Young v. Mountain Empire Unified School Dist. CA4/1 ( 2013 )

Filed 7/15/13 Young v. Mountain Empire Unified School Dist. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DIANE K. YOUNG, D061228
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2010-00065929-
CU-OE-EC)
MOUNTAIN EMPIRE UNIFIED SCHOOL
DISTRICT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joel R.
Wohlfeil, Judge. Affirmed as modified.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV for
Defendant and Appellant.
Law Office of David A. Miller and David A. Miller for Plaintiff and Respondent.
Mountain Empire Unified School District (MEUSD) appeals from an adverse
judgment after a bench trial in a lawsuit brought by former high school principal Diane
Young alleging that she was unlawfully demoted in retaliation for reporting sexual
harassment by MEUSD's former superintendent. MEUSD contends that (1) the trial
court's finding that MEUSD retaliated against Young in violation of the Fair Employment
and Housing Act (Govt. Code, § 12940 et seq.)1 (FEHA) is not supported by substantial
evidence; (2) the trial court abused its discretion by making a purportedly excessive
award of attorney fees to Young; and (3) the trial court should have awarded
postjudgment interest at the rate of 7 percent per annum instead of 10 percent. We
conclude that postjudgment interest should have been awarded at the rate of 7 percent per
annum, but that MEUSD's remaining arguments lack merit. We accordingly modify the
judgment to correct the postjudgment interest rate, and we affirm the judgment as
modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Young became the principal of Mountain Empire High School, which is a
part of MEUSD. Patrick Judd was the superintendent of MEUSD at the time.
According to Young, Judd made several crude and unwelcome sexual comments
and advances toward her in 2006 and 2007. Several other employees of MEUSD told
Young that they had been sexually harassed by Judd. In late 2007, Young contacted the
MEUSD school board about the sexual harassment that Judd had directed toward her and
the other employees. Young met with school board president Ken Northcote to explain
1 Unless otherwise indicated, all further statutory references are to the Government
Code.
2
her allegations against Judd. According to Young, Northcote told her that he had been
friends with Judd for many years.
As a result of Young's report, MEUSD conducted an investigation, including
retaining an investigator who interviewed Young in December 2007. Judd retired from
his position at MEUSD in March 2008, and he was replaced by a interim superintendent,
Donald Haught.
Steven Van Zant became MEUSD's permanent new superintendent in July 2008.
Young testified that she tried to inform Van Zant about the reason for Judd's departure,
but Van Zant cut her off and did not listen to her, which made her uncomfortable.
According to Young's testimony, she perceived an immediate negative attitude
from Van Zant toward her and believed that he was attempting to retaliate against her for
reporting Judd's harassment. Young stated that even before Van Zant officially took over
as superintendent, he started criticizing her performance by making negative comments
about the graduation ceremony, which she believed were unfounded. Early in the school
year, Van Zant criticized Young's handling of a football game, complaining that there
were not two ambulances on site, although, according to Young, it is the role of the
athletic director to arrange for the presence of ambulances and budgetary issues limited
ambulance availability.
Van Zant verbally informed Young in February 2009 that he might remove her
from the position of principal. At the time, according to Young, Van Zant said the
removal was because Young did not have good football game management skills and
because of her absences from campus, but gave no other reasons.
3
On March 12, 2009, Van Zant sent a written notice to Young, pursuant to
Education Code section 44951, informing her that she "may be released from [her]
present position as High School Principal and reassigned to a classroom position,
effective at the beginning of the 2009-[20]10 school year." On the same date, Van Zant
gave Young three memoranda.
The first memorandum contained a list of "directives" that Van Zant expected
Young to follow, such as (1) being on site each day from 7:00 a.m. to 3:00 p.m. unless
she received express permission to leave; (2) providing "personal leadership to [her] staff
through solving problems — not just passing them on to another leadership team
member"; and (3) preparing various reports and plans regarding the high school.
The second memorandum was an addendum to Young's February 2009 mid-year
evaluation. The memorandum evaluated whether Young made progress in areas that had
been identified as her three performance goals: (1) decreasing referrals and suspensions;
(2) increasing skills in differentiated teaching, thereby increasing test scores and student
learning; and (3) providing opportunities for staff to develop certain collaborative skills
and involving parents in the community. Van Zandt commented negatively on Young's
progress toward meeting the three goals, stating that he had not seen evidence of Young's
actions in several areas. He concluded by saying that "[a]t this time, I lack confidence in
your ability to effectively lead the school in a direction that is positive and productive."
The third memorandum set forth eight concerns with Young's work performance
and explained that Van Zant would be "conducting an exacting review of [Young's]
performance" to make a final determination on whether to reassign her. The eight
4
concerns involved (1) Young's attendance at work; (2) Young's ability to supervise
underperforming employees and deal with difficult employee situations; (3) Young's
approach to student discipline; (4) Young's lack of a defined strategy to improve student
performance; (5) Young's failure to provide adequate programs for at-risk and English-
language-learner students; (6) Young's lack of focus on a vision and plan to create future
success for the school; (7) Young's failure to provide adequate programmatic supervision
for ROP [regional occupational program], athletics and special education programs; and
(8) Young's insufficient grasp of the skills necessary to prepare a budget and a school
master schedule.
Young responded in writing to Van Zant's eight enumerated concerns, specifically
addressing each item and providing supporting documentation in some instances or
asking for clarification in other instances. For example, regarding Van Zant's criticism of
her absences from campus, Young provided Van Zant with documentation showing that
the absences were approved or were for school business or health reasons.
Around this time, Young spoke individually with school board members and gave
them information rebutting Van Zant's criticisms.
The school board voted to reassign Young at a May 13, 2009 meeting, and
Van Zant sent Young a notification letter on that date, stating that she was being
reassigned to the classroom at the beginning of the 2009-2010 school year, which meant
a significant reduction in pay. Young believed that she was being demoted in retaliation
for reporting Judd's sexual harassment.
5
In response to Young's request that she be given a reason for the reassignment,
Van Zant sent Young a letter on June 3, 2009, stating that the "reason for this action was
loss of confidence in your ability to function effectively as part of the current
management team of the District."
Young filed a complaint against MEUSD alleging three causes of action under
FEHA: (1) unlawful retaliation in violation of section 12940, subdivision (h); (2) failure
to take immediate, appropriate corrective action in violation of section 12940,
subdivision (j)(1); and (3) failure to prevent retaliation in violation of section 12940,
subdivisions (j) and (k).
The trial court conducted a bench trial over the course of several days. After
taking the matter under submission, the trial court issued a 20-page statement of intended
decision, finding in favor of Young on the causes of action for retaliation and failure to
prevent retaliation, awarding Young $150,000 in non-economic damages. Among the
trial court's findings was that "[Young's] report of sexual harassment by Mr. Judd was a
motivating reason for [MEUSD] to demote [Young]." The trial court discussed the
specific evidence that had convinced it that "the reasons cited by [MEUSD] to demote
[Young] were a pretext," including that Young had refuted the factual validity of several
of Van Zant's criticisms of her job performance. After considering MEUSD's objections,
the trial court confirmed its statement of decision and entered judgment in favor of
Young.
Young filed a motion for attorney fees, seeking an award based on a lodestar
calculated on an hourly rate of $475 for her attorney, David A. Miller, plus a multiplier of
6
1.6. MEUSD did not challenge the reasonableness of the hours spent by Miller on the
litigation, but argued that an hourly rate of $475 was too high and that a multiplier should
not be applied. The trial court granted the motion for attorney fees in the amount
requested by Young, for a total fee award of $439,645.
MEUSD appeals, contending that (1) insufficient evidence supports the trial
court's findings in favor of Young; (2) the trial court abused its discretion by awarding an
excessive amount of attorney fees; and (3) the trial court improperly awarded
postjudgment interest at the rate of 10 percent instead of 7 percent.
II
DISCUSSION
A. Substantial Evidence Supports the Trial Court's Findings That MEUSD
Unlawfully Retaliated Against Young
We first address MEUSD's challenge to the sufficiency of the evidence to support
the trial court's findings in favor of Young.
1. Standard of Review
"When a judgment or finding of fact is attacked on the ground that there is no
substantial evidence to sustain it, the power of the appellate court begins and ends with
the determination of whether there is any substantial evidence, contradicted or
uncontradicted, that will support the finding or judgment. [Citation.] Substantial
evidence is evidence of ponderable legal significance, reasonable in nature, and of solid
value. [Citations.] In reviewing the record for substantial evidence, we are required to
review the entire record in the light most favorable to the judgment." (George v.
7
California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489
(George).) "When two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the fact finder,
even if [we] might have reached a contrary conclusion." (Id. at p. 1492.)
2. Applicable Legal Standards for Retaliation Claims Under FEHA
The fundamental statutory provision at issue here is FEHA's anti-retaliation
provision, which makes it unlawful "[f]or any employer . . . to discharge, expel, or
otherwise discriminate against any person because the person has opposed any practices
forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted
in any proceeding under [FEHA]." (§ 12940, subd. (h).) There is no dispute that making
a report of sexual harassment, as Young did here, qualifies as opposing a practice
forbidden under FEHA for the purpose of a retaliation claim. (Cf. § 12940, subd. (j)(1)
[identifying sexual harassment as an unlawful practice under FEHA].)
"The elements of a claim for retaliation in violation of section 12940, subdivision
(h), are . . . : (1) the employee's engagement in a protected activity, i.e., 'oppos[ing] any
practices forbidden under this part'; (2) retaliatory animus on the part of the employer;
(3) an adverse action by the employer; (4) a causal link between the retaliatory animus
and the adverse action; (5) damages; and (6) causation." (Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal.App.4th 686, 713 (Mamou).)2 "Proof of two of these elements —
2 In accordance with these elements, the California Civil Jury Instruction (CACI)
No. 2505 – Retaliation states as follows:
8
the second and fourth — is likely to depend on circumstantial evidence, since they
consist of subjective matters only the employer can directly know, i.e., his attitude toward
the plaintiff and his reasons for taking a particular adverse action." (Ibid., italics added.)
3. The Trial Court's Finding of Retaliation Is Supported by Substantial
Evidence
MEUSD's challenge to the sufficiency of the evidence to support the retaliation
finding focuses on the requirement that Young establish a causal link between her
reporting of Judd's harassment and MEUSD's decision to reassign her from the principal
position. MEUSD argues that ". . . Young never demonstrated the proper causal
connection between her whistle blowing report[] and the District's demotion of her to
classroom teacher."
In determining whether the evidence is sufficient to support a finding in favor of
Young on the required causal element, we evaluate whether the evidence supports a
"[Name of plaintiff] claims that [name of defendant] retaliated against [him/her]
for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff]
must prove all of the following:
"1. That [name of plaintiff] [describe protected activity];
"2. [That [name of defendant] [discharged/demoted/[specify other adverse
employment action]] [name of plaintiff];]
"[or]
"[That [name of defendant] subjected [name of plaintiff] to an adverse employment
action;]
"[or]
"[That [name of plaintiff] was constructively discharged;]
"3. That [name of plaintiff]'s [describe protected activity] was a motivating
reason for [name of defendant]'s [decision to [discharge/demote/[specify other adverse
employment action]] [name of plaintiff]/conduct];
"4. That [name of plaintiff] was harmed; and
"5. That [name of defendant]'s conduct was a substantial factor in causing
[name of plaintiff]'s harm."
9
finding of "a causal link between the protected activity and the employer's action."
(George, supra, 179 Cal.App.4th at p. 1489.) It is sufficient if the "retaliatory animus
was at least a substantial or motivating factor in the adverse employment decision"; it
need not be the sole motivating factor. (Ibid., italics added.)3
"Both direct and circumstantial evidence can be used to show an employer's intent
to retaliate. 'Direct evidence of retaliation may consist of remarks made by
decisionmakers displaying a retaliatory motive. [Citation.]' [Citations.] Circumstantial
evidence typically relates to such factors as the plaintiff's job performance, the timing of
events, and how the plaintiff was treated in comparison to other workers." (Colarossi v.
Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).)
Here, the trial court's statement of decision identified numerous items of
circumstantial evidence that support an inference that MEUSD demoted Young in
retaliation for her reporting of Judd's sexual harassment.
First, as the trial court explained, the evidence supported a finding that Young
performed very well in her position as principal, with many accomplishments, and that
she was valued by students, parents and the community. Favorable job performance is
3 As we have explained, the trial court found in favor of Young on two of her causes
of action — unlawful retaliation and failure to prevent unlawful retaliation. MEUSD
challenges the findings on both causes of action but bases its challenge in both instances
on an identical argument. Specifically, MEUSD argues that insufficient evidence
supports a finding that MEUSD took any retaliatory action, and therefore neither a cause
of action for retaliation nor a cause of action for failure to prevent retaliation can stand.
Our conclusion that substantial evidence supports a finding that MEUSD retaliated
against Young disposes of MEUSD's appellate challenges to both causes of action.
10
one aspect of circumstantial evidence that a trial court can reasonably rely on to infer that
the plaintiff suffered an adverse employment action based on impermissible reasons.
(Colarossi, supra, 97 Cal.App.4th at p. 1153.)4
Second, the evidence supported a finding that at least some of Van Zant's asserted
criticisms of Young's job performance were demonstrably not based in fact and were
shown by Young to be inaccurate. In its statement of decision, the trial court closely
reviewed the evidence concerning several of Van Zant's criticisms of Young, and
explained — with specific citations to trial testimony and to trial exhibits — that the
evidence supported a finding that Van Zant's criticisms were not well founded or that
Young's description of the factual background for certain of those issues was more
credible than Van Zant's. Indeed, Young presented evidence to rebut Van Zant's criticism
of Young's absences from campus, employee supervision, student discipline, student
performance, Young's focus on the future success of the school, Young's programmatic
supervision, and Young's possession of the necessary skills to be an effective principal.
We have reviewed the record as to all of those issues and have found substantial support
4 MEUSD argues that "the trial court appeared to focus on the positive, and then
question why [MEUSD] would want to demote Young." According to MEUSD, "that is
not the test." We reject MEUSD's argument. As we read the trial court's analysis, it did
not focus solely on Young's successes as principal. Instead, the trial court properly
considered Young's successes, along with other circumstantial evidence — including
Van Zant's questionable criticisms and evidence of Van Zant's relationship with Judd —
to conclude that Young's reassignment was motivated by retaliation.
11
for the trial court's conclusion that several of Van Zant's criticisms of Young were not
based on the facts.5
Based on this evidence, the trial court could reasonably conclude that "the reasons
cited by [MEUSD] to demote [Young] were a pretext." The finding of pretext is
significant because "evidence that the employer's claimed reason is false — such as that it
conflicts with other evidence, or appears to have been contrived after the fact — will tend
to suggest that the employer seeks to conceal the real reason for its actions, and this in
turn may support an inference that the real reason was unlawful." (Mamou, supra, 165
Cal.App.4th at p. 715.) As the trial court reasonably did in this case, a finder of fact "can
take account of manifest weaknesses in the cited reasons in considering whether those
reasons constituted the real motive for the employer's actions, or have instead been
asserted to mask a more sinister reality." (Ibid.)
Third, the evidence supports the trial court's finding that Judd had a relationship
with both school board member Northcote and with Van Zant that was stronger than any
of those men claimed during their testimony. Specifically, this finding could reasonably
be based on, among other things, (1) the trial court's negative assessment of Northcote's
credibility; (2) the testimony describing Northcote's reaction when Young reported Judd's
5 For example, as we have described, Young presented Van Zant with
documentation showing that her absences from campus were approved, and were for
school business or for health reasons, and at trial, Young extensively discussed the
evidence supporting all of her rebuttals to Van Zant's criticisms. The testimony of a
single witness is sufficient to prove a fact. (People v. Richardson (2008) 43 Cal.4th 959,
1030-1031.)
12
harassment to him; (3) the testimony by Deputy Keith Nye that he twice saw Judd and
Van Zant lunching together after Van Zant became superintendent, and that several
school board members told him that Judd and Van Zant were friends;6 and (4) the trial
court's assessment that Judd's denial of recent contact with Van Zant was not credible
because Judd was forced to admit during his testimony that he had attended a board
meeting for a nonprofit organization with Van Zant despite his denial of any contact.
The circumstantial evidence we have described — Young's positive job
performance, the demonstrable problems with Van Zant's criticisms of Young, and the
relationship that the trial court reasonably found to exist between Van Zant, Judd and
Northcote — collectively constitute substantial evidence to support the trial court's
finding that MEUSD removed Young from her position as principal, at least in part, in
retaliation for her reporting of Judd's harassment rather than because of the reasons
identified by Van Zant.
6 MEUSD suggests that Deputy Nye's testimony was suspect because Deputy Nye is
engaged to Young. However, the trial court was entitled to make credibility
determinations as it saw fit, which it is not our role to second guess. (People v. Jones
(1990) 51 Cal.3d 294, 314 [in review for substantial evidence, "it is the exclusive
province of the trial judge or jury to determine the credibility of a witness," and "we must
accord due deference to the trier of fact and not substitute our evaluation of a witness's
credibility for that of the fact finder"].) The trial court expressly stated that it found Nye's
testimony about seeing Judd and Van Zant together to be credible, and we may not
disturb that determination.
13
4. MEUSD's Arguments Regarding the Insufficiency of the Evidence as to
Causation Lack Merit
MEUSD presents several specific arguments in its attempt to challenge the
evidentiary support for the trial court's causation finding, but as we will explain, none of
them have merit.
First, MEUSD focuses on the length of time between Young's late 2007 report of
Judd's sexual harassment and the May 2009 notification that Young would be removed
from the principal position. MEUSD argues that "the length of time elapsing between the
report of harassment and the ultimate demotion is problematic" for a finding that the
demotion was based on retaliation. Specifically, MEUSD relies on case law arising
under federal employment discrimination law, such as Villiarimo v. Aloha Island Air, Inc.
(9th Cir. 2002) 281 F.3d 1054, 1065, in which the Ninth Circuit explained that "in some
cases, causation can be inferred from timing alone where an adverse employment action
follows on the heels of protected activity" but that "timing alone will not show causation
in all cases; rather, 'in order to support an inference of retaliatory motive, the termination
must have occurred "fairly soon after the employee's protected expression." ' " (Ibid.,
italics added.)
This argument is misplaced because, according to the trial court's own explanation
of its findings, it did not infer a causal connection between Young's report of harassment
and Young's removal from the principal position based solely on the timing of those
events. Instead — as we have explained — the causation finding is supported primarily
by the trial court's determination — based on evidence in the record — that Van Zant's
14
reasons for criticizing Young's job performance were not credible and that Van Zant and
Northcote had a relationship with Judd, raising a motive for retaliation. Contrary to
MEUSD's suggestion, this is not a case in which an inference of causation was based on
"timing alone." Accordingly, in order to establish causation, Young was not required to
show that there was a short time frame between her report of harassment and the adverse
employment action by MEUSD.
Further, although a "long period between an employer's adverse employment
action and the employee's earlier protected activity may lead to the inference that the two
events are not causally connected," "if between these events the employer engages in a
pattern of conduct consistent with a retaliatory intent, a causal connection" may exist.
(Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421,
citation omitted (Wysinger).) Here, although it was not until March 2009 that Van Zandt
gave official notice to Young of the possible reassignment to the classroom (and not until
May 2009 that a final decision on the reassignment was made), the evidence supports a
finding that Van Zant started criticizing Young's performance and laying the groundwork
for the adverse employment action as soon as he became superintendent in July 2008.7
That date was only a few months after Young reported the harassment. Viewed in that
light, the lapse of time between Young's report of harassment in late 2007 and her
7 Indeed, Van Zant admitted in his testimony that in October or November 2008 he
first had the thought that Young should be removed from her position of principal.
15
removal as principal in mid-2009 does not undermine the reasonableness of the trial
court's finding that Young's demotion was caused, at least in part, by retaliation. 8
Next, MEUSD argues that the trial court's finding of causation was not supported
by substantial evidence because MEUSD "offered evidence of a legitimate,
nondiscriminatory reason for the termination." MEUSD contends that the evidence
showed that, for several reasons, ". . . Van Zant did not feel that Young was the best
person for the job, and he recommended her reassignment to the Board."
As an initial matter, we note that in MEUSD's discussion of whether it offered
evidence of a legitimate nondiscriminatory reason for its demotion of Young, it has
confused the legal standards applicable to a summary judgment motion in a FEHA case
with the legal standards applicable in our review of findings following a trial. In support
of its appellate argument, MEUSD improperly refers to the burden shifting analytical
structure intended for use in ruling on summary judgment motions in employment
discrimination actions, described by the United States Supreme Court in McDonnell
8 MEUSD argues that we should not view Van Zant's earlier criticism of Young as
motivated by retaliation because Young did not complain to an administrator or school
board member of retaliation during that time. MEUSD's argument is not persuasive.
Young testified that she perceived Van Zant's criticism as retaliatory from the beginning,
and she submitted evidence supporting an inference that certain of Van Zant's early
criticisms of her — including his comments about graduation and management of
football games — were questionable. Regardless of whether Young complained to
someone in authority about her early suspicion of Van Zant's retaliatory motive, a
reasonable trier of fact could still infer that Van Zant had started laying the groundwork
for a retaliatory action as soon as he assumed the position of superintendent. Moreover,
Young testified that when it became clear — through Van Zant's notification — that
Van Zant was intending to remove her from her position, she expressed her suspicion of
retaliation to school board members.
16
Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) and our Supreme
Court in Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355. Under that approach,
the employee raises a presumption of discrimination by presenting a prima facie case,
which the employer may dispel by articulating a legitimate, nondiscriminatory reason for
the challenged action. (Guz, at p. 355.)
As Young correctly points out, the burden shifting framework has no application
here, where the case has proceeded to trial. When "the case is submitted to the trier of
fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the fact
finder will have only to decide the ultimate issue of whether the employer's
discriminatory intent was a motivating factor in the adverse employment decision."
(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205.) Thus, our
analysis does not turn on whether or not MEUSD has articulated a legitimate reason for
removing Young as principal.
Instead, we focus on whether — despite evidence of legitimate reasons for
Young's reassignment — any substantial evidence supports a finding that those legitimate
reasons are pretextual and that Young's demotion was in fact motivated by retaliation for
her reporting of Judd's harassment. Here, as we have explained, substantial evidence
supports the trial court's determination that although MEUSD did put forth several
reasons that it claimed to be the legitimate bases for removing Young from her position,
those reasons were pretextual and the adverse employment action was, at least in part,
based on retaliation. At trial, it is not enough for MEUSD to identify legitimate reasons
for removing Young and to offer some supporting evidence; in order to support a
17
judgment for MEUSD, the finder of fact has to believe those reasons. Here, the record
sufficiently supports the trial court's finding that MEUSD's reasons for Young's
reassignment were not credible.9
Finally, MEUSD argues that the evidence is insufficient to show that Young's
removal as principal was caused by retaliation because it is the school board that made
the ultimate decision whether to remove Young. MEUSD argues that the record contains
no evidence of animus on the part of the school board, and that ". . . Young ultimately
was required to prove that the Board as a whole was retaliating for her sexual harassment
report." This argument fails because "the plaintiff can establish the element of causation
by showing that any of the persons involved in bringing about the adverse action held the
requisite animus, provided that such person's animus operated as a 'but-for' cause, i.e., a
force without which the adverse action would not have happened." (Reeves v. Safeway
Stores, Inc. (2004) 121 Cal.App.4th 95, 108.) Here, the evidence is undisputed that the
school board voted to remove Young from the position of principal because of Van Zant's
9 MEUSD relies on Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367 to argue that the evidence was insufficient to support a finding that
retaliation was one of the motives for Van Zant's removal of her from the principal
position. Jones is inapposite. It concerns the issue of whether, in opposing a summary
judgment motion, the plaintiff submitted sufficient evidence to create an inference that
the harassment she experienced was based on her gender or race. Jones concluded that
plaintiff had not submitted sufficient evidence to support such an inference, especially in
light of the fact that she stated during her deposition testimony that she did not know
whether specific incidents were prompted by her gender or race. (Id. at pp. 1378-1379.)
This is not a harassment case; this appeal does not arise in the context of a summary
judgment motion, and Young never expressed any uncertainty as to Van Zant's
motivation.
18
recommendation as superintendent of MEUSD. Thus, regardless of whether any of the
school board members were motivated by retaliatory animus, the inference that Van Zant
acted to retaliate against Young is sufficient to support the trial court's finding of
retaliation against MEUSD.
In sum, we conclude that substantial evidence supports the trial court's finding of
unlawful retaliation against MEUSD.
B. The Trial Court Did Not Abuse Its Discretion in Determining the Amount of
Attorney Fees Awarded to Young
Next, we address MEUSD's challenge to the trial court's award of $439,645 in
attorney fees to Young. Although MEUSD does not take issue with the principle that
Young was statutorily eligible for an award of reasonable attorney fees as a prevailing
plaintiff in a lawsuit brought under FEHA (§ 12965, subd. (b)), and does not challenge
the number of hours that Young's attorney, David Miller, devoted to this litigation, it
argues that the amount of the award was too high. Specifically, MEUSD contends that
(1) the trial court should not have concluded that $475 was a reasonable hourly rate for
Miller, and (2) the trial court should not have applied a 1.6 multiplier in setting the
amount of the fee award. MEUSD contends that the amount of the award "shocks the
conscience."
We apply an abuse of discretion standard in reviewing the trial court's award of
attorney fees. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440,
445 (Vo).) "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
19
will not be disturbed unless the appellate court is convinced that it is clearly wrong.' "
(Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano).)
"The determination for fees under section 12965 must be based upon a proper
utilization of the lodestar method. [Citations.] In California, the lodestar method
requires the trial court to first determine a touchstone or lodestar figure based on a careful
compilation of the time spent and reasonable hourly compensation for each attorney.
[Citations.] The trial court may then augment or diminish the touchstone figure by taking
various relevant factors into account. [Citations.] In Serrano . . . , supra, 20 Cal.3d at
page 49, the California Supreme Court identified the relevant factors in that case as
follows: 'Among these factors were: (1) the novelty and difficulty of the questions
involved, and the skill displayed in presenting them; (2) the extent to which the nature of
the litigation precluded other employment by the attorneys; (3) the contingent nature of
the fee award, both from the point of view of eventual victory on the merits and the point
of view of establishing eligibility for an award; (4) the fact that an award against the state
would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question
received public and charitable funding for the purpose of bring[ing] law suits of the
character here involved; (6) the fact that the monies awarded would inure not to the
individual benefit of the attorneys involved but the organizations by which they are
employed; and (7) the fact that in the court's view the two law firms involved had
approximately an equal share in the success of the litigation.' (Fn. omitted.)" (Vo, supra,
79 Cal.App.4th at pp. 445-446, capitalization altered.)
20
Here, the trial court determined that $475 was a reasonable hourly fee based on
evidence in the record. Young's motion for attorney fees was supported by Miller's own
declaration, which described his extensive experience and stated that his hourly rate was
$475 per hour, which he had been awarded in a similar FEHA case. Further, the motion
was supported by the declaration of three other attorneys who handle similar cases, all of
whom stated that a rate of $475 per hour was reasonable and commensurate with fees
charged by other lawyers of similar skill and expertise.10
MEUSD argues that the trial court should have relied on the evidence that
MEUSD filed in opposition to the fee motion, which were declarations submitted by
attorneys in different employment law matters in 2009, 2010 and 2011. Those
declarations set forth the attorneys' hourly rates in those cases, which ranged from $305
to $325. One declaration — filed in an employment case in 2009 — opined that it is
customary to award $350 per hour or more throughout California in such matters.
We conclude that MEUSD's challenge to the trial court's selection of $475 as a
reasonable hourly rate is without merit. "The amount of fees is within the sound
discretion of the trial court and the trial judge is in the best position to evaluate the
quality of legal services at trial." (Wysinger, supra, 157 Cal.App.4th at p. 430.)
Although the trial court would have been within its discretion to credit MEUSD's
10 Despite MEUSD's attempts to discredit the declarations by pointing out that they
do not contain certain information, such as the rate charged by the declarants, the trial
court was within its discretion to credit the declarants' statements that — based on their
knowledge and expertise — the hourly rate of $475 was reasonable and customary for
Miller to charge in this litigation.
21
evidence and arrive at a different conclusion, it certainly was not required to do so. Here,
the trial court reasonably relied on the evidence submitted by Young, as well as its own
experience in the litigation, to decide that "the skills, training, experience and expertise
reflected by Mr. Miller" supported an award of $475 per hour as a reasonable attorney
fee.
We also reject MEUSD's argument that the trial court erred in applying a
multiplier. As we have explained, our Supreme Court has identified a number of
different factors that can enter into a decision to apply a multiplier to a lodestar
calculation. (Serrano, supra, 20 Cal.3d at p. 49.)
Here, the trial court expressly identified the following three factors: "(1) the
contingent nature of the representation; (2) the risk involved in taking this litigation;
[and] (3) the policy behind the litigation and the need for the public entity to have a
policy regarding sexual harassment and retaliation" as supporting the application of a
multiplier. Those factors are pertinent here, as Miller's representation of Young involved
risk, was contingent and the evidence showed that MEUSD did not have a policy against
retaliation.
MEUSD suggests that a more appropriate multiplier would have been 1.25 rather
than 1.6, citing Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567,
627, which approved a 1.25 multiplier in a sexual orientation harassment case brought by
students against a school district. However, each litigation is different, and the trial court
was not " 'clearly wrong' " (Serrano, supra, 20 Cal.3d at p. 49) to conclude that 1.6 rather
than 1.25 was an appropriate multiplier to compensate counsel for the successful
22
representation of Young in this action, as it identified three pertinent reasons for applying
the multiplier, and because " '[t]he value of legal services performed in a case is a matter
in which the trial court has its own expertise.' " (PLCM Group, Inc. v. Drexler (2000) 22
Cal.4th 1084, 1096.)11 In sum, the trial court's award of attorney fees does not "shock
the conscience" as MEUSD contends. Instead, it was properly based on a reasonable
analysis under the applicable lodestar method.
C. The Trial Court Erred in Setting the Annual Postjudgment Interest Rate at
10 Percent
In a footnote appearing in the opening brief's review of the procedural history,
MEUSD states although the judgment awards postjudgment interest at the rate of
10 percent per annum, it should have been at the rate of 7 percent because MEUSD is a
public entity. MEUSD states that it "seeks a correction to this rate in the event that the
judgment is affirmed." Although MEUSD does not raise this issue in the argument
portion of its brief, we will exercise our discretion to address it as an issue within the
scope of this appeal, as Young has had an opportunity to respond.
Here, the judgment's award of postjudgment interest to Young at the rate of
10 percent per annum was likely arrived at by applying Code of Civil Procedure section
11 MEUSD argues that if the trial court was attempting to apply a multiplier that
would provide interest to Miller for the delay in payment caused by the fact that he was
performing work under a contingency agreement, it would have been appropriate for the
trial court to select a lower multiplier to approximate a customary interest rate. We reject
this argument because there is no indication in the record that the trial court was
attempting to award interest. Instead, as we have explained, the trial court set forth three
factors that it found supported the application of a multiplier, none of which expressly
concerned the awarding of interest.
23
685.010, subdivision (a), which states that "[i]nterest accrues at the rate of 10 percent per
annum on the principal amount of a money judgment remaining unsatisfied." (Ibid.)
However, our Supreme Court has determined that this statutory provision is not
applicable when a local public entity is a defendant in a litigation because section 970.1,
subdivision (b) "plainly and expressly exempts local public entities from the application
of title 9 of the Code of Civil Procedure as a whole, including . . . section 685.010."
(California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342,
347.) Thus, in the case of local public entities, article XV, section 1, of the California
Constitution applies, which states: "In the absence of the setting of such rate by the
Legislature, the rate of interest on any judgment rendered in any court of the state shall be
7 percent per annum." As the Legislature has not specifically provided for a different
rate for postjudgment interest against a public entity, "the applicable rate of postjudgment
interest to be paid by local public entities is 7 percent per annum." (California Fed., at
p. 345.)
As a school district, MEUSD is a local public entity. (§ 970, subd. (c).)
Accordingly, postjudgment interest should have been awarded at the annual rate of
7 percent instead of 10 percent. We will modify the judgment accordingly.
24
DISPOSITION
The judgment is modified to award postjudgment interest at the rate of 7 percent
per annum. As modified, the judgment is affirmed. Young is to recover her costs.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.
25