Harman v. City and County of San Francisco

• Decision Date: 21 December 2007
• Docket Number: No. A115519.,A115519.
• Citation: 158 Cal.App.4th 407,69 Cal.Rptr.3d 750
• Court: California Court of Appeals Court of Appeals
• Parties: Alien HARMAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

69 Cal.Rptr.3d 750

158 Cal.App.4th 407

Alien HARMAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

No. A115519.

Court of Appeal, First District, Division 1.

December 21, 2007.

Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, Esq., Deputy City Attorney, Vince Chhabria, Esq., Deputy City Attorney, for Defendant and Appellant.

Pacific Legal Foundation, Sharon L. Browne, Esq., Paul J. Beard II, Esq., Sacramento, for Plaintiff and Respondent.

SWAGER, J.

This case has returned to us yet again for another review of the trial court's award of attorney fees. We conclude the award is not an abuse of discretion, with the exception of the fees for work performed in the prior appeal on the issue of the attorney fees. We therefore reverse that part of the judgment and remand the case for limited proceedings to reduce the award accordingly. In view of the broad discretion granted to the trial court we are constrained to affirm the award of attorney fees in all other respects.

STATEMENT OF FACTS AND PROCEDURAL HISTORY¹

This case began in the federal court in September of 1999, when respondent Allen Harman and two other White males, Stefan Cheresnik and John McGoldriek, who were employed as airfield safety officers at the San Francisco International Airport, filed a complaint which alleged employment discrimination. After lengthy federal court proceedings the parties stipulated to dismissal of the federal action in favor of a new complaint to be filed in state court. The complaint filed in state court against defendants, City and County of San Francisco, individual members of the San Francisco Airport Commission, and the director of the San Francisco International Airport,² initially sought only equitable relief, but was later amended to include a cause of action for damages. "The first three causes of action of the first amended complaint alleged discrimination on the basis of race and sex in violation of Proposition 209 (Cal. Const., art. I, § 31) and the equal protection clause of the Fourteenth Amendment to the United States Constitution and sought prospective equitable relief through an injunction, declaratory judgment, and writ of mandate commanding the City `to implement race- and sex-neutral recruitment, hiring, and promotional policies.' The fourth cause of action sought damages under Proposition 209 and the federal Civil Rights Act as codified in title 42 United States Code section 1983 (hereafter section 1983)." (Harman, supra, 136 Cal.App.4th 1279, 1286-1287, 39 Cal.Rptr.3d 589.)

"The trial court sustained the City's demurrer to the fourth cause of action, as it stated a claim of damages under Proposition 209, on the ground that it did not allege compliance with the government claims act. (Gov.Code, § 905 et seq.) After completion of discovery, the court granted the City's motion for summary judgment on the remaining causes of action and the plaintiffs appealed." (Harman, supra, 136 Cal.App.4th 1279,1287, 39 Cal.Rptr.3d 589.)

In our opinion in the first appeal in this case (Cheresnik v. City and County of San Francisco (Apr. 23, 2003, A098415), 2003 WL 1919111 [nonpub. opn.]), we reversed that portion of the judgment that dismissed Harman's fourth cause of action for damages under section 1983, but affirmed the judgment as to all other plaintiffs and causes of action. We found that "the City adopted an equal employment opportunity plan in July 2000 that stated policies consistent with evolving legal standards of employment discrimination under equal protection jurisprudence and Proposition 209.[] We found `no basis in the record to question the Airport's commitment to conform to changing legal standards in the area of employment policy.' We also affirmed the summary judgment with respect to the claims of damages of two of the three defendants. In the case of Harman, we affirmed the demurrer to the claim for damages under Proposition 209, but we found a triable issue of fact relating to his claim of damages under section 1983 arising from a delay in receiving a promotion to the job classification of '9220 Airport Operations Supervisor.'"³ (Harman supra, 136 Cal.App.4th 1279, 1287, 39 Cal.Rptr.3d 589, fn. omitted.) "In reversing the dismissal of Harman's section 1983 claim," our finding of a triable issue of fact related to the "racially discriminatory purpose in the termination of the provisional pool and the acting appointment." (Ibid.)

Following our remand, the trial court denied the City's motion for nonsuit. Settlement negotiations produced a demand for $600,000 in damages from Harman; the City countered with an offer of $25,000. Trial then proceeded before a jury. The jury found in a special verdict form "that the City had `an official policy or custom to intentionally discriminate against [W]hite males in promotional opportunities at the San Francisco International Airport.' The jury then awarded Harman $15,300 as damages for economic harm and another $15,000 as damages for emotional distress. The City moved for judgment notwithstanding the verdict and for new trial relying chiefly on a claim of [Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658[, 98 S.Ct. 2018, 56 L.Ed.2d 611]] error. The trial court denied the motions and entered judgment for Harman." (Harman, supra, 136 Cal.App.4th 1279, 1288, 39 Cal.Rptr.3d 589.)

"Harman then filed two motions for attorney fees under 42 United States Code section 1988 in the total amount of $1,095,202. He sought $713,152.75 on behalf of the Pacific Legal Foundation, which filed the original action, and $382,050.23 for trial counsel, Andrea Miller. The trial court awarded the entire sum finding that it was `reasonable, after due consideration of the success obtained relative to the relief sought and other circumstances of this case.' The City filed a timely notice of appeal." (Harman, supra, 136 Cal. App.4th 1279, 1288, 39 Cal.Rptr.3d 589.)

In our opinion in Harman, supra, 136 Cal.App.4th 1279, 1317, 39 Cal.Rptr.3d 589, we affirmed the judgment for $30,300 in compensatory damages, but vacated the award of attorney fees. We concluded "that the trial court did not properly consider the standards governing the award of attorney fees under section 1988" as articulated in Hensley v. Eckerhart (1983) 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40. (Harman, supra, at p. 1316, 39 Cal. Rptr.3d 589.) We again remanded the case "to give the court an opportunity to consider the determination of a reasonable fee." (Ibid.) We advised the trial court to "recalculate the lodestar figures applying the proper standards of reasonableness. Then, it must adjust the fee to reflect the plaintiffs limited success by pursuing the two-step analysis dictated by Hensley. First, it should exclude hours expended on claims that are unrelated to the claim of damages on which Harman succeeded at trial. Secondly, it must reduce the award to reflect the limited nature of Harman's relief in comparison with the scope of the litigation as a whole. As instructed by Hensley, the court `may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.' [Citation.] When it recalculates the attorney fee award, the court must articulate a clear explanation of its reasoning in light of the authority surveyed in this opinion so as to facilitate meaningful appellate review. We expressed] no opinion as to the amount of fees that the court should award. That amount [was] left to the trial court's sound discretion to be exercised in view of the governing standards we have set forth." (Harman, supra, at pp. 1316-1317, 39 Cal. Rptr.3d 589.)

Once the case returned to the trial court, the City filed a peremptory challenge to the trial judge (Code Civ. Proc., § 170.6).⁴ Along with opposition to the peremptory challenge, Harman filed a renewed request for attorney fees in the total amount of $1,118,457.75: $744,756.75 for the Pacific Legal Foundation (PLF), and $373,701 for Andrea Miller. The requested fees included amounts for work performed posttrial and on appeal, and purported to exclude amounts for hours expended on unsuccessful claims. As ordered by the trial court, the parties submitted memoranda on the issue of the reasonable amount of attorney fees.

In its order awarding attorney fees after remand, the trial court considered first the issue of the lodestar calculation. The court found that reasonable billing judgment was exercised by respondent's attorneys in preparing the billing summaries, and appellant failed to satisfy its burden to prove that the "presumptively reasonable" lodestar figure was erroneous. The rates presented by respondent's attorneys in the lodestar calculations were found to be "supported by the evidence in the declarations submitted in support of the attorneys[`] fees award."

The trial court proceeded in detailed fashion to the two-step Hensley test: a "determination of related and unrelated claims and concerning adjustments to the lodestar based on Hensley." The court reviewed deletions made by respondent from fee submissions for time related to the cases "of the other two original plaintiffs" and the federal and state court equitable claims. The deletions were considered by the court as an adjustment of the first-step "lodestar" figure and a concession by respondent that to that extent "the equitable claims and the cases brought by the other two original plaintiffs were unrelated." With respondent's concessions in mind, the court then evaluated the specific "intermingled time on unrelated claims" that remained "in the initial lodestar calculation." Respondent's reductions were found "reasonable" and a proper accounting for all fees for claims unrelated to the "overall success" in the case.

The court then determined that any additional reduction in the fee award in the second step of the Hensley test "would amount to doubly reducing fees" for...