IN THE SUPREME COURT OF CALIFORNIA
ROBERT CHAVEZ,
Plaintiff and Appellant,
S162313
v.
Ct.App. 2/8 B192375
CITY OF LOS ANGELES et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BC324514
____________________________________)
“Except as otherwise expressly provided by statute, a prevailing party is
entitled as a matter of right to recover costs in any action or proceeding.” (Code
Civ. Proc., § 1032, subd. (b).) The litigation costs that the prevailing party may
recover include attorney fees when recovery of such fees is authorized by statute.
(Id., § 1033.5, subd. (a)(10)(B).) But when “the prevailing party recovers a
judgment that could have been rendered in a limited civil case,”1 and the action
was not brought as a limited civil case, Code of Civil Procedure section 1033‟s
subdivision (a) (hereafter section 1033(a)) states that “[c]osts or any portion of
claimed costs shall be as determined by the court in its discretion . . . .”
1
Generally speaking, a limited civil case is one that, before the unification of
the municipal and superior courts, would have been within the jurisdiction of a
municipal court. Actions that may be brought as limited civil cases include those
in which the amount in controversy does not exceed $25,000. (See Code Civ.
Proc., §§ 85-86.) Limited civil cases are subject to certain procedural restrictions
intended to control the cost of litigation. (See id., §§ 92-98.)
1
In any action brought under the California Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.), Government Code section 12965‟s
subdivision (b) grants the trial court discretion to award attorney fees to a
prevailing party. This statute has been interpreted to mean that in a FEHA action a
trial court should ordinarily award attorney fees to a prevailing plaintiff unless
special circumstances would render a fee award unjust. (Young v. Exxon Mobil
Corp. (2008) 168 Cal.App.4th 1467, 1474; Steele v. Jensen Instrument Co. (1997)
59 Cal.App.4th 326, 331.) If, as here, a party brings an action under the FEHA
that is not brought as a limited civil case and recovers an amount that could have
been awarded in a limited civil case, does the trial court have discretion under
section 1033(a) to deny that party‟s motion for attorney fees?
Here, the plaintiff brought an action under the FEHA and recovered
damages of $11,500, which is less than half of the $25,000 jurisdictional limit for
a limited civil case (see Code Civ. Proc., § 86). Plaintiff did not bring the action
as a limited civil case, and the trial court, relying on section 1033(a), denied
plaintiff‟s motion seeking an attorney fee award of $870,935.50. On plaintiff‟s
appeal, the Court of Appeal reversed, concluding that “section 1033 does not
apply in actions brought under FEHA.”
We have determined that the Court of Appeal erred in so concluding and
that its judgment should therefore be reversed. As we explain, section 1033(a),
interpreted according to its plain meaning, gives a trial court discretion to deny
attorney fees to a plaintiff who prevails on a FEHA claim but recovers an amount
that could have been recovered in a limited civil case. In exercising that
discretion, however, the trial court must give due consideration to the policies and
objectives of the FEHA in general and of its attorney fee provision in particular.
Here, we further conclude that, in light of plaintiff‟s minimal success and grossly
2
inflated attorney fee request, the trial court did not abuse its discretion in denying
attorney fees.
I
The appellate record in this case does not include reporters‟ transcripts of
trial proceedings. Instead, it includes documents filed in the action and a
reporter‟s transcript of the hearing on plaintiff‟s motion for attorney fees. In their
briefs filed in the Court of Appeal and in this court, neither party has provided a
factual narrative of the dispute underlying the lawsuit, nor did the Court of
Appeal‟s opinion contain such a narrative. To provide a more complete
perspective on the issue presented here, the following facts have been gleaned
from the appellate record.
In November 1989, defendant City of Los Angeles (City) hired plaintiff
Robert Chavez as a police officer in the Los Angeles Police Department
(Department). In 1996, while assigned to the Department‟s Southwest Division,
plaintiff was accused of stealing payroll checks. After a lengthy investigation, the
Department determined that plaintiff was not the officer who had stolen the
checks.
In February 1997, plaintiff was transferred to the Department‟s Hollenbeck
Division. There, plaintiff told his captain that he was under surveillance by the
Department‟s Internal Affairs Group. Concerned that plaintiff appeared to have
paranoid beliefs, the captain ordered him to be seen by the Department‟s
Behavioral Science Services unit. Between April 1997 and September 1998,
plaintiff attended 10 sessions with Behavioral Science Services. Meanwhile, in
September 1997, plaintiff was transferred to the Department‟s 77th Street
Division.
In April 1998, plaintiff filed a lawsuit (Super. Ct. L.A. County, No.
BC189182) against the City and one Sergeant Berglund, alleging claims for
3
defamation, intentional infliction of emotional distress, invasion of privacy, and
civil rights violations, all resulting from the 1996 stolen checks incident. From
December 1998 to May 1999, plaintiff made numerous complaints to the
Department alleging that he was being harassed in retaliation for having filed that
lawsuit. In particular, plaintiff complained that Department helicopters were
hovering above his house, which is located in Alhambra, a city outside the
Department‟s jurisdiction.
On April 14, 1999, in response to a silent alarm, plaintiff and other officers
went to a laundromat where they investigated alleged robberies. Two days later,
the laundromat‟s owner lodged a personnel complaint against those officers.2 As
a result, the Department began an investigation of plaintiff‟s conduct at the
laundromat. On May 27, 1999, plaintiff left work on stress leave, under the care
of a psychologist, and did not return to work until March 10, 2000. Plaintiff has
alleged that on several occasions during this stress leave, Department helicopters
again hovered over his Alhambra residence.
On December 21, 1999, the superior court dismissed plaintiff‟s lawsuit
against the City and Sergeant Berglund arising from the false accusation that
plaintiff had stolen payroll checks. On January 10, 2000, plaintiff and his wife
presented to the City a claim for damages allegedly resulting from harassment
and/or surveillance by Department helicopters at their Alhambra home. The
2
Although the appellate record does not include a copy of the laundromat
owner‟s personnel complaint, it appears the owner asserted that the officers had
failed to interview the alleged robbery victim or victims.
4
Department‟s Air Support Division investigated these allegations and determined
they were unfounded.3 On March 1, 2000, the City denied the claim for damages.
On March 10, 2000, when plaintiff returned to work at the Department‟s
77th Street Division, he was served with a written notice that the Department
intended to suspend him for five days for neglect of duty during the laundromat
incident in April 1999.4 Plaintiff resumed patrol duties for three days, but his
supervisors then assigned him to various administrative tasks until he could be
seen and cleared by a staff psychologist of the Department‟s Behavioral Science
Services.
On March 24, 2000, plaintiff submitted to California‟s Department of Fair
Employment and Housing an administrative complaint under the FEHA alleging
unlawful employment discrimination (on the basis of race, color, marital status,
medical condition, national origin/ancestry, and disability), harassment, and
retaliation. In the administrative complaint, as “act or acts of harm,” plaintiff
mentioned his five-day suspension, a “pattern of incidents” at work producing a
hostile environment, an internal affairs investigation, and a “change of medical
leave to personal leave.” The Department of Fair Employment and Housing gave
plaintiff a right to sue notice. (See Gov. Code, § 12965, subd. (b).)
On March 26, 2000, plaintiff requested a transfer from the Department‟s
77th Street Division. On April 26, 2000, Commander Harlan Ward, one of
plaintiff‟s supervisors, approved the transfer request.
3
In fairness to plaintiff, we note that the appellate record includes the
declarations of three of plaintiff‟s neighbors corroborating his assertion that
Department helicopters hovered over his house.
4
The appellate record does not include a copy of the suspension notice. It
appears that the “neglect of duty” was plaintiff‟s failure to interview victims
and/or witnesses at the laundromat.
5
In May 2000, plaintiff and his wife filed a lawsuit (Super. Ct. L.A. County,
No. BC229922) against the City and three of plaintiff‟s supervisors at the 77th
Street Division — Commander Ward and Lieutenants Krejci and Von Lutzow —
alleging employment discrimination, harassment, and retaliation in violation of the
FEHA (as to plaintiff); trespass (as to both plaintiff and his wife); and loss of
consortium (as to plaintiff‟s wife). Plaintiff later amended the complaint in that
action to add causes of action for nuisance and inverse condemnation. Two weeks
after plaintiff and his wife filed the original complaint in that action, Commander
Ward rescinded the order granting plaintiff‟s request to transfer to another
division.
In June 2000, plaintiff submitted another FEHA administrative complaint,
this time alleging that the transfer order was rescinded in retaliation for his May
2000 filing of the lawsuit asserting causes of action under the FEHA against the
City and the three individual defendants. At plaintiff‟s request, the Department of
Fair Employment and Housing immediately gave him a right to sue notice.
In August 2000, plaintiff and his wife filed a complaint in federal district
court against the City, the Department, and five fictitiously named defendants,
asserting a claim for violation of civil rights under sections 1983 and 1988 of title
42 of the United States Code.
In October 2000, plaintiff was transferred from the Department‟s 77th
Street Division to its Southwest Division, where he resumed patrol duties.
In March 2001, plaintiff and his wife asked the federal district court to
exercise pendent jurisdiction over their state law FEHA and nuisance claims. The
City did not oppose the request, which the district court granted. On April 28,
6
2001, plaintiff left work on stress leave again, and as of July 2002 he had not
returned to work.5 On May 15, 2001, plaintiff‟s state court action was dismissed.
In May 2002, in the federal district court, plaintiff agreed to dismissal of his
claim of racial discrimination. In September 2002, the federal district court
granted summary judgment for the defendants. Plaintiff and his wife appealed to
the Ninth Circuit Court of Appeals.
In September 2004, the Ninth Circuit issued a memorandum decision
reversing the summary judgment in part and remanding the matter to the federal
district court. In its decision, the federal appellate court reached these
conclusions: (1) Plaintiff‟s section 1983 civil rights claim failed for lack of
evidence that either the City or the Department had a custom or policy of making
harassing helicopter overflights of officers or citizens; (2) the district court
properly granted summary judgment on plaintiff‟s FEHA claim of a hostile work
environment because the instances of alleged harassment were not sufficiently
severe or pervasive to alter the conditions of plaintiff‟s employment; (3) plaintiff‟s
FEHA claim of retaliation, insofar as it was based on removing him from patrol
duty after his nine-month stress leave or suspending him for five days after
investigation of a citizen complaint, failed because plaintiff did not produce
sufficient evidence to show a retaliatory motive for either of those actions; and
(4) plaintiff and his wife waived the nuisance and invasion of privacy claims by
failing to sufficiently argue them. The Ninth Circuit remanded the matter for the
district court to determine whether the temporary rescission of plaintiff‟s transfer
5
The record does not indicate when, if ever, plaintiff returned to work for the
City as a police officer, although in the complaint that plaintiff filed in November
2004 he described himself as a police officer who was then currently employed by
the City.
7
constituted an adverse employment action and to resolve material factual issues
regarding plaintiff‟s FEHA discrimination claim based on his reassignment from
patrol duty to administrative duty. The Ninth Circuit‟s decision provided that
neither party would recover costs. On remand, the federal district court dismissed
plaintiff‟s remaining FEHA claims without prejudice to refiling them in state
court.
In November 2004, plaintiff filed this lawsuit (Super. Ct. L.A. County, No.
BC324514) against the City, Ward, Krejci, and Von Lutzow, alleging claims
under the FEHA for employment discrimination and harassment on the basis of a
perceived mental disability, and unlawful retaliation for submitting the FEHA
administrative complaints and for filing the state and federal actions asserting the
FEHA claims. In October 2005, the superior court conducted a five-day jury trial
on plaintiff‟s claims. After plaintiff rested, the trial court granted a motion for
nonsuit as to defendant Von Lutzow. On October 14, 2005, the jury returned
special verdicts. Regarding plaintiff‟s FEHA claim of employment discrimination
based on a perceived mental disability, the jury found that neither defendant Ward
nor defendant Krejci perceived plaintiff as having a mental disability, and that the
actions of defendants Ward and Krejci did not cause plaintiff any damage, loss, or
harm. Regarding plaintiff‟s FEHA retaliation claim, the jury found that plaintiff
had engaged in protected activity, that defendant Ward rescinded plaintiff‟s
transfer, that plaintiff‟s protected activity was a motivating factor in defendant
Ward‟s decision to rescind the transfer, and that the transfer rescission proximately
caused plaintiff $1,500 in economic damages “including loss in overtime and cash
detail” and $10,000 in noneconomic damages “including mental suffering and
emotional distress.”
On October 25, 2005, plaintiff filed a motion for costs in the amount of
$13,144.26 and a separate motion for attorney fees in the amount of $436,602.75.
8
In support of the motion for attorney fees, plaintiff‟s attorney submitted a
declaration that included a 40-page itemized statement of the services she had
performed in prosecuting plaintiff‟s claims against the City. She reported a total
of 1,851.43 hours for services beginning on January 12, 2000, and continuing
through October 24, 2005, including services performed in the prosecution of the
previous state and federal lawsuits.
On October 31, 2005, the superior court entered judgment on the jury‟s
special verdicts in plaintiff‟s favor against the City and Ward in the amount of
$11,500. On December 30, 2005, plaintiff filed an amended motion for attorney
fees, correcting errors in the itemized statement and adding a “2x” multiplier to the
“lodestar” calculation, so that the requested fees increased to $870,935.50.
Defendants (the City and Ward) filed their opposition to plaintiff‟s motion for
attorney fees, asserting that plaintiff had “overreached and outrageously inflated
his fee request” and asking that attorney fees be denied altogether or alternatively
reduced to $44,459.37.
After a hearing, the superior court denied the motion for attorney fees. In
its written order, the court noted that plaintiff‟s case at trial had been
“overwhelmingly devoted to liability,” that none of plaintiff‟s witnesses gave any
direct testimony about economic damages, and that plaintiff had offered no
rebuttal to the testimony of defendants‟ expert, who put plaintiff‟s economic loss
resulting from the temporary rescission of his transfer at “just under $1,000.”
According to the court, plaintiff‟s evidence of noneconomic damages “was equally
sparse,” particularly as it related to the temporary rescission of the transfer. After
describing the relevant evidence, the superior court concluded: “The above detail
is provided by the Court to explain its reasoning in applying its discretion under
[section 1033(a)] to deny attorney fees (as costs under [Code Civ. Proc.,
§ 1033.5, subd.] (a)(10)). The court is guided in this also by Steele v. Jensen[,
9
supra,] 59 Cal.App.4th 326, wherein the Court‟s discretion to deny fees was
upheld in a case where the verdict was twice the amount of the instant one. Other
cases cited by Plaintiff during oral argument are inapposite. [¶] Based on the
foregoing, therefore, Plaintiff‟s 2nd Amended Motion for Attorney‟s Fees is
denied.”
On plaintiff‟s appeal from the order denying attorney fees, the Court of
Appeal reversed. It agreed with plaintiff that in denying the motion for attorney
fees the trial court had “applied the wrong statutory standard and abused its
discretion.” The Court of Appeal faulted the trial court for not referring to the
FEHA in its three-page written ruling and for making no express finding of a
special circumstance that justified denying attorney fees to a prevailing FEHA
plaintiff. Asserting that “section 1033 does not apply in actions brought under
FEHA,” the Court of Appeal reasoned that the rationale of section 1033(a) was “to
encourage pursuit of minor grievances in courts of limited jurisdiction” and that
this rationale “is inapposite in statutory discrimination or civil rights actions”
because “[e]ven a modest financial recovery can serve to vindicate a substantial
legal right.” Thus, in the Court of Appeal‟s view, the FEHA and section 1033(a)
“serve laudable but conflicting public policies.” Also, denying attorney fees under
section 1033(a) “would discourage attorneys from taking meritorious cases.”
The Court of Appeal agreed with plaintiff‟s attorney that, as a practical
matter, she could not have filed this action as a limited civil case because, “[e]ven
in its final, more streamlined form,” it “involved two complex causes of action
against four defendants” and if the action had been brought as a limited civil case,
plaintiff “could not have deposed all the named defendants, let alone other
essential witnesses.” The court noted that the City had “flatly resisted all
settlement discussions and never made a substantive offer” and that this had
“forced [plaintiff] to engage in extensive discovery and litigate the action for five
10
years through the state and federal trial and appellate courts.” Without expressing
any opinion on the amount of fees that plaintiff should be awarded, the Court of
Appeal remanded the matter to the trial court “for proper application of
Government Code section 12965, subdivision (b).”
We granted defendants‟ petition for review.
II
This case requires that we determine the proper interaction of two statutory
provisions — section 1033(a) and Government Code section 12965‟s subdivision
(b). We begin with an overview of those provisions.
A. Section 1033(a)
Section 1033(a) provides: “Costs or any portion of claimed costs shall be
as determined by the court in its discretion in a case other than a limited civil case
in accordance with Section 1034 where the prevailing party recovers a judgment
that could have been rendered in a limited civil case.” In other words, section
1033(a) applies when a plaintiff has obtained a judgment for money damages in an
amount (now $25,000 or less) that could have been recovered in a limited civil
case, but the plaintiff did not bring the action as a limited civil case and thus did
not take advantage of the cost- and time-saving advantages of limited civil case
procedures. In this situation, even though a plaintiff who obtains a money
judgment would otherwise be entitled to recover litigation costs as a matter of
right, section 1033(a) gives the trial court discretion to deny, in whole or in part,
the plaintiff‟s recovery of litigation costs.
The origins of this provision can be traced to former sections 1022 and
1025 of the Code of Civil Procedure, as enacted in 1872. Under those former code
sections, a plaintiff who received a money judgment for $300 or more was entitled
to recover costs, but no costs could be recovered by a plaintiff who received a
11
money judgment for a lesser amount. (See Murphy v. Casey (1910) 13 Cal.App.
781, 784.)
Effective January 1, 1934, this subject was addressed by subdivision (a) of
former section 1032 of the Code of Civil Procedure, which stated that a plaintiff
who brought an action for the recovery of money or damages in superior court
could not recover costs “when the judgment is one which could have been
rendered by a municipal or inferior court within the same county or city and
county.” (Stats. 1933, ch. 744, § 191, p. 1901.) One Court of Appeal explained
that the purpose of the provision was “to force plaintiffs to bring their cases in the
inferior courts wherever possible, and to penalize them if they do not do so.”
(Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 316.)
In 1953, the Legislature amended former section 1032 of the Code of Civil
Procedure to provide, in subdivision (d), that “if the prevailing party recovers a
judgment that could have been rendered in a court inferior in jurisdiction in the
county or city and county, the court may at its discretion allow or deny costs to
such prevailing party, or may allow costs in part in such amount as it deems
proper.” (Stats. 1953, ch. 910, § 1, p. 2266, italics added.) This amendment “was
a legislative effort to relax the strict rule that no costs were recoverable by a
plaintiff who selected the wrong court, and to permit the trial judge to allow costs
to a plaintiff in a proper case.” (Young v. General Telephone Co. (1977) 75
Cal.App.3d 177, 182.)
In 1986, the Legislature repealed former section 1032 of the Code of Civil
Procedure and moved the substance of that section‟s subdivision (d) to newly
enacted Code of Civil Procedure section 1033, which as originally enacted read:
“Costs or any portion of claimed costs shall be as determined by the court in its
discretion in accordance with Section 1034 where the prevailing party recovers a
judgment that could have been rendered in a court of lesser jurisdiction.” (Stats.
12
1986, ch. 377, § 11, p. 1579.) In 1998, to accommodate the unification of the
superior and municipal courts, section 1033(a) was amended to its current
wording: “Costs or any portion of claims costs shall be as determined by the court
in its discretion in a case other than a limited civil case in accordance with Section
1034 where the prevailing party recovers a judgment that could have been
rendered in a limited civil case.” (Stats. 1998, ch. 931, § 107.)
The Courts of Appeal have identified factors that a trial court should
ordinarily consider in exercising its discretion under section 1033(a), including the
amount of damages the plaintiff reasonably and in good faith could have expected
to recover and the total amount of costs that the plaintiff incurred. (Dorman v.
DWLC Corp. (1995) 35 Cal.App.4th 1808, 1816-1817; Valentino v. Elliott Sav-On
Gas, Inc. (1988) 201 Cal.App.3d 692, 702; Greenberg v. Pacific Tel. & Tel. Co.
(1979) 97 Cal.App.3d 102, 108.)
B. Government Code Section 12965, Subdivision (b)
In enacting the FEHA, the Legislature sought to safeguard the rights of all
persons to seek, obtain, and hold employment without discrimination on account
of various characteristics, which now include race, religion, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, and sexual orientation. (Gov. Code, § 12920; see Stevenson v. Superior
Court (1997) 16 Cal.4th 880, 891.) Government Code section 12965, subdivision
(b), which authorizes employees to bring civil actions seeking damages for
violations of the FEHA, contains this attorney fee provision: “In actions brought
under this section, the court, in its discretion, may award to the prevailing party
reasonable attorney‟s fees and costs . . . .” In FEHA actions, attorney fee awards,
which make it easier for plaintiffs of limited means to pursue meritorious claims
(Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387), “are
13
intended to provide „fair compensation to the attorneys involved in the litigation at
hand and encourage[] litigation of claims that in the public interest merit
litigation.‟ ” (Flannery v. Prentice (2001) 26 Cal.4th 572, 584.)
In interpreting California‟s FEHA, California courts often look for
guidance to decisions construing federal antidiscrimination laws, including title
VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII).
(State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.)
But federal court interpretations of Title VII are helpful in construing the FEHA
only when the relevant language of the two laws is similar. (State Dept. of Health
Services v. Superior Court, supra, at p. 1040.)
Title VII contains an attorney fee provision with language similar to the
FEHA‟s attorney fee provision. (42 U.S.C. § 2000e-5(k) [“In any action or
proceeding under this subchapter the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney‟s fee . . .”].) Accordingly, in
interpreting the FEHA‟s attorney fee provisions, California courts have looked for
guidance to federal decisions construing Title VII‟s attorney fee provision. (See,
e.g., Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762,
766-771; Hon v. Marshall (1997) 53 Cal.App.4th 470, 475-478.) The United
States Supreme Court has held that, in a Title VII case, a prevailing plaintiff
should ordinarily recover attorney fees unless special circumstances would render
the award unjust, whereas a prevailing defendant may recover attorney fees only
when the plaintiff‟s action was frivolous, unreasonable, without foundation, or
brought in bad faith. (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412,
416-417, 421-422.) California courts have adopted this rule for attorney fee
awards under the FEHA. (Young v. Exxon Mobil Corp., supra, 168 Cal.App.4th
1467, 1474; Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &
14
Shapiro (2001) 91 Cal.App.4th 859, 865; Cummings v. Benco Building Services,
supra, 11 Cal.App.4th 1383, 1386-1388.)
This court has stated that “[i]n deciding whether to, and how to, award fees
under section 12965, subdivision (b), courts will look to the rules set forth in cases
interpreting [Code of Civil Procedure] section 1021.5.” (Tipton-Whittingham v.
City of Los Angeles (2004) 34 Cal.4th 604, 610.) Under Code of Civil Procedure
section 1021.5, if a court determines that attorney fees should be awarded,
computation of those fees is based on the lodestar adjustment method as set forth
in Serrano v. Priest (1977) 20 Cal.3d 25. (Press v. Lucky Stores, Inc. (1983) 34
Cal.3d 311, 321.) Using that method, the trial court first determines a touchstone
or lodestar figure based on a careful compilation of the time spent by, and the
reasonable hourly compensation for, each attorney, and the resulting dollar amount
is then adjusted upward or downward by taking various relevant factors into
account. (Id. at p. 322; see also Flannery v. California Highway Patrol (1998) 61
Cal.App.4th 629, 639.) When using the lodestar method to calculate attorney fees
under the FEHA, the ultimate goal is “to determine a „reasonable‟ attorney fee,
and not to encourage unnecessary litigation of claims that serve no public purpose
either because they have no broad public impact or because they are factually or
legally weak.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1173.)6
6
In construing Code of Civil Procedure section 1021.5‟s attorney fee
provision, this court has not always followed federal court decisions construing
analogous provisions of federal law. (See, e.g., Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553, 568-569.) It has also been observed that “an upward or
downward adjustment from the lodestar figure will be far more common under
California law than under federal law.” (Weeks v. Baker & McKenzie, supra, 63
Cal.App.4th at p. 1173.)
15
III
We consider first whether, as the Court of Appeal concluded, section
1033(a) does not apply to an action brought under the FEHA. The issue presented
is essentially one of statutory construction. When engaged in statutory
construction, our aim is “to ascertain the intent of the enacting legislative body so
that we may adopt the construction that best effectuates the purpose of the law.”
(Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715; accord,
Coachella Valley Mosquito & Vector Control Dist. v. California Public
Employment Relations Bd. (2005) 35 Cal.4th 1072, 1087.) “We first examine the
words themselves because the statutory language is generally the most reliable
indicator of legislative intent.” (Hassan v. Mercy American River Hospital, supra,
at p. 715.) When construing the interaction of two potentially conflicting statutes,
we strive to effectuate the purpose of each by harmonizing them, if possible, in a
way that allows both to be given effect. (Pacific Lumber Co. v. State Water
Resources Control Bd. (2006) 37 Cal.4th 921, 943; Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 324; County of San Bernardino v.
City of San Bernardino (1997) 15 Cal.4th 909, 933.)
In the situation presented here, we perceive no irreconcilable conflict
between section 1033(a) and the FEHA‟s attorney fee provision. In exercising its
discretion under section 1033(a) to grant or deny litigation costs, including
attorney fees, to a plaintiff who has recovered FEHA damages in an amount that
could have been recovered in a limited civil case, the trial court must give due
consideration to the policies and objectives of the FEHA and determine whether
denying attorney fees, in whole or in part, is consistent with those policies and
objectives. If so, the plaintiff‟s failure to take advantage of the time- and cost-
saving features of the limited civil case procedures may be considered a special
circumstance that would render a fee award unjust.
16
In determining whether a FEHA action should have been brought as a
limited civil case, the trial court should consider FEHA‟s underlying policy of
encouraging the assertion of meritorious FEHA claims, and it should evaluate the
entire case in light of the information that was known, or should have been known,
by the plaintiff‟s attorney when the action was initially filed and as it developed
thereafter. (See Code Civ. Proc., § 403.040 [motion to reclassify pending action
as limited civil case].) In making this evaluation, the trial court should exercise
caution to avoid “hindsight bias,” which is the recognized tendency for individuals
to overestimate or exaggerate the predictability of events after they have occurred.
(See Christiansburg Garment Co. v. EEOC, supra, 434 U.S. 412, 421-422
[cautioning courts, in deciding whether to award attorney fees to a prevailing
defendant in an antidiscrimination action, to “resist the understandable temptation
to engage in post hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or without
foundation”]; see also KSR Intern. Co. v. Teleflex Inc. (2007) 550 U.S. 398, 421
[recognizing risk of hindsight bias in patent decisions].) If, based on the available
information, the plaintiff‟s attorney might reasonably have expected to be able to
present substantial evidence supporting a FEHA damages award in an amount
exceeding the damages limit (now $25,000) for a limited civil case, or if the
plaintiff‟s attorney might reasonably have concluded that the action could not be
fairly and effectively litigated as a limited civil case, the trial court should not
deny attorney fees merely because, for example, the trier of fact ultimately
rejected the testimony of the plaintiff‟s witnesses or failed to draw inferences that
were reasonably supported, although not compelled, by the plaintiff‟s evidence.
But if, to the contrary, the trial court is firmly persuaded that the plaintiff‟s
attorney had no reasonable basis to anticipate a FEHA damages award in excess of
the amount recoverable in a limited civil case, and also that the action could have
17
been fairly and effectively litigated as a limited civil case, the trial court may deny,
in whole or in part, the plaintiff‟s claim for attorney fees and other litigation costs.
The Court of Appeal in Steele v. Jensen Instrument Co., supra, 59
Cal.App.4th 326, reached a similar conclusion. There, the plaintiff brought a
FEHA action in superior court against her employer and two individuals, alleging
pregnancy discrimination; a jury trial resulted in a damage award in her favor for
$21,078. (Id. at p. 328.) Because the damage award was less than $25,000, and
thus, at that time (before the unification of the municipal and superior courts),
could have been recovered in municipal court, the trial court, relying on section
1033(a), denied the plaintiff her litigation costs, including attorney fees.7 (Steele
v. Jensen Instrument Co., supra, at pp. 329-330.) The Court of Appeal affirmed.
It acknowledged that the interplay between Code of Civil Procedure section
1033(a) and the FEHA attorney fee provision (Gov. Code, § 12965, subd. (b)) is
complex, but it concluded that when the amount of damages that a FEHA plaintiff
recovers in superior court could have been awarded by a court of lesser
jurisdiction (at that time, the municipal court), the trial court has discretion to deny
costs, including attorney fees, to the plaintiff. (Steele v. Jensen Instrument Co.,
supra, 59 Cal.App.4th at p. 331.)
Here, in support of its conclusion that section 1033(a) does not apply to
FEHA actions, the Court of Appeal reasoned that section 1033(a) “is designed to
encourage pursuit of minor grievances in courts of limited jurisdiction,” whereas a
7
Because the amount the plaintiff recovered in damages was less than the
defendants‟ offer of compromise (Code Civ. Proc., § 998), which the plaintiff had
rejected, the trial court awarded costs to the employer. (Steele v. Jensen
Instrument Co., supra, 59 Cal.App.4th at p. 329.) The Court of Appeal upheld
that award, but that aspect of its decision is not relevant to the issues we address
here.
18
FEHA action is a “bona fide civil rights claim” that “serve[s] to vindicate a
substantial legal right” and therefore can never appropriately be characterized as
“an insignificant grievance.” We disagree. Section 1033(a)‟s purpose is to
encourage plaintiffs to bring their actions as limited civil actions whenever it is
reasonably practicable to do so. (See Young v. General Telephone Co., supra, 75
Cal.App.3d 177, 181 [construing statutory predecessor of section 1033(a)].) This
purpose does not require or involve a characterization of the underlying claim as
major or minor or as significant or insignificant; rather, what it requires is a
realistic appraisal of the amount of damages at issue and whether the action might
fairly have been litigated using the streamlined procedures of limited civil actions.
Furthermore, there is no indication in the statutory provisions governing
FEHA actions or those governing limited civil cases that the Legislature has ever
intended to prohibit the use of limited civil case procedures for the prosecution of
FEHA claims. Code of Civil Procedure section 85, which sets out the criteria for
determining whether an action or special proceeding is to be treated as a limited
civil case, does not mention FEHA claims or prohibit their being litigated as
limited civil cases. Also instructive is Government Code section 12965,
subdivision (b), which authorizes aggrieved parties to file lawsuits asserting
FEHA claims. Before the consolidation of the superior and municipal courts, this
provision granted both superior and municipal courts jurisdiction over actions
asserting FEHA claims. (Gov. Code, former § 12965, subd. (b), as amended by
Stats. 1998, ch. 931, § 183.) As currently worded, this provision merely states that
superior courts have jurisdiction of these actions, without drawing any distinction
between limited and unlimited civil actions. (See id., § 12965, subd. (b), as
amended by Stats. 2003, ch. 62, § 118.)
The Court of Appeal here also reasoned that litigating a FEHA claim is
“invariably expensive and time consuming in terms of the quantity of discovery
19
conducted and the inevitability of summary judgment or other extensive pretrial
motions.” Here also, we disagree. Although extensive discovery may be
conducted in many or even most FEHA actions, this does not mean that elaborate
discovery proceedings are invariably necessary to effectively litigate a FEHA
claim. Moreover, although in limited civil cases the discovery permitted as of
right is restricted (see Code Civ. Proc., § 94), the trial court may authorize
additional discovery upon a showing “that the moving party will be unable to
prosecute or defend the action effectively without the additional discovery” (id.,
§ 95, subd. (a)), or the parties may stipulate to additional discovery (id., § 95,
subd. (b)). And summary judgment motions are permitted in limited civil cases.
(See id., § 92, subd. (e).)
Giving effect to the plain meaning of the statutory language at issue, and
construing the relevant statutory provisions in a way that allows both to be given
effect, we hold, therefore, that section 1033(a), which grants the trial court
discretion to deny costs to a plaintiff who recovers damages that could have been
recovered in a limited civil case, applies to actions asserting FEHA claims.
IV
We now examine the trial court‟s ruling denying attorney fees to plaintiff.
That ruling is subject to the abuse-of-discretion standard of review. (Steele v.
Jensen Instrument Co., supra, 59 Cal.App.4th at p. 331; Cummings v. Benco
Building Services, supra, 11 Cal.App.4th at p. 1387.)
Under federal law, when determining a prevailing plaintiff‟s attorney fee in
an action for violation of civil rights (42 U.S.C. § 1988), the extent of a plaintiff‟s
success is a crucial factor. (Hensley v. Eckerhart (1983) 461 U.S. 424, 440.) If a
plaintiff has prevailed on some claims but not others, fees are not awarded for time
spent litigating claims unrelated to the successful claims, and the trial court
“should award only that amount of fees that is reasonable in relation to the results
20
obtained.” (Ibid.) Although attorney fees need not be strictly proportionate to the
damages recovered (Riverside v. Rivera (1986) 477 U.S. 561, 574), “[w]hen a
plaintiff recovers only nominal damages because of his failure to prove an
essential element of his claim for monetary relief [citation], the only reasonable
fee is usually no fee at all” (Farrar v. Hobby (1992) 506 U.S. 103, 115).
On this point, California law is consistent with federal law. Although fees
are not reduced when a plaintiff prevails on only one of several factually related
and closely intertwined claims (Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413, 431), “under state law as well as federal
law, a reduced fee award is appropriate when a claimant achieves only limited
success” (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249;
accord, Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641,
1674; see also Harrington v. Payroll Entertainment Services, Inc. (2008) 160
Cal.App.4th 589, 594).
Here, the extent of plaintiff‟s success was modest at best. Plaintiff sought
attorney fees for a total of 1,851.43 attorney hours between January 12, 2000, and
October 24, 2005, during which plaintiff‟s attorney brought and litigated on
plaintiff‟s behalf two actions in Los Angeles County Superior Court (No.
BC229922, filed May 12, 2000, and No. BC324514, filed Nov. 15, 2004) and one
action in federal district court (filed Aug. 1, 2000), which also included time spent
on an appeal to the Ninth Circuit. In these actions, plaintiff asserted claims of
employment discrimination, harassment, and retaliation in violation of California‟s
FEHA; violation of civil rights under sections 1983 and 1988 of title 42 of the
United States Code; nuisance; trespass; inverse condemnation; invasion of
privacy; and loss of consortium (as to plaintiff‟s wife). Plaintiff claimed
employment discrimination on the bases of race and perceived mental disability.
The employment actions on which the claims were based included plaintiff‟s five-
21
day suspension resulting from the laundromat incident, his assignment to
administrative duties after his extended stress leave, remarks of supervisors and
coworkers, the alleged helicopter overflights of his house, and the temporary
rescission of the order granting his transfer request. The only claim on which
plaintiff succeeded in recovering damages was the claim that the interdivision
transfer order was temporarily rescinded in retaliation for plaintiff‟s assertion of
his other, ultimately unsuccessful FEHA claims. All of the other claims were
dismissed or found to be lacking in merit.8
Plaintiff does not claim that his success on the single FEHA retaliation
claim had any broad public impact or resulted in significant benefit to anyone
other than himself. Because this single successful claim apparently was not
closely related to or factually intertwined with plaintiff‟s many unsuccessful
claims, the trial court reasonably could and presumably did conclude that plaintiff
was not entitled to attorney fees for time spent litigating those unsuccessful
claims.
Whether plaintiff was entitled to an award of attorney fees for time spent
litigating the single successful claim requires consideration of another established
principle governing attorney fee awards: “A fee request that appears unreasonably
inflated is a special circumstance permitting the trial court to reduce the award or
deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635; accord,
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137.) Here, the trial court reasonably
could and presumably did conclude that plaintiff‟s attorney fee request in the
amount of $870,935.50 for 1,851.43 attorney hours was grossly inflated when
8
The temporary rescission of the interdivision transfer had not yet occurred
when plaintiff brought his May 2000 action in state court. This means, of course,
that all of the claims in that action as initially filed were lacking in merit.
22
considered in light of the single claim on which plaintiff succeeded, the amount of
damages awarded on that claim, and the amount of time an attorney might
reasonably expect to spend in litigating such a claim. This fact alone was
sufficient, in the trial court‟s discretion, to justify denying attorney fees altogether.
Lastly, the trial court could, and did, reasonably conclude that this action
should have been brought as a limited civil case. As the trial court carefully
explained in its statement of decision, plaintiff‟s evidence in support of the FEHA
retaliation claim was seriously deficient on one essential element: damages.
Plaintiff presented no evidence at all of the amount of economic loss caused by the
temporary rescission of the interdivision transfer, and the trial court characterized
plaintiff‟s evidence regarding the emotional distress he suffered as a result of that
rescission as “equally sparse.” Plaintiff does not dispute the accuracy of the trial
court‟s characterization of the evidence relating to damages, nor could he
successfully do so, as the appellate record before us does not include trial
transcripts. The trial court was familiar with all of the trial proceedings and with
the evidence presented at trial. It was therefore in a much better position than this
court, or the Court of Appeal, to determine whether this action could fairly and
effectively have been litigated as a limited civil case and also whether plaintiff‟s
attorney should have realized, well before the action proceeded to trial, that
plaintiff‟s injury was too slight to support a damage recovery in excess of $25,000.
We have no reason to question the trial court‟s implied determinations on these
points. Thus, there was no abuse of discretion in the trial court‟s decision denying
an attorney fee award to plaintiff.
In the explanation for its decision denying plaintiff‟s attorney fee claim, the
trial court did not expressly mention the FEHA. The trial court did state, however,
that in making its ruling it had been “guided by” Steele v. Jensen Instrument Co.,
supra, 59 Cal.App.4th 326, in which the Court of Appeal, after characterizing as
23
“complex” the interplay between section 1033(a) and the FEHA‟s attorney fee
provision, held that section 1033(a) applies in FEHA actions. We conclude that
the trial court‟s explanation of the reasons for its decision to deny plaintiff‟s
attorney fee claim, although not as comprehensive or focused as an appellate court
would prefer, was adequate to support the ruling.
DISPOSITION
The Court of Appeal‟s judgment is reversed.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Chavez v. City of Los Angeles
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 160 Cal.App.4th 410
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S162313Date Filed: January 14, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Rolf M. Treu
__________________________________________________________________________________
Attorneys for Appellant:
Law Office of Rochelle Evans Jackson, Rochelle Evans Jackson; Law Office of Melinda G. Wilson andMelinda G. Wilson for Plaintiff and Appellant.
Lisa R. Jaskol for Los Angeles County Bar Association and California Women Lawyers as Amici Curiae
on behalf of Plaintiff and Appellant.
Horvitz & Levy, Jeremy B. Rosen and Jason R. Litt for The Asian Pacific American Legal Center, Bet
Tzedek Legal Services, The Impact Fund, Public Counsel and The Western Center on Law and Poverty as
Amici Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Rockard J. Delgadillo, City Attorney, Paul L. Winnemore and Beth D. Orellana, Deputy City Attorneys, for
Defendants and Respondents.
Paul, Hastings, Janofsky & Walker, Paul W. Cane, Jr., and Laura B. Scher for Employers Group and
California Employment Law Council as Amici Curiae on behalf of Defendants and Respondents.
Lozano Smith, Gregory A. Wedner and Sloan R. Simmons for League of California Cities and California
State Association of Counties as Amici Curiae on behalf of Defendants and Respondents.
Norton, Moore & Adams and William A. Adams for Food & Beverage Association of San Diego County as
Amicus Curiae on behalf of Defendants and Respondents.
The Hundley Law Firm and Paul B. Hundley for Association of Corporate Counsel, Southern California
Chapter as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lisa R. Jaskol610 S. Ardmore Avenue
Los Angeles, CA 90005
(213) 637-3851
Beth D. Orellana
Deputy City Attorney
200 North Main Street, 700 City Hall East
Los Angeles, CA 90012
(213) 978-8291
Petition for review after the Court of Appeal reversed an order denying attorney fees in a civil action. This case presents the following issue: Does Code of Civil Procedure section 1033 permit a trial court to deny Government Code section 12965 attorney fees to the prevailing plaintiff in an action under the Fair Employment and Housing Act (Gov. Code, section 12900 et seq.) if the judgment obtained in a court with jurisdiction over "unlimited" civil cases (see Code Civ. Proc., section 88) could have been rendered in a court with jurisdiction over "limited" civil cases (see Code Civ. Proc., section 85, subd. (a))?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 01/14/2010 | 47 Cal. 4th 970, 224 P.3d 41, 104 Cal. Rptr. 3d 710 | S162313 | Review - Civil Appeal | submitted/opinion due |
| 1 | Chavez, Robert (Plaintiff and Appellant) Represented by Rochelle Evans Jackson Attorney at Law 333 City Boulevard West, 17th Floor Orange, CA |
| 2 | Chavez, Robert (Plaintiff and Appellant) Represented by Lisa R. Jaskol Public Counsel Law Center 610 S. Ardmore Avenue P.O. Box 76900 Los Angeles, CA |
| 3 | Chavez, Robert (Plaintiff and Appellant) Represented by Gloria Dredd Haney Attorney at Law 333 City Boulevard West, 17th Floor Orange, CA |
| 4 | City of Los Angeles (Defendant and Respondent) Represented by Rockard John Delgadillo Office of the City Attorney 200 N. Mail Street, 700 City Hall East Los Angeles, CA |
| 5 | City of Los Angeles (Defendant and Respondent) Represented by Paul Lee Winnemore Office of the City Attorney 200 N. Main Street, 700 City Hall East Los Angeles, CA |
| 6 | City of Los Angeles (Defendant and Respondent) Represented by Beth Danielle Orellana Office of the City Attorney 200 N. Main Street, 700 City Hall East Los Angeles, CA |
| 7 | Sergeant Berglund (Defendant and Respondent) Represented by Beth Danielle Orellana Office of the City Attorney 200 N. Main Street, 700 City Hall East Los Angeles, CA |
| 8 | Asian Pacific American Legal Center (Amicus curiae) Represented by Jeremy Brooks Rosen Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 9 | Asian Pacific American Legal Center (Amicus curiae) Represented by Jason Roger Litt Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 10 | Association of Corporate Counsel (Amicus curiae) Represented by Paul Bernhardt Hundley The Hundley Law Firm 6601 Center Drive West, Suite 500 Los Angeles, CA |
| 11 | Bet Tzedek (Amicus curiae) Represented by Jason Roger Litt Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 12 | California Employment Law Council (Amicus curiae) Represented by Paul W. Cane Paul, Hastings, Janofsky & Walker, LLP 55 Second Street, 24th Floor San Francisco, CA |
| 13 | California State Association of Counties (Amicus curiae) Represented by Gregory A. Wedner Lozano Smith One Capitol Mall, Suite 640 Sacramento, CA |
| 14 | California Women Lawyers (Amicus curiae) Represented by Lisa R. Jaskol Public Counsel Law Center 610 S. Ardmore Avenue P.O. Box 76900 Los Angeles, CA |
| 15 | Employers Group (Amicus curiae) Represented by Laura Beth Scher Paul, Hastings, Janofsky & Walker, LLP 55 Second Street, 24th Floor San Francisco, CA |
| 16 | Employers Group (Amicus curiae) Represented by Paul W. Cane Paul, Hastings, Janofsky & Walker, LLP 55 Second Street, 24th Floor San Francisco, CA |
| 17 | Food & Beverage Association of San Diego (Amicus curiae) Represented by William A. Adams Norton, Moore & Adams, LLP 525 "B" Street, Suite 1500 San Diego, CA |
| 18 | Impact Fund (Amicus curiae) Represented by Jason Roger Litt Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 19 | League of California Cities (Amicus curiae) Represented by Sloan Robert Simmons Lozano Smith One Capitol Mall, Suite 640 Sacramento, CA |
| 20 | League of California Cities (Amicus curiae) Represented by Gregory A. Wedner Lozano Smith One Capitol Mall, Suite 640 Sacramento, CA |
| 21 | Los Angeles County Bar Association (Amicus curiae) Represented by Lisa R. Jaskol Public Counsel Law Center 610 S. Ardmore Avenue P.O. Box 76900 Los Angeles, CA |
| 22 | Public Counsel (Amicus curiae) Represented by Jason Roger Litt Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 23 | Western Center on Law & Poverty (Amicus curiae) Represented by Jason Roger Litt Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| Opinion Authors | |
| Opinion | Justice Joyce L. Kennard |
| Dockets | |
| Apr 2 2008 | Petition for review filed City of Los Angeles, et al., respondents Rockard J. Delgadillo, City Attorney, Paul L. Winnemore & Beth D. Orellana, Deputy City Attorneys |
| Apr 4 2008 | Record requested |
| Apr 4 2008 | Received Court of Appeal record |
| Apr 22 2008 | Request for depublication (petition for review pending) City of Los Angeles, et al., respondents Rockard Delgadillo, City Attorney, Paul Winnemore & Beth D. Orellana, Deputy City Attorneys |
| Apr 23 2008 | Answer to petition for review filed Robert Chavez, plaintiff and appellant by Rochelle Evans Jackson, retained counsel CRC8.25(b) |
| May 2 2008 | Reply to answer to petition filed Respondents City of Los Angeles |
| May 14 2008 | Letter sent to: All parties enclosing a copy of the grant order and the certification of interested entities and persons form. |
| May 14 2008 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Chin, and Corrigan, JJ. |
| May 15 2008 | 2nd record request for balance of the record in B192375 |
| May 27 2008 | Certification of interested entities or persons filed Respondents City of Los Angeles, Glenn Krejci, Paul Von Lutzow and Harlan Ward ~City Attorney Rockard John Delgadillo |
| May 28 2008 | Certification of interested entities or persons filed by Rochelle Evans Jackson, counsel for plaintiff and appellant (Chavez) |
| May 30 2008 | Request for extension of time filed Respondents City of Los Angeles, Glen Krejci, Paul Von Lutzow, and Harlan Ward to file opening brief to 07-14-08 Deputy City Attorney Beth D. Orellana |
| Jun 2 2008 | Received Court of Appeal record B192375 - one doghouse containing Appellant's Appendix Vols. 1, 2, and 3. |
| Jun 12 2008 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file Respondents' Opening Brief on the Merits is extended to and including July 14, 2008. |
| Jul 14 2008 | Opening brief on the merits filed City of Los Angeles, et al., defendants and respondents Beth D. Orellana, Deputy City Attorney |
| Jul 25 2008 | Request for extension of time filed to file appellant (Chavez) answer brief/merits to September 15, 2008 Rochelle Evens Jackson, attorney |
| Jul 28 2008 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Answer Brief on the Merits is extended to and including September 15, 2008. |
| Aug 22 2008 | Received application to file Amicus Curiae Brief Employers Group and California Employment Law Council in support of respondents by Paul W. Cane, Jr., Paul, Hastings, et al., counsel |
| Aug 27 2008 | Permission to file amicus curiae brief granted The application of Employers Group and California Employment Law Council for permission to file an amici curiae brief in support of respondents is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under California Rules of Court, rule 8.520(f)(2). |
| Aug 27 2008 | Amicus curiae brief filed Employers Group and California Employment Law Council in support of respondents by Paul W. Cane, Jr., Paul Hastings Janofsky & Walker, LLP, counsel |
| Sep 11 2008 | Request for extension of time filed from appellant Robert Chavez to file answer brief/merits to September 26, 2008. |
| Sep 16 2008 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including September 26, 2008. |
| Sep 29 2008 | Answer brief on the merits filed counsel for aplt. (Chavez) (8.25(b)) |
| Oct 16 2008 | Reply brief filed (case fully briefed) City of Los Angeles, et al., respondents Rockard J. Delgadillo, City Attorney, Paul L. Winnemore & Beth D. Orellana, Deputy City Attornes |
| Oct 30 2008 | Received application to file Amicus Curiae Brief Food & Beverage Association of San Diego County in support of respondents by William A. Adams, Norton Moore & Adams LLP, counsel |
| Nov 5 2008 | Request for extension of time to file amicus curiae brief Amici Curiae Public Counsel and Bet Tzedek, to and including December 17, 2008, by Jason R. Litt, Horvitz & Levy LLP, counsel |
| Nov 5 2008 | Received application to file Amicus Curiae Brief Amici Curiae League of California Cities and California State Association of Counties in support of respondents by Gregory A. Wedner, Lozano Smith, counsel |
| Nov 12 2008 | Extension of time granted On application of Amici Curiae Public Counsel and Bet Tzedek and good cause appearing, it is ordered that the time to serve and file the amici curiae brief is hereby extended to and including December 17, 2008. |
| Nov 12 2008 | Permission to file amicus curiae brief granted The application of League of California Cities and California State Association of Counties for permission to file an amici curiae brief in support of respondents is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under California Rules of Court, rule 8.520(f)(2). |
| Nov 12 2008 | Amicus curiae brief filed Amici Curiae League of California Cities and California State Association of Counties in support of respondents |
| Nov 13 2008 | Permission to file amicus curiae brief granted The application of Food & Beverage Association of San Diego for permission to file an amicus curiae brief in support of respondents is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under California Rules of Court, rule 8.520(f)(2). |
| Nov 13 2008 | Amicus curiae brief filed Food & Beverage Association of San Diego in support of respondents. |
| Nov 17 2008 | Received application to file Amicus Curiae Brief and amicus brief of Los Angeles County Bar Association and California Women Lawyers in support of Appellant Robert Chavez |
| Nov 17 2008 | Received application to file Amicus Curiae Brief and brief of The Association of Corporate Counsel, Southern California Chapter |
| Nov 21 2008 | Permission to file amicus curiae brief granted The application of Amicus Curiae Association of Corporate Counsel, Southern California Chapter, for permission to file an amicus curiae brief (party supported not mentioned) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Nov 21 2008 | Amicus curiae brief filed Association of Corporate Counsel, Southern California Chapter by Paul B. Hundley, counsel |
| Nov 21 2008 | Permission to file amicus curiae brief granted The application of Amici Curiae Los Angeles County Bar Association and California Women Lawyers for permission to file the amici curiae brief in support of appellant is hereby granted. An answer thereto may e served and filed by any party within twenty days of the filing of the brief. |
| Nov 21 2008 | Amicus curiae brief filed Amici Curiae Los Angeles County Bar Association and California Women Lawyers in support of appellant. by Lisa R. Jaskol, counsel |
| Dec 18 2008 | Received application to file Amicus Curiae Brief Amici Curiae The Asian Pacific American Legal Center, Bet Tzedek Legal Services, The Impact Fund, Public Counsel, and the Western Center of Law and Poverty in support of appellant by Jeremy B. Rosen and Jason R. Litt, Horvitz & Levy LLP CRC 8.25(b) |
| Dec 23 2008 | Permission to file amicus curiae brief granted The applicationof The Asian Pacific American Legal Center, Bet Tzedek Legal Services, The Impact Fund, Public Counsel, and The Western Center on Law and Poverty for permission to file amici curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 23 2008 | Amicus curiae brief filed The Asian Pacific American Legal Center, Tet Tzedek Legal Services, The Impact Fund, Public Counsel, and The Western Center on Law and Poverty in support of appellant. by Jason R. Litt, Horvitz & Levy LLP, counsel |
| May 5 2009 | Received: Letter dated 5-5-2009 re new decision of Ninth Circuit U.S. Court of Appeals. Paul W. Cane, Jr. , counsel for Amici Curiae California Employment Law Council and Employers Group. |
| Oct 1 2009 | Case ordered on calendar to be argued Wednesday, November 4, 2009, at 1:30 p.m., in San Francisco |
| Oct 5 2009 | Association of attorneys filed Law Offices of Gloria Dredd Haney counsel of record for Robert Chavez, appellant. |
| Oct 7 2009 | Association of attorneys filed Associating in Lisa R. Jaskol, as co-counsel for the sole purpose of presenting oral argument on behalf of Mr. Chavez, plaintiff and appellant. |
| Oct 7 2009 | Filed: Request to divide oral argument filed by Lisa R. Jaskol, counsel for appellant Chavez. Asking to share 15 minutes of time with amici curiae Asian Pacific American Legal Center et al. |
| Oct 20 2009 | Order filed The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Asian pacific American Legal Center et al. 15 minutes of appellant's 30-minute allotted time for oral argument is granted. |
| Oct 26 2009 | Received: Letter dated 10-24-2009 from Lisa R. Jaskol, counsel for appellant (Chavez), advising of additional cites. CRC 8.25(b) |
| Nov 4 2009 | Association of attorneys filed Rochelle Evans Jackson, attorney for plaintiff and appellant Robert Chavez, associates Melinda G. Wilson, Law Offices of Melinda G. Wilson. |
| Nov 4 2009 | Cause argued and submitted |
| Jan 13 2010 | Notice of forthcoming opinion posted To be filed Thursday, January 14, 2010 @ 10 a.m. |
| Briefs | |
| Jul 14 2008 | Opening brief on the merits filed |
| Aug 27 2008 | Amicus curiae brief filed |
| Sep 29 2008 | Answer brief on the merits filed |
| Oct 16 2008 | Reply brief filed (case fully briefed) |
| Nov 12 2008 | Amicus curiae brief filed |
| Nov 13 2008 | Amicus curiae brief filed |
| Nov 21 2008 | Amicus curiae brief filed |
| Nov 21 2008 | Amicus curiae brief filed |
| Dec 23 2008 | Amicus curiae brief filed |
| Brief Downloads | |
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| May 26, 2010 Annotated by wackos | Historical Background on California Courts: Key Statutes: Cal. Code of Civ. Proc. §§ 1032-33 provide that: (1) except as otherwise provided by specific statute, a prevailing party is generally entitled to recover costs in any action as a matter of right, but that (2) the trial judge has discretion to award fees in an unlimited civil case that could have been brought as a limited case. Cal. Gov’t Code § 12965(b) is a part of the California Fair Employment and Housing Act (FEHA), providing that “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs.” This has been interpreted to mean that a court should ordinarily award attorney fees to a prevailing plaintiff unless special circumstances would render a fee award unjust. Factual and Procedural History of this Case: Stolen checks incident. Plaintiff Robert Chavez was first hired as a police officer in the Los Angeles Police Department (LAPD) in 1989. In 1996, Chavez was accused of stealing payroll checks, and after a lengthy internal investigation, LAPD determined that Chavez had not stolen the checks. Allegations of surveillance. In February 1997, Chavez reported to his captain that he was under surveillance by LAPD’s internal affairs division. Concerned that Chavez was exhibiting paranoia, the captain ordered that Chavez be seen by LAPD’s Behavioral Science Services unit. Over the course of 18 months, Chavez attended 10 sessions with the unit. Chavez’s first suit (re: stolen checks). In April 1998, Chavez filed a lawsuit against LAPD alleging defamation, intentional infliction of emotional distress, and other claims, all in relation to the stolen checks incident. This claim was dismissed by the superior court in December 1999. Complaints re: surveillance. Meanwhile, Chavez made several complaints to LAPD that he was being harassed in retaliation for his lawsuit. Chavez alleged that LAPD helicopters were flying above his house, and in January 2000, he presented a claim to LAPD for damages resulting from air surveillance. LAPD investigated this claim and, finding it without merit, denied it in March 2000. Laundromat incident. Beginning in May 1999, Chavez left work on stress leave. This leave commenced shortly after a laundromat owner filed a complaint about Chavez’ conduct in response to an alleged robbery at the laundromat. When Chavez returned to work in March 2000, LAPD notified him that he would be suspended for five days in connection with the laundromat incident. Chavez was also taken off of patrol duty until he could be cleared by the Behavioral Science Services unit. Chavez’ first FEHA suit. Shortly after returning to work, Chavez requested a transfer from his assignment with the 77th Street Division. Defendant Ward initially approved this request. In May 2000, Chavez filed his first FEHA suit in superior court. Two weeks later, Defendant Ward rescinded the order granting Chavez’ transfer request. Chavez’ federal suit. In August 2000, Chavez filed a suit in federal district court alleging civil rights violations under FEHA as well as 42 U.S.C. §§ 1983 and 1988. Chavez was transferred from the 77th Street Division in October 2000, but he left work on stress leave in April 2001. It is unclear whether Chavez ever returned to work. In May 2002, the district court granted summary judgment for the defendants. Chavez appealed and in September 2004, the Ninth Circuit reversed in part and remanded for a determination of whether Ward’s decision to temporarily rescind the transfer order constituted retaliation in violation of FEHA. On remand, the district court dismissed the suit without prejudice, instructing Chavez to refile his remaining state FEHA claims in state court. Chavez’ second FEHA suit. Chavez filed this lawsuit in November 2004. After a five day trial, the jury found that Ward rescinded the initial transfer order in retaliation for protected activity under FEHA and awarded Chavez a total of $11,500. Motion for Attorneys’ Fees. Chavez’ attorney eventually filed a motion for fees in the amount of $870,935.50. This figure included a 2x multiplier to the attorney’s base calculation. It also included all of the services the attorney provided in Chavez’ previous state and federal suits. The trial court denied this motion, exercising its discretion under Cal. Code of Civ. Proc. § 1033. On appeal, the California Court of Appeal reversed, finding that, as a practical matter, Chavez could not have filed his complex suit as a limited civil case, and that FEHA’s specific provision for attorneys’ fees (Cal. Gov’t Code §12965(b)) trumped § 1033. Chavez appealed to the California Supreme Court. Holding: Court’s Reasoning: The Court found that § 1033 replaced a historical arrangement in which plaintiffs who filed suit in the wrong forum were not entitled to any costs. Thus, the current statute was meant to liberalize the formerly strict rule denying costs. Courts have held that in exercising its discretion, a trial court should consider the amount of damages that a plaintiff could reasonably have expected to recover when filing the unlimited civil case, and the amount of costs actually incurred. The Court found the FEHA’s fee provision was meant to encourage anti-discrimination litigation, and that California courts had adopted federal title VII jurisprudence to determine when and how fees should be awarded. Under this analysis, a prevailing plaintiff should ordinarily recover attorney fees unless special circumstances would render the award unjust. Disagreeing with the Court of Appeals, the Supreme Court found that there was no inherent tension between § 1033 and FEHA. Under the caselaw interpreting § 1033, the trial court should evaluate a case in light of the information that was known, or should have been known, by the plaintiff's attorney when the action was initially filed. Under § 1033, if the plaintiff’s attorney could reasonably have believed the case could not be fairly tried as a limited civil case, the trial court should not deny attorney fees. If, on the other hand, “the trial court is firmly persuaded that the plaintiff's attorney had no reasonable basis to anticipate a damages award in excess of the amount recoverable in a limited civil case, . . . the trial court may deny . . . the plaintiff's claim for attorney fees.” This analysis dovetails nicely with the courts’ interpretation of FEHA’s fees provision. Where the amount of damages that a FEHA plaintiff could reasonably expect to recover indicates that an unlimited case should have been filed under the cost-saving structure of a limited case, the trial court could easily find that awarding full attorneys’ fees would be unjust. Annotation by Albert S Yang |
