Snoeck v. ExakTime Innovations ( 2023 )

Filed 10/2/23; Certified for Publication 10/25/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
STEVE SNOECK, B321566
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. BC708964
EXAKTIME INNOVATIONS, INC.,
Defendant and Respondent.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael P. Linfield, Judge. Affirmed.
Barritt Smith Miner, Perry G. Smith and Danielle N.
Riddles for Plaintiff and Appellant.
Jackson Lewis, Michael A. Hood and Dylan B. Carp
for Defendant and Respondent.
_________________________
Plaintiff Steve Snoeck appeals from the trial court’s order
awarding him $686,795.62 in attorney fees after the court applied
a .4 negative multiplier to its $1,144,659.36 adjusted lodestar
calculation “to account for [p]laintiff’s counsel’s . . . lack of
civility throughout the entire course of this litigation.” The
court awarded Snoeck fees after he prevailed on one of his
six causes of action against his former employer ExakTime
Innovations, Inc. on his complaint for disability discrimination
under the Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.) and related causes of action. The jury awarded
Snoeck $130,088 in damages on his claim ExakTime failed to
engage in a good faith interactive process with him. On Snoeck’s
appeal, we affirmed that verdict.
Snoeck contends the $457,863 reduction in attorney fees
based on his counsel Perry Smith’s incivility must be reversed
for several reasons. In essence, he argues that—because the
fee reduction was not associated with any costs—the court
impermissibly applied it to punish Smith and had no legal
authority to shift attorney fees to defendant as a sanction.
ExakTime argues the trial court’s downward adjustment to
the lodestar sum was permissible under Ketchum v. Moses
(2001) 24 Cal.4th 1122 (Ketchum) because civility is an aspect
of an attorney’s skill, as this District stated in Karton v. Ari
Design & Construction, Inc. (2021) 61 Cal.App.5th 734 (Karton)
and on which the trial court relied.
We agree a trial court may consider an attorney’s pervasive
incivility in determining the reasonableness of the requested fees.
A court may apply, in its discretion, a positive or negative
multiplier to adjust the lodestar calculation—a reasonable rate
times a reasonable number of hours—to account for various
2
factors, including attorney skill. (Ketchum, supra, 24 Cal.4th
at pp. 1131–1134; Karton, supra, 61 Cal.App.5th at pp. 744–745,
747.) The record before us amply supports the trial court’s
finding that plaintiff’s counsel was repeatedly, and apparently
intentionally, uncivil to defense counsel—and to the court—
throughout this litigation. We thus find no abuse of discretion
and affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Earlier proceedings
Snoeck sued ExakTime for six claims: five claims under
the FEHA—failure reasonably to accommodate a known
or perceived disability, failure to engage in a good faith
interactive process, disability discrimination, failure to prevent
discrimination and retaliation, and retaliation—and a claim
for wrongful termination in violation of public policy. In June
2019, a jury returned a verdict in Snoeck’s favor on his claim for
failure to engage in a good faith interactive process and found
in favor of ExakTime on Snoeck’s five other claims. The jury
awarded Snoeck $58,088 in economic damages and $72,000
in non-economic damages, for a total of $130,088. In October
2019, the trial court denied Snoeck’s motions for judgment
notwithstanding the verdict (JNOV) and for a new trial.
Snoeck appealed, and we affirmed the judgment. (See Snoeck
v. ExakTime Innovations, Inc. (Oct. 29, 2021, B302178)
[nonpub. opn.] (Snoeck I).1 In affirming the judgment, we
1 Snoeck also appealed from the trial court’s order denying
the costs he incurred after he rejected ExakTime’s settlement
offer under Code of Civil Procedure section 998 (998 offer) that
was greater than the jury awarded. We reversed that order
3
concluded the court erred in giving CACI No. 2512, a jury
instruction applicable to mixed-motive cases, but the error was
not prejudicial. (Snoeck I.) Snoeck petitioned for rehearing,
which we denied. The California Supreme Court denied Snoeck’s
petition for review and request for publication of Snoeck I.
After the matter was remanded, Snoeck filed a peremptory
challenge under Code of Civil Procedure section 170.6 to
disqualify the trial judge. The court denied the peremptory
challenge as untimely. Snoeck did not file a writ petition
to seek review of the denial.2
2. Snoeck’s motion for attorney fees
Snoeck then filed a motion for attorney fees under
Government Code section 12965, former subdivision (b),
now subdivision (c)(6), as the prevailing plaintiff on a FEHA
claim. He asked for the lodestar amount of $1,193,870 plus a
1.75 multiplier for a total of $2,089,272.50. ExakTime opposed
the motion. It argued the lodestar should be reduced based on
several grounds, including, evidence of excessive billing; and/or
Snoeck’s attorneys’ “[d]eceptive, improper and unprofessional
conduct.” That conduct, ExakTime said, should be considered
in the court’s discretion in “evaluating the credibility of the
amount and reasonableness of” the requested fees.
finding the court erred in permitting ExakTime to submit
evidence of the offer in its reply brief. (Snoeck I.)
2 Nonetheless, at the hearing on Snoeck’s fee motion, Smith
mentioned the court’s denial of Snoeck’s peremptory challenge
“to be sure . . . the court believe[d] that it could decide this motion
without any bias toward plaintiff’s counsel.”
4
ExakTime noted that, in the moving papers, Snoeck’s
attorneys had accused ExakTime of “exploiting the Court,
utilizing ‘underhanded’ tactics, presenting a ‘sham defense,’ and,
in general arguing that defense counsel perpetrated a fraud on
the Court.” It attached several emails from Snoeck’s counsel to
ExakTime’s counsel sent in March, May, June, and December
2019; April, August, and November 2020; March 2021; and
March 2022. In them, Smith accused ExakTime’s counsel of
knowingly misrepresenting the law and facts to the trial and
appellate courts, misconduct, and lying; referred to counsel’s
actions as “the Marchlewski thing again” (referring to
ExakTime’s primary attorney Theresa M. Marchlewski) and
stated Marchlewski was “cringeworthy” and sold the court
“the big lie”; referred to defense counsel as having viewed
the trial court “as an easy mark,” having “made a total fool of”
(all capitals omitted) and “exploited” the trust of the trial judge;
having committed “a brazen con,” and having “duped” the
trial and appellate courts.
ExakTime argued Smith’s emails “served no purpose
in advancing Snoeck’s cause,” but it appeared he was seeking
compensation for them in his block billing on eight dates.
ExakTime argued Snoeck’s attorneys’ fees should be reduced by
the amount charged after the 998 offer, or alternatively reduced
to 16.6 percent of the billed hours, proportional to their success
rate. It also asked the court to apply a 25 percent “deduction
of Smith’s billings due to their patent excessiveness.”3
3 ExakTime also argued the court should use the same lower
“insurance rates” ExakTime’s counsel had charged.
5
Snoeck’s reply described ExakTime’s opposition “as an
effort to profit from its successful misrepresentations of law
and fact in this case” and “rewarding such wrongful conduct by
reducing fees would be unjust.” Snoeck asserted, “ExakTime
successfully used deliberate misrepresentations of law and fact
to hinder Snoeck’s ability to seek and obtain verdicts/award
based on accurate law and facts.” (Original italics.) The reply
accused ExakTime of having “engaged in a knowing fraud
on the trial court” and “in calculated misrepresentations to
the courts in this case as an effort to limit Snoeck’s success
in obtaining a remedy.”4
3. The trial court’s tentative ruling
The trial court posted a tentative ruling before the April 18,
2022 hearing that partially granted Snoeck’s motion, awarding
him $686,795.62 in attorney fees. The court posted a revised
tentative announcing the same award, but with “mostly
4 Although not before the trial court, Snoeck included in his
appellant’s appendix an April 6, 2022 email he sent ExakTime’s
counsel before filing his reply. That email states in part, “What
I am wondering is why you provided no denial of having
committed . . . fraud on the trial court, and of having
committed the second fraud in the Court of Appeal, in your
opposition papers or declarations.” “I also did not see you
correct your earlier misrepresentations. Please do.” (Original
italics and boldface type.) It’s unclear what Snoeck hoped to
gain by including this email in his appendix. If it was to make
a record, that record serves only to reflect poorly on his counsel.
6
grammatical, . . . [non-]substantive” changes, which the court
ultimately adopted as its final order.5
The trial court found Snoeck’s counsel’s individual hourly
rates—$750 per hour for Smith and $600 and $535 per hour for
two other attorneys—were reasonable. The court also corrected
the requested lodestar for computation errors. The court applied
a 20 percent “across the board reduction,” however, to the
number of hours Snoeck’s counsel had requested to address
billing concerns ExakTime raised, including overstaffing,
duplicative and vague billing, and other issues. That reduction
reduced the arithmetically corrected lodestar figure from
$1,192,353.50 to $953,882.80.
The court then applied a 1.2 positive multiplier to account
for the contingent nature of Snoeck’s counsel’s fees, including
5 The changes included deletion of some previously-quoted
language from Smith’s emails to ExakTime’s counsel, such as
reference to the trial judge’s name. Snoeck makes much of the
court having revised its tentative, claiming the court “deleted
evidence of ExakTime’s counsel’s lack of candor to the court
and ExakTime’s fabricated and unsupported defense.” The
trial court’s tentative ruling was tentative. The court was free
to reword it or to change it completely. (See Magno v. The College
Network, Inc. (2016) 1 Cal.App.5th 277, 285, fn. 2 [court’s
tentative ruling is not binding on the court].) That the court
shortened some of the excerpted emails to focus on the issue—
counsel’s incivility—and omitted some of Smith’s more belittling
comments about the court, does not demonstrate the court
somehow was hiding ExakTime’s alleged misconduct as Snoeck
seems to imply. Smith’s accusations were not evidence of
misconduct. In any event, Snoeck has failed to show how
the court’s quotation of Smith’s emails constitutes error.
7
the fact counsel had worked on the case for four years “without
being paid.” The court explained that, at the statutory 10 percent
interest rate per year, Snoeck’s counsel should be awarded a
1.4 multiplier for work performed four years ago, a 1.3 multiplier
for work done three years ago, a 1.2 multiplier for work from
two years ago, and 1.1 multiplier for one-year old work. As
that calculation would be too cumbersome, the court applied
the median of 1.2 for all work done. Applying the 1.2 multiplier
“for the time value of money” to the reduced $953,882.80 lodestar
resulted in a revised lodestar of $1,144,659.36. Snoeck does
not challenge the court’s 20 percent reduction of the lodestar
or the application of a 1.2 multiplier rather than his requested
1.75 multiplier.
Finally, the court applied a negative multiplier to
account for Snoeck’s counsel’s lack of civility. The court’s order
reproduced “some” of the “uncivil language” from Smith’s emails
that ExakTime had attached. The court included 13 quoted
statements from 12 different emails—two from June 2019 before
the verdict, three from 2020 after Snoeck filed his appeals from
the judgment and order taxing costs, seven from March 2021
while those consolidated appeals were pending, and one email
sent in March 2022 months after this court issued its opinion
in Snoeck I.
After quoting Smith’s emails for about two and half pages,
the court noted Smith’s “incivility was not only directed to
opposing counsel; it was also directed to the Court.” The court
remarked that, in its October 8, 2019 minute order, more than
two years ago, it had stated, “ ‘Plaintiff’s counsel’s tone of voice
(which was not reflected in the Court Reporter’s record) was
both belittling and antagonistic; at times it verged on the
8
contemptuous.’ ” The court continued, “The language quoted
above is uncalled-for and unacceptable. Plaintiff counsel’s
ad hominem attacks were unnecessary for the zealous
representation of his client.” Citing caselaw, the court noted
the absence of civility “ ‘heightens stress and debases the
legal profession,’ ” and reminded Smith that the California
Rules of Court,6 rule 9.7 requires the attorney oath to conclude
with, “ ‘ “As an officer of the court, I will strive to conduct myself
at all times with dignity, courtesy and integrity.” ’ ”
Relying on Karton, the court stated, “Civility is not just
a moral good. ‘Attorney skill is a traditional touchstone for
deciding whether to adjust a lodestar. [Citation.] Civility is
an aspect of skill.’ ” (Quoting Karton, supra, 61 Cal.App.5th
at p. 747.) The court ruled it would apply “a .4 negative
multiplier to account for Plaintiff’s counsel’s repeated and
apparently intentional lack of civility throughout the entire
course of this litigation.” Again quoting Karton, the court
noted, “ ‘[C]ivility in litigation tends to be efficient by allowing
disputants to focus on core disagreements and to minimize
tangential distractions. It is a salutary incentive for counsel
in fee-shifting cases to know their own low blows may return
to hit them in the pocketbook.’ ” (Ibid.) Applying the .4
negative multiplier to the $1,144,659.36 revised lodestar
yielded a final award of $686,795.62 in attorney fees.
4. The hearing on Snoeck’s fee motion
At the hearing, Smith acknowledged having received
the court’s tentative and argued on behalf of Snoeck. He noted
6 References to rules are to the California Rules of Court
unless indicated otherwise.
9
the court’s tentative “did not address . . . Snoeck’s claims
regarding the ethical lapses of the defense.” He then quoted
from rules 3.1 (meritorious claims and contentions) and 3.3
(candor toward the tribunal) of the Rules of Professional Conduct.
The court interrupted, “If you’re arguing that defense counsel
had breached their ethical duties, I’m making no ruling on that.
Defense counsel has not submitted any application for attorneys’
fees, so I’m not sure where you’re going on that.” Smith then
argued Karton concerned the additional litigation costs incivility
could cause. Smith and the court engaged in a lengthy colloquy;
we reproduce only portions of it.
Court: “It’s more than simply that it increases fees.
It debases the profession.”
Smith: “[T]he point [in Karton] is that [incivility] can
result in overlitigation.”
Court: “Well, no, that’s not quite true. . . . [T]he
[Karton] case says . . . [i]t is a salutary
incentive for counsel in fee-shifting cases
to know their own low blows may return
to hit them in the pocketbook.”
Smith: “Right. They may if, as it says at the outset,
[‘]judges permissibly may consider whether
an attorney’s incivility in the litigation has
affected the litigation cost[s].[’] [¶] . . . We have
a public policy here. I’m bringing a FEHA
claim as an attorney who’s entitled to a full
award of fees because of the incentivizing that
the Legislature want to do [sic] to bring these
cases. I’m entitled to that full award of fees
10
unless there’s a special circumstance that
makes giving that award unjust.”
Court: “And you believe incivility is not such a special
circumstance?”
Smith: “This court is saying . . . civility is an ethical
component of professionalism. [¶] Now, is the
court aware, because I’m not, of a particular
rule of professional conduct that addresses
civility?”
Smith again argued defense counsel violated rule 3.1 of
the Rules of Professional Conduct by presenting “a mixed-motive
defense in a case that does not have a mixed-motive defense.”
A further colloquy ensued:
Court: “You’re arguing, as I understand it, the defense
is either complicit in the incivility or has
themselves been incivil or has incited you
to being incivil, something of that sort. And
you’re arguing that the defendant has misled
this court and the court of appeal; is that
correct?”
Smith: “It did. And there’s been no denial of that.”
Court: “Okay. And the court of appeal has ruled that
it affirmed, they find no prejudicial error in
anything that was done and affirm.”
Smith: “Right. Well, the court of appeal actually found
(reading [from the opinion]) this was not a
mixed-motive case.”
“This court certainly knows and the defense
has not denied that it’s impossible that the jury
found that Snoeck could not work with an
11
accommodation because it gave him lost income
damages for the failure to interact. You can’t
find both a lawful termination and an unlawful
termination at the same time. Their argument
was a false statement of fact to the Court of
Appeal, which the Court of Appeal relied on
after [the defense] made a false argument
of law on mixed motive to the trial court.”
Court: “[Y]ou’re arguing . . . that the defendant made
a false statement to the Court of Appeal?”
Smith: “And this court, yes, multiple times.”
Court: “What is the purpose of that argument? Is this
court supposed to give you—increase your fees
because they made a false statement?”
Smith: “Absolutely it is. And this is why, this court is
concerning itself with civility. (Reading [from
Karton]) [‘]Civility is an ethical component of
professionalism.[’] Not even something that’s
stated in the Rules of Professional Conduct but
implied by what we are striving to do under
oath that the court quoted.”
Smith continued to argue ExakTime’s counsel violated
an “actual canon, actual Rules of Professional Conduct.”
He asserted defense counsel, and the trial court, “completely”
ignored the authority he’d cited. Smith again argued, “The jury
did not find [Snoeck] couldn’t work. They could not possibly have
found that. That’s another misrepresentation of law, in fact,
to the Court of Appeal. But the court is not concerned with those
ethical lapses that cost an enormous amount of money, that cost
those appeals. Those appeals were only necessary because of the
12
misrepresentation.” The court reminded counsel that he “lost on
appeal” because the court affirmed the verdict. Smith went on,
“Were we . . . supposed to guess that [ExakTime’s] appellate
counsel would represent that the jury found something it couldn’t
possibly under law have found? We were supposed to guess that?
And that the Court of Appeal would then adopt that false
statement and go with it?”
The court acknowledged Snoeck’s “appeal was not
frivolous.” But in response to Smith’s insistence that the Court
of Appeal had found error, the trial court reiterated it was found
to have “made no prejudicial instruction or evidentiary errors.”
Smith continued to argue with the trial court:
Smith: “But is this court not concerned with why
they found no prejudice, which it would stand
[sic] throughout its opinion that the jury found
that Snoeck could not work as a matter of law?
That was based on a misrepresentation.
The court’s not concerned that that
misrepresentation is what the court of appeal
relied, and what we all know that’s a legal
impossibility?”
Court: “Apparently, you’re arguing that this court was
snookered, the court of appeal was snookered,
and everyone misunderstood what was
happening other than yourself.”
Smith: “You know why?”
Court: “That is your argument.”
Smith: “Absolutely. It’s an indisputable argument.”
13
Court: “Okay. If it’s indisputable, I assume you
petitioned the Supreme Court for review,
and they didn’t take it, the review.”
Smith: “But it’s not disputed by the defense. It’s not
disputed by the court, and it can’t be disputed
because it’s clear what the jury found.”
Court: “I’m not going to argue with you, counsel.
You’re saying that this court erred, the Court
of Appeal erred, everyone erred but you. . . .
That’s fine. I’ll give you five more minutes . . . .”
Smith again argued the court had ignored relevant
authorities he’d cited, and defense counsel “still [had] an
obligation . . . today to correct a false statement of law, a mixed
motive; right? They told this court that a mixed-motive analysis
applied. It’s a false statement of law. They’re still not correcting
it, but we’re being accused of ethical lapses by our responses.”
After further colloquy, Smith once more argued defense counsel
knew they were “supposed to tell this court, that the jury did not
find [Snoeck] couldn’t work . . . [and] that they misrepresented
the law when they put mixed motive [sic], and that they ignored
Wallace7 every single time . . . .”
At that, the court replied, “I think you’ve stated this now at
least a half a dozen times. I’m going to turn to defense lawyer.”
Smith then asked to go through each of the 13 statements quoted
in the tentative. The court noted he had “used . . . much more
7 Wallace v. County of Stanislaus (2016) 245 Cal.App.4th
109. We discussed Wallace in Snoeck I but found the facts
distinguishable as to certain of Snoeck’s arguments. (See
Snoeck I.)
14
than . . . the five minutes I told you ten minutes ago,” but let
Smith “take another minute and address whichever one you
think is most important.” Smith read from the first three
statements, arguing he didn’t know why they were “worthy
of cutting fees” or “what the problem [wa]s.”
Defense counsel submitted, and the court adopted its
tentative as its final ruling. Smith then asked for “a statement
of decision that explains why the statements that the court
selected are worthy of fee cutting under the authority cited by
the court?” The court noted no statement of decision is required
in attorney fee motions and adjourned the proceeding. Snoeck
filed a notice of appeal on June 7, 2022.
Five months later, on November 8, 2022, Smith sent
defense counsel an email entitled, “Your most egregious and
successful attempt to cause a court to abuse it[s] authority.”
Smith wrote, “Do any of you know what rule of law the trial court
was using to define the selections of emails you used to add
another appeal to this litigation . . . slash reasonable FEHA fees
by $457,000 based on some rule only he knows?” He sent another
email on November 29: “I’ll take that as a: [¶] ‘We have no idea
what rule he was applying, as we cited no authority in our brief
for a reason—we had none.’ Not that I would quote you on my
attempt to articulate your position, but it seems the inescapable
conclusion here—no rule, just abuse. [¶] Fair?”8
With its respondent’s brief, ExakTime filed a motion
asking this court to take additional evidence under Code of Civil
Procedure section 909 and rule 8.252(c) of 18 emails—including
8 Snoeck included these emails in his appellant’s appendix.
For what purpose, we cannot tell.
15
the two described above—Smith sent defense counsel after the
trial court issued its April 18, 2022 order. ExakTime argues
the evidence is relevant to show “Snoeck’s counsel’s uncivil
conduct has continued since the order was issued,” and further
demonstrates the trial court acted within its discretion. We deny
the motion. Nevertheless, we consider the November 8 and 29,
2022 emails, as Snoeck himself included them in his appellant’s
appendix.
5. Snoeck’s belated requests for judicial notice
On July 7, 2023, three court days before oral argument,
Snoeck moved this court to take judicial notice of what he
asserted were excerpts from the record filed in Snoeck I. The
pages Snoeck attached to his motion were not as they appeared
in the prior record—counsel had altered the documents by
adding argumentative margin notes and highlighting certain
text. We deny Snoeck’s motion. On July 10, two days before
oral argument, Snoeck filed another motion, this time asking us
to take judicial notice of orders the trial court filed in other cases.
The orders are irrelevant to this appeal. We deny this second
motion, as well.
DISCUSSION
Snoeck contends the trial court erred in reducing his
attorney fees by $457,863 to account for his counsel’s incivility
because: the fee reduction was not associated with any costs
and thus was impermissibly imposed to punish Smith; the
court had no legal or inherent authority to shift attorney fees
as an “incivility sanction”; Smith’s emails were “repeated
attempts . . . to persuade ExakTime’s counsel to correct their
misrepresentations of facts and law to the court”; the court’s
shifting of fees for incivility undermined the FEHA’s purpose;
16
reducing the fee award for Smith’s uncivil email communications
violated his First Amendment right to free speech; the court
violated Smith’s due process rights; and any “ ‘civility rule’ ”
would be void for vagueness.
1. Applicable law and standard of review
Under the FEHA, “the court, in its discretion, may award
to the prevailing party . . . reasonable attorney’s fees and costs.”
(Gov. Code, § 12965, subd. (c)(6).) “Because fee awards to
prevailing FEHA plaintiffs promote the important public policy
in favor of eliminating discrimination in the workplace [citation],
a ‘ “prevailing plaintiff ‘should ordinarily recover an attorney’s
fee unless special circumstances would render such an
award unjust.’ ” ’ [Citations.] ‘ “A fee request that appears
unreasonably inflated is a special circumstance permitting
the trial court to reduce the award or deny one altogether.” ’
[Citation.]” (Vines v. O'Reilly Auto Enterprises, LLC (2022)
74 Cal.App.5th 174, 182; Chavez v. City of Los Angeles (2010)
47 Cal.4th 970, 990 (Chavez).)
“In order to calculate an attorney fee award under the
FEHA, courts generally use the well-established lodestar method.
The lodestar amount is simply the product of the number
of hours spent on the case, times an applicable hourly rate.”
(Caldera v. Department of Corrections & Rehabilitation (2020)
48 Cal.App.5th 601, 607; see also Ketchum, supra, 24 Cal.4th
at p. 1133 [the “lodestar figure [is] based on the reasonable
hours spent, multiplied by the hourly prevailing rate for private
attorneys in the community conducting noncontingent litigation
of the same type”].) “ ‘The trial court then has the discretion
to increase or reduce the lodestar figure by applying a positive
or negative “ ‘multiplier’ ” based on a variety of factors.’ ” (Taylor
17
v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249;
Chavez, supra, 47 Cal.4th at p. 985 [“the resulting [lodestar]
dollar amount is then adjusted upward or downward by taking
various relevant factors into account”]; Ketchum, at p. 1134.)
Those factors include, among others, the novelty and difficulty
of the issues presented, the skill demonstrated in litigating them,
and the contingent nature of the fee award. (Ketchum, at p. 1132;
Karton, supra, 61 Cal.App.5th at p. 744.)
“ ‘A trial court may not rubberstamp a request for
attorney fees, but must determine the number of hours
reasonably expended.’ ” (Morris v. Hyundai Motor America
(2019) 41 Cal.App.5th 24, 38 (Morris).) Nevertheless, “[a] trial
court is not required to state each charge it finds reasonable
or unreasonable. A reduced award might be fully justified by
a general observation that an attorney overlitigated a case.”
(Karton, supra, 61 Cal.App.5th at p. 744.) Thus, “ ‘when a
“ ‘voluminous fee application’ ” is made . . . the court may . . .
“ ‘make across-the-board percentage cuts either in the number
of hours claimed or in the final lodestar figure.’ ” ’ ” (Morris,
at p. 40.) “But the court must clearly explain its reasons
for choosing the particular negative multiplier that it chose;
otherwise, the reviewing court is unable to determine that
the court had valid, specific reasons for its across-the-board
percentage reduction.” (Warren v. Kia Motors America, Inc.
(2018) 30 Cal.App.5th 24, 41 (Warren).) The trial court is
not required to issue a statement of decision with regard to
a fee award, however. (Ketchum, supra, 24 Cal.4th at p. 1140.)
“We review attorney fee awards for abuse of discretion.
An experienced trial judge is in the best position to evaluate
the value of professional services rendered in the trial court.
18
We presume the fee approved by the trial court is reasonable.
We will not disturb the trial court’s judgment unless it is clearly
wrong. The burden is on the objector to show error.” (Karton,
supra, 61 Cal.App.5th at p. 743.) “No established criteria
calibrate the precise size and direction of the multiplier, thus
implying considerable deference to the trial court decisionmaking
about attorney fee awards.” (Id. at p. 745.)
Moreover, “this court must presume that the trial court
considered all factors in reaching its decision, ‘even though the
court may not have mentioned or discussed them in its written
ruling.’ ” (Mikhaeilpoor v. BMW of North America, LLC (2020)
48 Cal.App.5th 240, 255 (Mikhaeilpoor).) We have “no authority
to disturb the trial court’s factual findings if they are supported
by substantial evidence.” (Ibid.)
2. The record shows Smith acted uncivilly, and his
incivility was unjustified
Snoeck argues the court impermissibly applied its
downward multiplier to punish Smith for violating a “fictional”
“ ‘civility’ rule.” Incivility may not serve as a basis for attorney
discipline by the state bar—yet—but all licensed California
attorneys are expected to conduct themselves in a civil manner.9
9 The California Civility Task Force’s (CCTF) initial
September 2021 report recommended the State Bar amend its
disciplinary rules to prohibit “repeated incivility and clarify[ ]
that civility is not inconsistent with zealous representation.”
(Cal. Civility Task Force, Beyond the Oath: Recommendations
for Improving Civility (Sept. 2021) p. 3 <https://caljudges.org/
docs/PDF/California%20Civility%20Task%20Force%20Report%20
9.10.21.pdf> [as of Sept. 29, 2023], archived at <https://perma.cc/
DVT3-9B2L>.) After receiving public comment on such a
19
Since 2014, the oath new attorneys of this state must take
requires them to “vow to treat opposing counsel with ‘dignity,
courtesy, and integrity.’ ” (Lasalle v. Vogel (2019) 36 Cal.App.5th
127, 134 (Lasalle).) Although Smith asserts he took the attorney
oath before it was so revised, as an officer of the court he owed
the court and opposing counsel “ ‘professional courtesy.’ ”
(Id. at p. 132, quoting Lossing v. Superior Court (1989) 207
Cal.App.3d 635, 641 [attorneys’ “ ‘responsibilities as officers
of the court include professional courtesy to the court and
to opposing counsel’ ”].) Rather than a new requirement,
the “ ‘civility oath’ ” added by the rules in 2014 “serves as
an important reminder to lawyers of their general ethical
responsibilities in the pursuit of all their professional affairs,
including litigation.” (People v. Shazier (2014) 60 Cal.4th 109,
147, fn. 17, italics added.)10 As the court stated in Karton, civility
proposed rule, the Office of Professional Competence asked
the State Bar Board of Trustees to approve, among other
amendments, adding rule 8.4.2 to the Rules of Professional
Conduct, which would prohibit a lawyer from engaging in
incivility in the practice of law. (See Erika Doherty, State Bar
Office of Prof. Competence, mem. to State Bar Bd. of Trustees
(State Bar mem.), July 20, 2023 at p. 11 & Attachment E, p. 3
<https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem
1000031188.pdf> [as of Sept. 29, 2023], archived at <https://
perma.cc/8JMF-A3U3>.)
10 At the CCTF’s recommendation, the State Bar also received
public comment on, and the Board of Trustees has been asked
to approve, an amendment to California Rules of Court, rule 9.7
requiring all licensed attorneys on active status to “submit
a declaration containing” the civility language added to the
20
“is an ethical component of professionalism,” and it “is socially
advantageous [as] it lowers the costs of dispute resolution.”
(Karton, supra, 61 Cal.App.5th at p. 747.)11
Substantial evidence supports the trial court’s finding
that Smith was uncivil toward opposing counsel and the court,
and his “ad hominem attacks were unnecessary for the zealous
representation of his client.” ExakTime presented undisputed
evidence showing Smith accused its individual attorneys of
telling the courts “lies,” committing “fraud” and a “brazen con,”
making “misrepresentations” to the trial court and this court,
engaging in “sleazy” and “cringeworthy” conduct, and “dup[ing]
the court of appeal.” Snoeck’s briefing in the trial court also
accused ExakTime of having “successfully used deliberate
misrepresentations of law and fact” (italics omitted), “engaged
in a knowing fraud on the trial court,” and “engaged in calculated
misrepresentations to the courts in this case.” And, in his
current briefing to this court, Snoeck continues to accuse
ExakTime’s counsel of making “intentional, calculated, and
attorney’s oath and annually “reaffirm the civility pledge.”
(See State Bar mem. at p. 10 & Attachment A, p. 1.)
11 ExakTime argues the civility requirement, as explained
in Lasalle, supra, 36 Cal.App.5th at p. 130, is based on section
583.130 of the Code of Civil Procedure, which states the policy
of this state is that “all parties shall cooperate in bringing [an]
action to trial or other disposition.” The court invoked that
section, however, in discussing the ethical obligation to warn
opposing counsel before taking a default. (Lasalle, at pp. 135,
137; Code Civ. Proc., § 583.130, Law Revision Com. coms.
[§ 583.130 “is consistent with statements in the cases of the
preference for trial on the merits”].)
21
repeated misstatements of law and fact to the court,” presenting
a “fraudulent defense,” telling a “lie,” relying on “a second fraud”
in this court, and “lack[ing] . . . integrity.”
Despite these express condemnations of defense counsel’s
character, at the fee hearing Smith came across as almost
incredulous that his communications with opposing counsel
would be considered uncivil. He claimed not to know how certain
statements were “worthy of cutting fees” and “d[id]n’t see what
the problem [wa]s.”
Smith also acted with incivility toward the trial court.
The court itself described Smith’s tone during the October
2019 JNOV/motion for new trial hearing as “ ‘belittling and
antagonistic’ ” and having “ ‘verged on the contemptuous.’ ”
Smith certainly belittled the court in his emails to opposing
counsel, claiming defense counsel made “a total fool of” (full
capitals omitted), “exploited,” and “duped” the trial court, and
treated the trial court as an “easy mark.” Snoeck’s current
briefing to this court asserts the trial judge engaged in
“provocative misconduct” that could be a “potential excuse
for any impropriety in [Smith’s] remarks.” And, Smith’s
apparent disdain for the trial court practically jumps off the
pages of the reporter’s transcript of the fee motion hearing.
Snoeck nonetheless contends these uncivil communications
were justified. At the fee hearing, Snoeck repeatedly argued
ExakTime’s attorneys violated their duty of candor by
misrepresenting the law and facts in arguing a mixed motive
analysis applied to ExakTime’s decision to terminate Snoeck’s
employment. Smith argued his emails were necessary to
“call out” defense counsel’s unethical behavior—their purported
misrepresentations to the court—and complained the court
22
had not addressed their ethical lapses. He argued ExakTime
was being “rewarded 450,000-plus dollars for . . . upsetting us
enough to send e-mails calling . . . out” “the unethical conduct
that has not been denied to this date . . . . And to call out the rule
of candor.” He claimed it was defense counsel’s misstatements
that increased the attorney fees in the case.
In Snoeck I, we concluded the trial court erred in giving
the jury the mixed motive instruction proffered by ExakTime,
but Snoeck wasn’t prejudiced. (Snoeck I.) That conclusion—
that this case did not fit the mixed-motive mold—did not imply
or somehow demonstrate that, as Snoeck seems to contend,
defense counsel misrepresented the law and facts to the trial
court or to this court. In litigation, attorneys regularly dispute
how the law—and what specific law—applies to the facts of a
particular case. One side will be wrong. But that does not mean
the side that is “wrong” tried to convince the court to adopt a
theory it knew was legally erroneous. Moreover, an employer
lawfully may terminate an employee’s employment due to the
employee’s disability, e.g., where the employee cannot perform
his or her job even with a reasonable accommodation or where
the requested accommodation is not reasonable. (See Gov. Code,
§ 12940, subd. (a)(1); Hanson v. Lucky Stores, Inc. (1999) 74
Cal.App.4th 215, 226–227.) In Snoeck I, we essentially concluded
the jury could have made such a finding. (Snoeck I.) We need
not repeat that analysis here.
Suffice it to say Snoeck disagreed. He argued to the
trial court, as he did in his petition for rehearing to this court,
ExakTime’s counsel falsely stated the jury could have found
Snoeck would have been unable to return to work. We
already rejected this contention in denying Snoeck’s petition
23
for rehearing. In affirming the judgment, we had concluded—
on the record before us—the jury could have made this finding.
And, to make this record clear, we were not “duped” in so
finding.12 We remind plaintiff’s counsel there has been no
finding that defense counsel misrepresented the law or facts
to the trial court or to this court.
Snoeck also argues Smith’s accusatory emails to defense
counsel were effective because ExakTime changed its tactics
on appeal, and its counsel never denied Smith’s accusations.
First, ExakTime’s focus on different arguments on appeal is
not an admission of wrongdoing. Respondent’s counsel’s job
on appeal is to show no prejudicial error occurred, not to retry
the underlying case. Second, ExakTime’s counsel had no
obligation to respond to Smith’s accusations and ad hominem
attacks. Indeed, as Smith sent several of those emails well after
the close of business or on the weekend, it seems unlikely he
expected counsel to respond. And, many of his emails posed
rhetorical questions or personal musings.13 In any event, that
12 We also take issue with Snoeck’s accusation that this court
has “sat on” and is “slow-playing this appeal” in his petition
to transfer filed with the California Supreme Court. Snoeck
initially missed the deadline to file his opening brief. The case
was not fully briefed until April. This court set the matter for
argument on the first date available considering other pending
matters and court business.
13 Snoeck’s briefs filed with this court also are peppered with
rhetorical questions and side comments. For example, “Also,
someone might want to inform the State Bar, The Civility Task
Force, and all lawyers and judges – CCP 583.130 has, according
to ExakTime, prohibited uncivil emails outside of court with
24
defense counsel did not deny Smith’s accusations neither equates
to a tacit admission that they misrepresented the law or facts—
or made false statements—nor compels a finding that they did.
Defense counsel very well could have decided—and rightfully so
—any response to Snoeck’s counsel would have turned into an
unproductive and juvenile “did not, did so” sparring match.
Litigation by its nature is contentious; the parties are
in court because they do not agree. One side’s frustration with
the other side’s legal theory is understandable. Certainly,
attorneys must advocate for their clients’ positions, point out the
flaws in opposing counsel’s argument, and express disagreement
with the court. But Snoeck’s counsel’s frustration did not give
him a license to personally attack defense counsel and belittle
the trial court. Smith’s incivility does not reflect persuasive
advocacy. A reasonable attorney would not believe that
communicating with opposing counsel in such a way would
“bring them around,” so to speak. Nor does antagonizing the
trial court help further one’s client’s cause. In short, Smith’s
beratement of opposing counsel and belittling of the trial court
were unnecessary to advocate zealously on Snoeck’s behalf.
3. The court had discretion to apply a negative
multiplier to account for counsel’s incivility
“The benchmark in determining attorney fees is
reasonableness.” (Karton, supra, 61 Cal.App.5th at p. 744.)
In Karton, a trial court limited prevailing plaintiffs’ recovery of
statutory attorney fees to about one third of the lodestar amount
punishment to be decoded at court’s whim since 1984 (when
it was enacted). Who knew?” (Original italics.) Comments like
these are not helpful. They have no place in appellate briefing.
25
they had requested, after it found the requested fees were
unreasonable—in part due to counsel’s overlitigation of the
matter and lack of civility in plaintiffs’ briefing. (Id. at pp. 738,
741–743.)
The appellate court’s opinion affirming the order begins,
“Trial judges deciding motions for attorney fees properly may
consider whether the attorney seeking the fee has become
personally embroiled and has, therefore, overlitigated the case.
Similarly, judges permissibly may consider whether an attorney’s
incivility in litigation has affected the litigation costs. [¶] Here,
the trial judge found . . . [the] fee motion triggered these
concerns.” (Karton, supra, 61 Cal.App.5th at p. 738.)
At the attorney fee hearing, Snoeck latched on to this
introduction. As he did below, he essentially argues Karton
supports reducing attorney fees for incivility only if the attorney’s
incivility directly caused increased costs, and his emails could
not have increased costs. He contends “ExakTime did not and
could not show that any fees were incurred by the emails because
Snoeck did not request fees for them and ExakTime did not
respond to them.” Snoeck’s brief also notes Smith’s “tone of voice
at a hearing could not have increased fees,” and seems to argue
the cited emails were not tied to increased costs because most
“were sent post trial.”14 He thus argues the $457,863 fee
reduction was punitive because it was “wholly untethered
to any cost incurred as a result of ‘incivility.’ ”
14 Snoeck’s apparent contention that Smith’s posttrial
incivility would not have increased costs is perplexing. Based
on Smith’s billing records, of 1,239.55 hours submitted on this
case, he spent about 276.4 hours through trial, leaving about
963.15 hours spent posttrial from June 30, 2019 to May 2, 2021.
26
The record supports the trial court’s implied finding that
Smith’s “repeated and apparently intentional lack of civility
throughout the entire course of this litigation”—and seeming
personal embroilment in the matter—resulted in inefficient,
fractious, and thus more costly, litigation. As the court in Karton
aptly observed:
“Incivility between counsel is sand in the gears.
[¶] Incivility can rankle relations and thereby
increase the friction, extent, and cost of
litigation. Calling opposing counsel a liar . . .
can invite destructive reciprocity and
generate needless controversies. Seasoning a
disagreement with avoidable irritants can turn
a minor conflict into a costly and protracted
war. . . . All sides lose, as does the justice
system, which must supervise the hostilities.
[¶] By contrast civility in litigation tends to
be efficient by allowing disputants to focus on
core disagreements and to minimize tangential
distractions. It is a salutary incentive for
counsel in fee-shifting cases to know their
own low blows may return to hit them in the
pocketbook.” (Karton, supra, 61 Cal.App.5th
at p. 747.)
The trial court certainly could have found Smith’s
repeated accusations against defense counsel of lying, knowingly
misrepresenting the law and facts, and engaging in fraud
similarly created unnecessary and time-consuming hostilities
and distractions. Smith spent time and energy writing the
emails, and we can infer defense counsel read them, even if they
27
did not respond.15 Attacks on ExakTime and its counsel also
were included in briefing for which Snoeck’s counsel billed time.
ExakTime’s counsel certainly would have had to spend time
reading that briefing. The court also was bombarded with
plaintiff’s counsel’s attacks on defense counsel and counsel’s
uncivil demeanor toward the court. That Smith continued his
attacks—even months after the trial court entered its attorney
fee order—also demonstrates how personally embroiled he
had become in this litigation.
Smith seems to argue that each statement of his that
the trial court quoted had to be tied to an increase in costs for
the trial court to reduce Snoeck’s attorney fees based on those
statements. The court’s order quotes 13 statements from
12 emails Smith sent that ExakTime provided in its opposition
to the fee motion.16 The court noted, however, that those
statements demonstrated “[s]ome of [Smith’s] incivility.”
In other words, the court did not limit the basis of its order
15 Snoeck asserts he did not request fees for the emails, but
ExakTime argued Smith’s proffered billing records appeared to
include time spent drafting them.
16 Snoeck’s repeated complaint that Smith was not permitted
to address each of the quoted statements is specious. The trial
court gave Smith at least 20 minutes to make his argument.
He spent his time—even after being warned he had only a
few minutes left—rehashing his argument about ExakTime’s
misrepresentations and false statements, the trial and appellate
court’s mistakes, and—in the trial court’s words—the courts
having been “snookered.” The court nevertheless permitted
Smith to “take another minute” to address whichever statement
he thought was most important. Smith addressed three.
28
to the quoted statements but provided them as examples of
Smith’s incivility. Moreover, the court was not required to
identify every unreasonable charge related to Smith’s incivility
to justify a downward adjustment to the lodestar. (Karton,
supra, 61 Cal.App.5th at p. 744; see Morris, supra, 41
Cal.App.5th at p. 40.)
In any event, we do not agree with Snoeck that the trial
court had no authority to reduce the lodestar based on incivility
unless the incivility caused an increase in specific costs. As the
court in Karton noted, “Civility is an aspect of skill.” (Karton,
supra, 61 Cal.App.5th at p. 747.) Smith seems to ignore this
point—that his incivility reflects on his skill as a professional—
a factor our high court has stated may be considered in adjusting
the lodestar. (Ketchum, supra, 24 Cal.4th at p. 1132 [trial
court may adjust the lodestar based on “the skill displayed in
presenting” the legal issues]; Karton, at p. 747 [noting “[a]ttorney
skill is a traditional touchstone for deciding whether to adjust
a lodestar,” which includes civility].)
Thus, although incivility can increase the costs of
litigation, the trial court was not required to find Smith’s
comments directly caused an increase in ExakTime’s or Snoeck’s
fees before applying a downward adjustment to the lodestar.
Courts may adjust the lodestar figure upward or downward
“ ‘in order to fix the fee at the fair market value for the legal
services provided.’ ” (Ketchum, supra, 24 Cal.4th at p. 1134,
quoting PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095 (PLCM Group).) The court thus could have found the
lodestar dollar figure here exceeded the fair market value for
Smith’s legal services given his lack of civility. As the court
in Karton put it, “Excellent lawyers deserve higher fees, and
29
excellent lawyers are civil.” (Karton, supra, 61 Cal.App.5th
at p. 747.) Awarding the same amount of attorney fees to an
uncivil lawyer as one who is civil thus would not constitute
a reasonable fee.
Another court explained, in discussing an upward lodestar
adjustment, “As to the skill of the attorneys in litigating the case,
that factor necessarily is reflected in the lodestar figure. The
more skillful and experienced the attorney the higher his or her
hourly charges will be. It follows that the skill of an attorney
will justify enhancing the lodestar figure only if the skills
exhibited are beyond those that might be expected of attorneys
of comparable expertise or experience.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1176.) Our high court
similarly cautioned, “[A] trial court should award a multiplier
for exceptional representation only when the quality of
representation far exceeds the quality of representation that
would have been provided by an attorney of comparable skill
and experience billing at the hourly rate used in the lodestar
calculation.” (Ketchum, supra, 24 Cal.4th at p. 1139.)
Applying the same logic here, a downward departure from
the lodestar figure is justified where the attorney demonstrates
he is less skilled than would be expected of an attorney with
comparable expertise or experience, billing at the same rate.
The evidence also supports the trial court’s implied finding that
plaintiff’s counsel presented the issues with less skill—through
his incivility—than would be expected of comparably experienced
attorneys charging $750 per hour who conducted themselves
with civility. Under Ketchum and Karton, the trial court thus
had discretion to reduce the lodestar figure based on counsel’s
skill reflected by his incivility. And, as we discussed, the record
30
supports the court’s implied finding that an attorney of similar
experience would not have believed making personal attacks on
opposing counsel, and repeating those accusations to the court,
would be an effective strategy to persuade opposing counsel its
position was wrong or to persuade the court his client’s position
was right.
4. The record supports the court having reduced the
adjusted lodestar for an appropriate, case-specific
reason
As we noted, “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.” (Warren, supra, 30
Cal.App.5th at p. 37.) That way, a reviewing court can determine
if the trial court reduced the fee award for valid reasons. (Id.
at p. 41.) The trial court did so here. It specifically explained
it was applying the .4 negative multiplier to account for counsel’s
“repeated and apparently intentional lack of civility throughout
the entire course of this litigation.” And, before doing so—
citing Karton—the court specifically noted, “Civility is not just
a moral good. ‘Attorney skill is a traditional touchstone for
deciding whether to adjust a lodestar. . . . Civility is an aspect
of skill.’ ” The court’s reason for applying the .4 negative
multiplier thus was clear and, as we discussed, it was valid.
(Cf. Warren, at pp. 40–41 [remanding matter in consumer
protection case where it was unclear to what extent the court’s
application of a negative .33 multiplier to reduce statutory
attorney fee award was based on stated impermissible reason—
tying amount of fees to plaintiff’s modest damages award—and
31
other permissible reasons the court gave to arrive at a reasonable
fee].)
Snoeck notes that, after discussing the Ketchum factors and
ExakTime’s arguments––including that counsel’s requested
hours were not credible due to “ ‘improper and unprofessional
conduct’ ”––the court stated it had “ ‘consider[ed] all the relevant
factors’ ” and applied the 20 percent reduction “ ‘to address the
above concerns.’ ” (Italics and boldface type omitted.) Snoeck
thus argues the court already had accounted for attorney skill
and unprofessionalism when it initially reduced the lodestar
figure.
We do not agree. The court’s order is clear and methodical.
The court first reduced plaintiff’s requested lodestar figure by
20 percent to address various concerns with the reasonableness
of the number of hours plaintiff’s counsel claimed, including—
among other factors—overstaffing, excessive and vague billing,
duplicative work, and the degree of plaintiff’s success. The
court then applied a positive multiplier to the lodestar figure
it calculated to account for the contingent nature of the attorney
fees and plaintiff’s counsel’s delayed payment. After making
those calculations, the court specifically addressed counsel’s
incivility under a separate heading. We therefore can conclude
the court found the adjusted lodestar—after applying the
1.2 positive multiplier—did not reflect a reasonable fee award
in light of plaintiff’s counsel’s sub-par skill (due to his incivility)
in presenting the issues. Moreover, in determining the initial
lodestar amount, the court accepted Snoeck’s attorneys’ rates as
within the prevailing market rates given their “prior experience.”
The court thus had not adjusted the lodestar to account for the
32
effect counsel’s incivility had on those otherwise reasonable
hourly rates until it applied the .4 negative multiplier.
Snoeck nevertheless insists the court applied the .4
multiplier as a sanction. A trial court may not reduce attorney
fees “merely for the purpose of punishing” plaintiff or plaintiff’s
counsel. (Ketchum, supra, 24 Cal.4th at p. 1142; EnPalm, LLC
v. Teitler (2008) 162 Cal.App.4th 770, 775 & fn. 5.) We do not
agree with Snoeck’s contention, however, that the court reduced
the lodestar figure to punish plaintiff’s counsel for his First
Amendment protected communications, litigation strategy,
or misconduct. After determining the lodestar figure, “the
trial court was entitled to consider whether that sum should
be reduced to a reasonable figure under the applicable equitable
principles.” (EnPalm, at p. 774.) In EnPalm, appellants—
prevailing parties entitled to contractual attorney fees—argued
the trial court reduced their attorney fees as punishment for
a party’s “litigation misconduct.” (Id. at pp. 772, 775.) The
appellate court agreed a trial court may not reduce a prevailing
party’s attorney fees “for purely subjective reasons, such as
its views on the merits of the case, or antipathy toward a party,
her counsel, or counsel’s litigation strategy . . . [, or] solely to
punish a party for such reasons.” (Id. at p. 775, fn. 5.) The court
there affirmed the trial court’s reduction of the lodestar sum,
however, because the party’s litigation conduct rendered most
of the claimed fees unnecessary. (Id. at pp. 772–773, 775, fn. 5.)
We are convinced the trial court did not choose to apply
the negative .4 multiplier to sanction or punish plaintiff’s
counsel. The court properly followed the lodestar adjustment
method to arrive at a reasonable attorney fee award given
the relevant case-specific factors that weighed in favor of both
33
augmenting and diminishing the lodestar figure. We do not read
the court’s statements about Smith’s incivility as disapproving
of his litigation strategy—or seeking to punish Smith or Snoeck—
but as a commentary on Smith’s skill in executing that strategy
in light of his incivility.
Snoeck also seems to contend the court’s reliance on
Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th
1265—which involved sanctions rather than the reduction of
an attorney fee award—demonstrates it imposed the .4 negative
multiplier to punish Smith.17 The court quoted the following
passage from that case: “The absence of civility displayed
by some practitioners heightens stress and debases the legal
profession. Those attorneys who allow their personal animosity
for an opposing counsel or an opposing party to infect a case
damage their reputations and blemish the dignity of the
profession they have taken an oath to uphold.” (Id. at pp. 1266–
1267 [affirming order granting terminating sanctions based
on a self-represented attorney’s threats and open contempt for
the court].) Nevertheless, we can infer the court cited the case to
demonstrate the importance of civility in litigation, not to signal
it was applying the negative multiplier to sanction plaintiff’s
17 Smith insinuates the court chose to reduce the lodestar
by 40 percent because that amount is close to the fees
attributable to Smith’s claimed hours. Smith submitted time
records indicating he spent 1,239.55 hours working on the case—
including Snoeck’s appeals—from March 23, 2019 through May 2,
2021. He asked for only 675 of those hours to be included in
the lodestar; we presume he recognized the total hours he spent
was unreasonable. At $750 per hour, 675 hours is equivalent
to $506,250.
34
counsel. Moreover, the court’s order specifically recognized
civility was not just a moral good but an aspect of attorney skill.
And, as discussed, ample evidence supports the court’s reduction
of the lodestar to account for plaintiff’s counsel’s skill given his
incivility toward opposing counsel and the court. (Cf. Edgerton v.
State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363 [affirming
application of positive multiplier given, in part, “ ‘the skill
displayed by plaintiff’s counsel in overcoming the intransigent
opposition of defendant’ ”].)
Nor did the court contravene the principles of the FEHA
in doing so. The lodestar adjustment method—which gives the
court the discretion to augment or diminish the lodestar figure to
arrive at a reasonable fee—is the gold standard for determining
an attorney fee award under the FEHA. (See, e.g., Nichols v.
City of Taft (2007) 155 Cal.App.4th 1233, 1240 [court determines
reasonable fee award under fee-shifting statutes including FEHA
first “by deciding ‘the reasonable hours spent’ on the case and
multiplying that number by ‘the hourly prevailing rate for
private attorneys in the community’ ” and then may “adjust the
lodestar figure in light of a number of relevant factors that weigh
in favor of augmentation or diminution”]; see also Chavez, supra,47 Cal.4th at pp. 976, 985 [recognizing courts compute attorney
fees awarded under the FEHA “based on the lodestar adjustment
method,” which permits the trial court to adjust its calculation
of the lodestar dollar amount “upward or downward by taking
various relevant factors into account” and affirming denial
of FEHA plaintiff’s fees under the circumstances]; Flannery
v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647
(Flannery) [explaining trial court’s exercise of discretion in
awarding attorney fees under the FEHA “must be based on
35
a proper utilization of the lodestar adjustment method, both
to determine the lodestar figure and to analyze the factors that
might justify application of a multiplier” and finding error in
court’s application of a positive multiplier when it appeared
already to have accounted for the factors it reasoned supported
a multiplier when it set the lodestar counsel’s hourly rate].)
Snoeck nevertheless contends the court’s application of
the downward multiplier undermined the FEHA’s purposes
and impermissibly shifted fees to defendant. None of the cases
on which Snoeck relies supports this position. For example,
in Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11
Cal.5th 918, 949, our supreme court noted the Legislature
made clear the “ ‘FEHA provides for an award of attorneys’ fees
to a prevailing plaintiff, but not to a defendant except under
narrow circumstances,’ in order to ‘reflect[ ] the public policy
that society should incentivize enforcement of our civil rights
laws.’ ” In other words, the FEHA provides an incentive for
counsel to take plaintiffs’ cases by awarding prevailing plaintiffs
fees and costs and ensuring plaintiffs, if they lose, are not equally
liable for defendants’ fees and costs, unless their claims are
frivolous. The cases on which Snoeck relies merely state this
policy; they do not preclude the reduction of a prevailing FEHA
plaintiff’s requested attorney fees as somehow impermissibly
shifting fees. (See Williams v. Chino Valley Independent Fire
Dist. (2015) 61 Cal.4th 97, 115 (Williams) [holding, as with
attorney fees, a prevailing FEHA defendant should not be
awarded costs “unless the court finds the action was objectively
without foundation when brought, or the plaintiff continued
36
to litigate after it clearly became so”]; and Pollock, at pp. 950–951
[same with appellate costs and fees].)18
As the appellate court in Horsford v. Board of Trustees
of California State University (2005) 132 Cal.App.4th 359, 395
—another case on which Snoeck relies—reiterated, a trial court
first must base its calculation on the actual hours counsel spent
on the case, “less those that result from inefficient or duplicative
use of time. [Citation.] Then the court must adjust the resulting
fee to fulfill the statutory purpose of bringing ‘the financial
incentives for attorneys enforcing important constitutional rights
. . . into line with incentives they have to undertake claims for
which they are paid on a fee-for-service basis.’ ” (Citing Ketchum,
supra, 24 Cal.4th at pp. 1132–1133.)19 That’s exactly what the
trial court did here. It reduced counsel’s hours for overbilling
and duplicative work and then applied a 1.2 multiplier to account
for Smith’s contingent fee. That the court went on to reduce the
award to arrive at a reasonable fee based on counsel’s diminished
18 Snoeck also relies on Flannery v. Prentice (2001) 26 Cal.4th
572. But there, our high court held the ownership of “unassigned
attorney fees” awarded under the FEHA vested “in counsel rather
than the litigant (to the extent fees are not otherwise paid).” (Id.
at pp. 584–585 [noting vesting ownership of FEHA fees in counsel
in those circumstances “diminish[ed] the risk of noncompensation
or undercompensation, [would] enhance the likelihood that
attorneys who undertake FEHA cases will be fully compensated,
and to that extent [would] enhance the fee provision’s
effectiveness in encouraging counsel to undertake FEHA
litigation”].)
19 Snoeck misattributes part of this quoted text as from
Williams, supra, 61 Cal.4th at pp. 114–115.
37
skill due to his incivility hardly runs afoul of the above policy.
After all, “[a]s the prevailing party, [Snoeck] was entitled only
to ‘reasonable attorney fees’ (Gov. Code, § 12965, subd. (b)),
not reasonable fees plus a windfall.” (Flannery, supra, 61
Cal.App.4th at p. 647.) Accordingly, the court’s reduction
of the adjusted lodestar figure by 40 percent did not violate
the FEHA or undermine its principles.
5. The court’s reduction of the adjusted lodestar
by 40 percent does not shock the conscience
As to the amount of that downward adjustment, on this
record, we are not convinced the court was clearly wrong in
determining a .4 negative multiplier would “fix” the adjusted
lodestar figure “at the fair market value for the legal services
provided” given counsel’s incivility. (Sonoma Land Trust v.
Thompson (2021) 63 Cal.App.5th 978, 983.) The trial judge was
the best judge of the value of plaintiff’s counsel’s professional
services rendered in his court. (See PLCM Group, supra,22 Cal.4th at p. 1095; Ketchum, supra, 24 Cal.4th at p. 1132.)
We cannot say the amount awarded here was “ ‘ “so . . . small
that [it] shocks the conscience and suggests that passion or
prejudice influenced the determination.” ’ ” (Mikhaeilpoor,
supra, 48 Cal.App.5th at p. 246.)
By way of comparison, the trial court in Karton reduced
the lodestar figure by two-thirds—awarding attorney fees for
200 of 600 hours counsel spent. (Karton, supra, 61 Cal.App.5th
at p. 743.) The court noted the lack of civility in plaintiffs’
counsel’s briefing, describing it as “ ‘replete with attacks on
defense counsel such as that[:] defense counsel filed “knowingly
false claims of witness tampering[;]” “her comments were
frivolous[;]” [and] something was “typical of the improper tactics
38
employed by defendants and their counsel.” ’ ” (Id. at pp. 741–
742.) Rather than apply a separate multiplier to account for
that incivility as the court did here, the court in Karton applied
one overall reduction of almost 67 percent to account for
several factors, including the simplicity of the issues, plaintiff’s
overlitigation of a relatively small dispute in part due to the
plaintiff-attorney’s “personal embroilment in the matter,” and
the lack of civility in plaintiffs’ briefing. (Id. at pp. 741–743, 746–
747.) In the end, plaintiffs in Karton received only 33 percent
of their attorney fees, whereas Snoeck’s final award constituted
about 57 percent of his claimed lodestar fees. As we cannot
conclude no reasonable judge would have made the same
downward adjustment as the trial court did here under the
circumstances, we find no abuse of discretion.
6. Snoeck’s other arguments are untenable
Snoeck’s remaining arguments are grounded on his
contention the court reduced his counsel’s attorney fees as a
sanction or punishment. As we have concluded the court imposed
the negative multiplier based on a permissible factor—not as
a sanction or to punish Smith—and did not abuse its discretion
in setting the negative multiplier at .4, they also fail.
First, as the court did not impermissibly reduce or shift
fees to punish or sanction Smith or his client, it also did not
deprive Smith of any purported due process rights in reducing
his requested attorney fees. Similarly, the court did not violate
Smith’s First Amendment rights by punishing him for advocating
his client’s interests. As discussed, the court did not sanction
Smith’s speech. Rather, the court implicitly found plaintiff’s
attorney fees were inflated when considering the negative effect
counsel’s incivility had on his skill in presenting the issues.
39
(See, e.g., Mikhaeilpoor, supra, 48 Cal.App.5th at p. 246
[reviewing court “infers that a request for fees is inflated when
the trial court substantially reduces the requested amount”].)
And, as we discussed, the record supports the trial court’s finding
that Smith’s uncivil communications and ad hominem attacks
were not necessary for the zealous representation of his client.
Finally, as the court did not sanction Smith for misconduct under
a “ ‘civility rule,’ ” as Snoeck describes it, we need not consider
whether a civility rule would be void for vagueness.
DISPOSITION
We affirm the trial court’s April 18, 2022 order awarding
attorney fees. The parties are to bear their own costs on appeal.
EGERTON, J.
We concur:
EDMON, P.J. HEIDEL, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
40
Filed 10/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
STEVE SNOECK, B321566
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. BC708964
EXAKTIME INNOVATIONS, INC., ORDER PUBLISHING OPINION
AND DENYING PETITION
Defendant and Respondent. FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on October 2, 2023, was
not certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports.
Appellant’s petition for rehearing, filed on October 17, 2023, is denied.
There is no change in the judgment.
________________________________________________________________________
EGERTON, J. EDMON, P. J. HEIDEL, J.

Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.