintiff is
not entitled to be reimbursed for experts not ordered by the court .
. . . The trial court also has the discretion to disallow costs for
items which are only a convenience or beneficial, as opposed to
necessary, for trial preparation.” The court denied “expert witness
costs in the amount of $34,325.”
DISCUSSION
Herron argues the trial court abused its discretion by
reducing Lucien’s hourly rate to calculate the lodestar, by reducing
the total attorney hours to calculate the lodestar, by not applying
an upward multiplier to the lodestar and by not awarding expert
costs.
We agree with Herron on expert costs but disagree with him
on attorney fees.
Section 12965(b)
FEHA, governed by Government Code section 12900 et seq.,
was enacted to “safeguard the rights of all persons to seek, obtain,
and hold employment without discrimination on account of various
characteristics, which now include race, religion, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, and sexual orientation.”
(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984
(Chavez).)
Under section 12965(b), a party may bring a civil action for
damages resulting from violations of FEHA and seek attorney fees
and costs: “In civil actions brought under this section, the court, in
its discretion, may award to the prevailing party, including the
department, reasonable attorney’s fees and costs, including expert
12
witness fees.” This statute creates an asymmetrical standard for
awarding fees and costs: While “a prevailing plaintiff should
ordinarily receive his or her costs and attorney fees unless special
circumstances would render such an award unjust[,] . . . [a]
prevailing defendant, however, should not be awarded fees and
costs unless the court finds the action was objectively without
foundation when brought, or the plaintiff continued to litigate
after it clearly became so.” (Williams v. Chino Valley Independent
Fire Dist. (2015) 61 Cal.4th 97, 105 (Williams), italics and citation
omitted.)
1. Attorney Fees
“In deciding whether to, and how to, award fees under
[Government Code] section 12965, subdivision (b), courts will look
to the rules set forth in cases interpreting [Code of Civil
Procedure] section 1021.5.” (Chavez, supra, 47 Cal.4th at p. 985.)
“Under Code of Civil Procedure section 1021.5, if a court
determines that attorney fees should be awarded, computation of
those fees is based on the lodestar adjustment method as set forth
in Serrano v. Priest (1977) 20 Cal.3d 25 [(Serrano)].” (Ibid.) The
lodestar is determined by multiplying a reasonable rate for each
attorney by a reasonable number of hours worked by that
attorney. (Ibid.) The lodestar may then be “adjusted upward or
downward” with an optional multiplier. (Ibid.)
The moving party bears the burden “to persuade the trial
court the work was reasonably necessary, both as to the particular
tasks performed and the amount of time devoted to them.” (Baxter
v. Bock (2016) 247 Cal.App.4th 775, 793 (Baxter); see Roth v.
Plikaytis (2017) 15 Cal.App.5th 283, 290 [explaining the party
seeking attorney fees “‘“bear[s] the burden of establishing
entitlement to an award and documenting the appropriate hours
13
expended and hourly rates”’”].) On the other hand, “[i]n
challenging attorney fees as excessive because too many hours of
work are claimed, it is the burden of the challenging party to point
to the specific items challenged, with a sufficient argument and
citations to the evidence. General arguments that fees claimed are
excessive, duplicative, or unrelated do not suffice.” (Premier
Medical Management Systems, Inc. v. California Ins. Guarantee
Assn. (2008) 163 Cal.App.4th 550, 564.)
“In FEHA actions, attorney fee awards, which make it easier
for plaintiffs of limited means to pursue meritorious claims
[citation], ‘are intended to provide “fair compensation to the
attorneys involved in the litigation at hand and encourage [ ]
litigation of claims that in the public interest merit litigation.”’”
(Chavez, supra, 47 Cal.4th at p. 984.) However, “the ultimate goal
is ‘to determine a “reasonable” attorney fee, and not to encourage
unnecessary litigation of claims that serve no public purpose
either because they have no broad public impact or because they
are factually or legally weak.’” (Id. at p. 985.)
2. Costs
Under Civil Code section 1032, subdivision (b), “a prevailing
party is entitled as a matter of right to recover costs in any action
or proceeding,” unless specified otherwise by statute.
Under Government Code section 12965, subdivision (b), a
trial court has the discretion to award the prevailing party
reasonable costs, including expert witness fees. But a prevailing
defendant “shall not be awarded fees and costs unless the court
finds the action was frivolous, unreasonable, or groundless when
brought, or the plaintiff continued to litigate after it clearly
became so.” “By making a cost award discretionary rather than
mandatory, Government Code section 12965 expressly excepts
14
FEHA actions from Code of Civil Procedure section 1032’s
mandate for a cost award to the prevailing party.” (Williams,
supra, 61 Cal.4th at p. 114.) “‘[T]rial courts have a duty to
determine whether a cost is reasonable in need and amount.’”
(Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380 (Acosta).)
Because the court has discretion to award or deny costs in a
FEHA case, a prevailing party must move for costs just as it would
attorney fees. (See Anthony v. City of Los Angeles (2008) 166
Cal.App.4th 1011, 1016.)
Standard of Review
1. Attorney Fees
We review an attorney fee award for abuse of discretion.
(Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) In
reviewing the award, we are guided by well-established principles.
“[T]he awarding of attorney fees and the calculation of attorney fee
enhancements are highly fact specific matters best left to the
discretion of the trial court.” (Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553, 581.) “The ‘“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.”’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133
(Ketchum).) “An appellate court will interfere with the trial court’s
determination of the amount of reasonable attorney fees only
where there has been a manifest abuse of discretion.”3
3 Herron claims the abuse of discretion standard applicable in
an attorney fee appeal requires stricter scrutiny than the normal
abuse of discretion standard based on a sentence in Horsford v.
Board of Trustees of California State University (2005) 132
15
(Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th
972, 1004 (Heritage).)
“We review any factual findings by the trial court in
connection with the ruling under the substantial evidence
standard.” (Sweetwater Union High School Dist. v. Julian Union
Elementary School Dist. (2019) 36 Cal.App.5th 970, 981.)
2. Costs
“Whether a cost item was reasonably necessary to the
litigation presents a question of fact for the trial court and its
decision is reviewed for abuse of discretion.” (Acosta, supra, 129
Cal.App.4th at p. 1380.) “‘Absent an explicit statement by the trial
court to the contrary, it is presumed the court properly exercised
its legal duty.’” (Ibid.)
Whether a court applied the proper criteria for a cost award
is a question of law reviewed de novo: “‘“[D]e novo review of such a
trial court order is warranted where the determination of whether
the criteria for an award of . . . costs in this context have been
satisfied amounts to statutory construction and a question of
law.”’” (Mountain Air Enterprises, LLC v. Sundowner Towers,
LLC (2017) 3 Cal.5th 744, 751.)
Cal.App.4th 359, 393 (Horsford): “[A] reasoned decision based on
the reasonable view of the scope of discretion is still an abuse of
judicial discretion when it starts from a mistaken premise.” But
Horsford did not increase the scrutiny of attorney fee orders.
Horsford merely stated the abuse of discretion standard in a
different way. (See Chavez, supra, 47 Cal.4th at p. 989 [reviewing
trial court’s decision denying attorney fees in FEHA action for
abuse of discretion].)
16
The Trial Court Did Not Abuse Its Discretion in Calculating
the Attorney Fee Award
1. Rate
a. The trial court did not err in determining a
reasonable rate for Lucien
The reasonable hourly rate of an attorney depends on
several factors, including “the level of skill necessary, time
limitations, the amount to be obtained in the litigation, the
attorney’s reputation, and the undesirability of the case.”
(Ketchum, supra, 24 Cal.4th at p. 1139.) “The court may rely on
its own knowledge and familiarity with the legal market in setting
a reasonable hourly rate.” (Heritage, supra, 215 Cal.App.4th at
p. 1009.)
The trial court found “a rate of $500/hour is reasonable” for
Lucien. The court reduced Lucien’s rate from the $600 he
requested because of his “pre-trial and trial skills” and because the
court had “seen and approved hourly rates of $400-550 for
attorneys with Lucien’s background and trial experience.” In
determining $500 per hour was a reasonable rate for Lucien, the
court noted, “no judge has ever approved [Lucien’s $600] rate.”
The court reviewed Lucien’s education, trial experience, practice
and accomplishments. The court explained, “Lucien is a sole
practitioner,” “[h]e graduated from Glendale University College in
2002,” he has tried “one misdemeanor trial while a clerk with the
District Attorney’s office and 15 civil trials,” and “[h]e has spoken
at three CLE seminars.” The court compared Lucien’s background
and trial experience against that of other attorneys in the legal
market. The court knew the legal market because it had reviewed
over 100 fee motions in over 15 years, from solo practitioners to
those working at national law firms. The court saw Lucien’s
pretrial and trial skills when the court presided over the case.
17
The factors the court relied on were proper. (See, e.g.,
Stratton v. Beck (2017) 9 Cal.App.5th 483, 496 [finding no abuse of
discretion in court setting attorney’s hourly rate based on
comparison of rates from similarly experienced attorneys in same
field and area]; Children’s Hospital & Medical Center v. Bonta
(2002) 97 Cal.App.4th 740, 783 [affirming award where “the hourly
rates allowed by the trial court are within the range of reasonable
rates charged by and judicially awarded comparable attorneys for
comparable work”].)
b. Herron’s argument to the contrary is
unpersuasive
Herron argues the trial court reduced Lucien’s hourly rate
based on his intelligence level and dedication because at the
hearing, the court said, in its experience, attorneys “who went to
Harvard or Yale typically are paid at a much higher level” than
those who went to other law schools, because “it reflects, perhaps,
an intelligence level beyond this court’s intelligence level and a
dedication and a drive and a capability that [the court] [does not]
otherwise see with some other lawyers.” But Herron takes the
court’s comment out of context. The court was comparing Lucien’s
background and experience with other attorneys in the legal
market as it was allowed to do. The court explained,
“[B]ackground, experience, number of years, approval by judges of
those hourly rates, et cetera. All of those are factors that this
court has in mind.”
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2. Hours
a. The trial court did not err in determining a
reasonable number of hours for Herron’s
attorneys
“[A]bsent circumstances rendering the award unjust, an
attorney fee award should ordinarily include compensation for all
the hours reasonably spent, including those relating solely to the
fee.” (Ketchum, supra, 24 Cal.4th at p. 1133.) “‘Reasonably spent’
means that time spent ‘in the form of inefficient or duplicative
efforts is not subject to compensation.’” (Horsford, supra, 132
Cal.App.4th at p. 394.)
The trial court found “a reasonable number of hours for lead
attorney Lucien should be no more than 400, and for second chair
Lee, 300.” The court reduced the total hours to 700 from the 2,076
Herron’s counsel requested because the court found that Herron
“grossly over-litigated this case prior to trial,” that “the bills were
padded,” and that Herron achieved limited success.
First, overlitigation or “‘“padding” in the form of inefficient
or duplicative efforts is not subject to compensation.’” (Ketchum,
supra, 24 Cal.4th at p. 1132.) The trial court’s finding that Herron
overlitigated the case is supported by substantial evidence,
including the declaration by Chuman and the court’s observations
from presiding over the case. In his declaration, Chuman said
that almost all of Herron’s ex parte motions were meritless, that
some of Herron’s depositions were unnecessary and long and that
Herron did not try to resolve discovery disputes. The court agreed
with Chuman: “Chuman accurately summarized plaintiff’s
counsel’s actions with respect to discovery abuses, including
deposition conduct and unnecessary delays.” The court gave “little
weight to Lucien’s version of the facts” because it had “presided
over multiple unnecessary disputes.” According to the court,
19
Herron’s “counsel brought eight ex parte applications, seven of
which were entirely denied and one which was mostly denied.”
Herron claims he received relief on four of his eight ex parte
applications. By our calculation based on the appellate record,
Herron filed six ex parte applications, with only one application
granted and another granted in part. But no matter what, the
trial court’s point still stands: Herron filed several meritless ex
parte motions.
Although the trial court awarded Herron attorney fees for
fewer hours than requested, we do not find the court abused its
discretion based on the record before us. Having presided over the
entire case, including discovery disputes, the experienced court
was well-positioned to determine if Herron’s attorneys
overlitigated or padded their hours. (See Baxter, supra, 247
Cal.App.4th at p. 794 [“The experienced trial judge, who presided
over the entire proceeding, was able to observe the parties’ tactics
and evaluate the appropriate amount of time and effort required.
While we recognize the court awarded compensation for
considerably less time than was actually expended, we are not in a
position to second-guess its determination of reasonable necessity,
let alone to declare its judgment ‘clearly wrong’ [citation] or
beyond ‘the bounds of reason.’”].)
Second, “[a] fee request that appears unreasonably inflated
is a special circumstance permitting the trial court to reduce the
award or deny one altogether.” (Serrano v. Unruh (1982) 32
Cal.3d 621, 635 (Serrano II).) The trial court was in the best
position to determine if Herron’s requested hours were inflated.
(See Baxter, supra, 247 Cal.App.4th at p. 794.) The court
explained that it had experience reviewing over 100 fee motions in
more than 15 years and that the hours claimed by Herron were
20
“grossly excessive for this relatively straightforward employment
case.”
Finally, a court can reduce an attorney fee award if a
prevailing party obtained limited success under Hensley v.
Eckerhart (1983) 461 U.S. 424, 436, superseded, in part on other
grounds, by the Prison Litigation Reform Act (Hensley).4 (See also
Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 248
[explaining “the degree or extent of appellants’ success in
obtaining the results which they sought must be taken into
consideration in determining the extent of attorney fees which it
would be reasonable for them to recover”].) In cases involving
limited success, California courts have adopted a two-step
framework. (Environmental Protection Information Center v.
Department of Forestry & Fire Protection (2010) 190 Cal.App.4th
217, 238 (Environmental Protection).)
In the first step, a court must answer the question: Did “the
plaintiff fail to prevail on claims that were unrelated to the claims
on which he succeeded?” (Hensley, supra, 461 U.S. at p. 434.)
Claims are related if their attorney fees are intertwined. (See
Harman v. City and County of San Francisco (2007) 158
Cal.App.4th 407, 424 [“Where the court considered the
fees intertwined, the successful and unsuccessful claims were
found related, as Hensley directs.”].)
If the successful and unsuccessful claims are related, in the
second step, the court must answer the question: “[D]id the
plaintiff achieve a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee award?”
4 In interpreting and applying FEHA’s attorney fee provisions,
California courts have looked to federal decisions involving Title
VII fees for guidance. (See Chavez, supra, 47 Cal.4th at p. 985.)
21
(Hensley, supra, 461 U.S. at p. 434.) In the second step, the court
“focus[es] on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the
litigation.” (Ibid.) In a case of limited success, “the product of
hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount.” (Id. at
p. 436.) The court’s calculation “may attempt to identify specific
hours that should be eliminated, or it may simply reduce the
award to account for the limited success.” (Id. at pp. 436-437.)
Here, the court applied both steps of the Hensley test
correctly. For the first step, it is uncontroverted that Herron’s
successful and unsuccessful claims are related. For the second
step, in its order, the court found Herron did not achieve a level of
success that justified the requested hours. The court noted Herron
“prevailed on only two claims,” “received just about 10% of the
amount he sought,” and “the result obtained was also at the low
end of jury verdicts in Los Angeles.” Plus, it appears Herron did
not obtain any of the injunctive relief he sought, which included
being reinstated to his prior position, requiring supervisors to
undergo training relating to the treatment of disabled employees,
and requiring the County to enforce policies in a non-
discriminatory fashion. (Environmental Protection, supra, 190
Cal.App.4th at p. 238 [“The trial court may reduce the amount of
the fee award ‘where a prevailing party plaintiff is actually
unsuccessful with regard to certain objectives of its lawsuit.’”].) As
the court said during the hearing, “Here, there was no exceptional
result.”
22
b. Herron’s arguments to the contrary are
unpersuasive
Herron argues that public policy and the purpose of FEHA
cut against the trial court’s decision to reduce his attorney fee
award. But “under the FEHA, the ultimate goal is ‘to determine a
“reasonable” attorney fee, and not to encourage unnecessary
litigation of claims that serve no public purpose . . . because they
have no broad public impact.’” (Chavez, supra, 47 Cal.4th at
p. 990.) Herron cannot claim that his success on his two
discrimination claims “had any broad public impact or resulted in
significant benefit to anyone other than himself.” (Ibid.)
Herron claims, “Indeed, Mr. Herron’s trial success has
doubtless led the County to revisit its policy of denying employees
like Mr. Herron FEHA’s protections.” But he fails to substantiate
this argument with record citations or any explanation. (See
Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) He points to
the trial court’s comment that his case may have broad policy
implications. But he ignores that the court changed its mind
several months later after overseeing numerous court proceedings,
including the damages trial, jury instructions, closing arguments
and jury verdicts on liability and damages, and the briefings on
the motion for attorney fees. In fact, at the motion hearing, the
court disagreed with Herron’s characterization of the litigation as
a public policy case. In the court’s order, the court described the
case as a run-of-the-mill employment case.
Herron takes issue with the court’s consideration of the
damages recovered at trial.5 While it is true that “attorney fees
5 Herron also argued that he received almost all his damages:
“Even if Mr. Herron had succeeded on all five of his causes of
23
need not be strictly proportionate to the damages recovered”
(Chavez, supra, 47 Cal.4th at p. 989), courts have routinely
considered the total amount recovered in determining whether to
reduce attorney fees. In fact, the California Supreme Court in
Chavez affirmed a complete denial of attorney fees in a FEHA case
because the trial court found the requested hours were “grossly
inflated when considered in light of the single claim on which
plaintiff succeeded, the amount of damages awarded on that claim,
and the amount of time an attorney might reasonably expect to
spend in litigating such a claim.” (Id. at p. 991.) Here, the court
similarly found that the hours were “grossly excessive,” that
Herron succeeded on only two claims, that the jury awarded
Herron only 10 percent of the damages he sought and that only
700 of Herron’s 2,076 requested hours were reasonable.6
action, he would have at most received nominally, two weeks more
damages . . . . Hence, while it is true that Mr. Herron failed to
obtain relief in three of his five claims, this cannot be said to be
limited success because he nevertheless obtained complete relief
for his damages.” Not true. Herron asked the jury for more than
$2 million in damages, but it only awarded him $200,000.
6 Herron relies on Warren v. Kia Motors America, Inc. (2018)
30 Cal.App.5th 24, 37, where the court wrote, if “the reasons for
the [fee] reduction include tying the fee award to some proportion
of the buyer’s damages recovery, the court abuses its discretion.”
But the court prefaced this statement with, “when a trial court
applies a substantial negative multiplier to a presumptively
accurate lodestar attorney fee amount, the court must clearly
explain its case-specific reasons for the percentage reduction.”
(Ibid., italics added.) In this case, Herron’s attorney fee recovery
was reduced because the court had a different view as to how
many hours were reasonably incurred, not because it reduced the
final lodestar attorney fee amount by a percentage. Plus, the court
24
Herron complains about the trial court’s comments, which he
takes out of context. He argues because the court noted in its
order that precedent “mandates a substantial reduction” of the
attorney fee award, the court incorrectly believed it was required
to reduce the fees based on limited success. Not true.
Immediately after the quoted statement, the court acknowledged
its discretion to decide not just the amount of attorney fees, but
whether to award any at all, when it said, “this Court has
seriously considered whether to award attorney fees at all to
plaintiff.”
Herron also takes out of context a comment the court made
at the hearing: “Having presided over thousands of cases over 20
years, . . . it’s very rare and generally unnecessary to have a
deposition go longer than the statutory time limit or more than
one day.” As Herron points out, the statutory time limit for
depositions does not apply in employment cases. (Williams, supra,
61 Cal.4th at p. 113, fn. 3.) But the court was discussing its
concern about how long the depositions took to complete overall;
the court never said it was reducing Herron’s hours based on a
mistaken belief that a statutory time limit applied.
Herron argues that the County failed to adequately
challenge his time entries and that the court failed to adequately
explain its fee reduction. But the County met its burden. The
County’s motion argued that Herron’s ex parte motions and
conduct during discovery and depositions padded Herron’s fees.
The County identified delayed depositions and ex parte motions
and included a declaration by Chuman explaining the conduct in
detail with exhibits of email exchanges between the parties’
here did not reduce its fee award by making it proportionate to the
amount Herron recovered.
25
attorneys. Likewise, the court sufficiently explained its grounds
for reducing Herron’s attorney fees. A “court may attempt to
identify specific hours that should be eliminated, or it may simply
reduce the award to account for the limited success.” (Hensley,
supra, 461 U.S. at pp. 437-438, italics added.) And “[w]hen
confronted with hundreds of pages of legal bills, trial courts are
not required to identify each charge they find to be reasonable or
unreasonable, necessary or unnecessary. . . . A reduced award
might be fully justified by a general observation that an attorney
overlitigated a case or submitted a padded bill or that the opposing
party has stated valid objections.” (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 101.) In its order,
the court explained it reduced Herron’s hours because the court
found Herron achieved limited success, he overlitigated his case,
and the hours he requested were padded.
Herron also points out the County, in its opposition, stated
that Lucien should be awarded no more than 800 hours, which is
double the trial court’s award. First, such a statement does not
establish that the court abused its discretion because the court
itself is required to determine the number of hours reasonably
spent on the case. Second, the County did not concede Lucien
reasonably expended 800 hours on the case. The County
requested he be awarded no fees and fees for no more than 800
hours in the alternative. Third, Lucien would have received less
money if the court had awarded Herron fees following the County’s
recommendation. That is because the County also suggested that
Lucien’s hourly rate be set at $400 an hour and a downward
multiplier of 0.5 be applied, bringing Lucien’s attorney fee award
to $160,000, which is $40,000 less than what the trial court
awarded.
26
Finally, Herron argues the court failed to consider how the
court’s errors accounted for Herron’s limited success and
“needlessly complicated the litigation.” The errors he complains
about concern two jury instructions that were given and another
modified instruction that was not. But Herron never raised this
instructional error argument during the briefing on attorney fees
in the trial court. (In re Campbell (2017) 11 Cal.App.5th 742, 756
[“We will not address arguments raised for the first time on
appeal.”].) Even if the argument had been properly raised, Herron
fails to explain how these alleged errors led the court to abuse its
discretion during its fee award calculations.
3. Multiplier
a. The trial court did not abuse its discretion in
denying a multiplier
After the lodestar figure has been calculated, a trial court
may apply an optional upward multiplier to the lodestar figure
based on several factors. (Ketchum, supra, 24 Cal.4th at p. 1138.)
These factors include “(1) the novelty and difficulty of the
questions involved, (2) the skill displayed in presenting them, (3)
the extent to which the nature of the litigation precluded other
employment by the attorneys, (4) the contingent nature of the fee
award.” (Id. at p. 1132.) “[T]he trial court is not required to
include a fee enhancement to the basic lodestar figure for
contingent risk, exceptional skill, or other factors, although it
retains discretion to do so in the appropriate case; moreover, the
party seeking a fee enhancement bears the burden of proof.”
(Ibid.) “‘In reviewing a challenged award of attorney fees and
costs, we presume that the trial court considered all appropriate
factors in selecting a multiplier and applying it to the lodestar
figure. [Citation.] This is in keeping with the overall review
standard of abuse of discretion, which is found only where no
27
reasonable basis for the court’s action can be shown.’” (Taylor v.
Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249–
1250.)
The trial court denied Herron’s request for a multiplier
because Herron had “not carried his burden in this regard.” The
court found that Herron’s case was “a run-of-the-mill employment
case which had no difficult or complex issues,” that “the amount at
issue was modest when compared to other employment cases over
which th[e] Court has presided,” that “the result obtained was also
at the low end of jury verdicts in Los Angeles,” that Herron’s
“lawyers were competent, but not highly skilled” and that “the
market rate of plaintiff’s attorneys adequately compensates for
their contingency risk and skill.” These were reasonable bases for
denying the multiplier. (See Ketchum, supra, 24 Cal.4th at
pp. 1138-1139 [“Of course, the trial court is not required to include
a fee enhancement to the basic lodestar figure for contingent risk,
exceptional skill, or other factors, although it retains discretion to
do so in the appropriate case . . . . In each case, the trial court
should consider . . . the degree to which the relevant market
compensates for contingency risk, extraordinary skill, or other
factors under Serrano[ ]. We emphasize that when determining
the appropriate enhancement, a trial court should not consider
these factors to the extent they are already encompassed within
the lodestar.”].)
b. Herron’s arguments to the contrary are
unpersuasive
Herron argues the court erred in not applying a multiplier
because there is no extraordinary circumstance to warrant not
using a multiplier and because the court failed to adequately
account for the contingency risk. But “[a] fee request that appears
28
unreasonably inflated is a special circumstance permitting the
trial court to reduce the award or deny one altogether.” (Serrano
II, supra, 32 Cal.3d at p. 635.) The trial court determined the fee
request here was unreasonably inflated, meaning there was an
extraordinary circumstance to warrant denying the award entirely.
Plus, the court found the market rate for Herron’s attorneys
“adequately compensates for their contingency risk and skill.” As
a result, applying a multiplier would have been an “unfair double
counting” and “unreasonable.” (Ketchum, supra, 24 Cal.4th at
p. 1139.)
Herron also points out that during the hearing, the court
asked, “Isn’t it true that a multiplier is only for cases of
exceptional result or novel or complex issues,” to suggest the court
misunderstood the law as it relates to multipliers. But the court’s
order, citing Ketchum and reviewing the relevant factors for a
multiplier, dispels any concern that the court misunderstood the
applicable law.
Lastly, Herron relies on the court’s earlier comment that the
case may have broad policy implications. But he does not reconcile
that comment with the court’s later remarks after presiding over
more of the litigation. Specifically, the court found the case did
not involve broad policy implications but rather was a simple
employment case.
The Trial Court Erred in Denying Herron’s Request for
Expert Fees
It appears the trial court did not understand it had the
discretion to award Herron expert fees even if the expert was not
court ordered. In its order, the trial court denied Herron’s request
for expert fees because the “plaintiff is not entitled to be
reimbursed for experts not ordered by the court” and “[t]he trial
29
court also has the discretion to disallow costs for items which are
only a convenience or beneficial, as opposed to necessary, for trial
preparation.” The court was referencing and cited a case
concerning Code of Civil Procedure section 1033.5, subdivision
(b)(1), which limits reimbursement of expert fees awarded under
Code of Civil Procedure section 1032, subdivision (b), to fees for
experts ordered by the court or otherwise expressly authorized by
law. But Herron did not seek costs under the Code of Civil
Procedure, sections 1032 and 1033.5. Instead, he sought costs
under section 12965(b), which does not limit the reimbursement of
expert fees to experts ordered by the court.
That the trial court may have acknowledged its discretion
during oral argument is insufficient. During the hearing, the trial
court asked, “Doesn’t the Code [of Civil Procedure] say [the
experts] have to be experts ordered by the order?” Lucien
answered the court has discretion to award expert fees in this case
under section 12965(b). The court said, “This court has to exercise
its independent judgment, having presided over the case, as to
whether or not those expert’s fees were reasonable and necessary.
We agree on that, apparently.” But “‘a judge’s comments in oral
argument may never be used to impeach the final order, however
valuable to illustrate the court’s theory they might be under some
circumstances.’” (Silverado Modjeska Recreation & Park Dist. v.
County of Orange (2011) 197 Cal.App.4th 282, 300) This is
because “‘[a]n oral ruling is subject to varying memories and may
not be clear or specific. . . . A court may change its ruling until
such time as the ruling is reduced to writing and becomes the
[final] order of the court.’” (Ibid.)
The County argues Herron “has not shown but for the
application of . . . section 12965(b), he would certainly have been
awarded his expert witness fees” and has not shown how experts
30
improved his case. The County misses the point. The issue on
appeal is not whether Herron met his burden of introducing
sufficient evidence to justify being awarded expert fees. Instead,
the issue is whether the trial court understood it had the
discretion to award expert fees irrespective of whether the expert
was court ordered.
DISPOSITION
The attorney fee order under section 12965(b) is affirmed.
The cost award is reversed with directions to the trial court to
award any expert fees the court finds reasonable. Each party is to
bear its costs on appeal.
IBARRA, J.*
We concur:
PERLUSS, P. J.
FEUER, J.
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31