Johnson v. State, 69046–9–I.
| Decision Date | 12 November 2013 |
| Docket Number | No. 69046–9–I.,69046–9–I. |
| Citation | 313 P.3d 1197,177 Wash.App. 684 |
| Parties | Karen JOHNSON, Appellant v. STATE of Washington, DEPARTMENT OF TRANSPORTATION, Respondent. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Mary Ruth Mann, James Wilson Kytle, Mann & Kytle PLLC, Seattle, WA, for Appellant.
Jon Ryan Morrone, Williams Kastner, Thomas Robinson O Neill, Catherine Hendricks, WA Attorney Generals, Seattle, WA, for Respondent.
¶ 1 Karen Johnson accepted a Civil Rule (CR) 68 offer of judgment presented by the Washington State Department of Transportation (DOT), settling her claim against DOT for violations of the Washington Law Against Discrimination (WLAD).1 After accepting the offer, Johnson petitioned the trial court for an award of attorney fees and costs pursuant to the agreement. The trial court awarded attorney fees and costs to Johnson, but first deducted time spent on Johnson's unsuccessful administrative claim, time spent and costs accrued after the date of the offer, reconstructed hours, and amounts billed by Johnson's psychologist, Dr. Timothy Reisenauer, for time spent on litigation-related matters. Johnson appeals, asserting that the trial court erred in every instance in which it awarded an amount less than that requested. Finding that the trial court did not abuse its discretion by excluding the aforementioned fees and costs, we affirm.
¶ 2 Karen Johnson was formerly employed as Assistant Regional Human Resources Manager at the Northwest Region of DOT. Johnson's supervisor at DOT was Corey Moriyama. In June 2008, Johnson submitted an administrative complaint to DOT alleging sex discrimination and retaliation on the part of Moriyama. Johnson retained the law firm of Mann & Kytle, PLLC the following month, and continues to retain the firm on appeal. DOT closed the investigation into Johnson's allegations of discrimination in December 2008 and notified her of its adverse decision in January 2009.
¶ 3 In September 2008, Johnson went on medical leave from her position at DOT. Johnson's psychologist, Dr. Reisenauer, diagnosedher with posttraumatic stress disorder (PTSD), depression, and anxiety caused by her experiences working under Moriyama's supervision at DOT. In November 2008, Dr. Reisenauer provided a Family and Medical Leave Act (FMLA) certification to DOT, stating that Johnson's “condition continues to not allow her to return to work without it seriously jeopardizing her health.” In May 2009, Dr. Reisenauer wrote a follow-up letter to DOT, recommending that Johnson remain off work until November 11, 2009. On July 10, 2009, Dr. Reisenauer completed a DOT disability medical questionnaire, stating that while Johnson was capable of performing the essential functions of an Assistant Regional Human Resources Manager, any return to the DOT would likely retrigger her PTSD symptoms. Based on these reports from Dr. Reisenauer, DOT disability-terminated Johnson on July 23, 2009.
¶ 4 Johnson appealed her disability-termination to the Personnel Resources Board (PRB) on August 6, 2009. In her appeal, Johnson alleged that DOT's decision to disability-terminate her was done in retaliation for her reporting discrimination by Moriyama and that DOT failed to reasonably accommodate her when it did not attempt to find a position for her at another state agency. On February 18, 2010, the PRB found that DOT had no duty to search for positions at other state agencies and denied Johnson's appeal.
¶ 5 On July 7, 2010, Johnson filed a complaint for damages and injunctive relief against DOT, alleging that DOT violated the WLAD by discriminating against her on the basis of age, sex, and disability. Dr. Reisenauer regularly consulted with counsel for Johnson throughout the course of litigation and prepared supporting documentation for Johnson's response to DOT's motion for a CR 35 examination. However, Dr. Reisenauer was neither retained nor listed as an expert witness.
¶ 6 On October 5, 2011, DOT tendered to Johnson and filed with the court a CR 68 offer of judgment. The offer states, in relevant part:
Under Civil Rule 68, Defendant Department of Transportation, State of Washington offers to allow Plaintiff, Karen Johnson, to take judgment against the State of Washington in this matter pursuant to RCW Ch. 4.92, which judgment shall be Three Hundred and Fifty Thousand dollars ($350,000). Additionally, Defendant State of Washington hereby offers to pay Karen Johnson's awardable costs and reasonable attorney's fees accrued in this lawsuit up to the date/time of this Offer, which sum shall be determined by the King County Superior Court in the event that counsel for the parties cannot agree within 10 days of Plaintiff's timely acceptance. Plaintiff's claimed costs and fees shall be substantiated by billing records attached to Plaintiff's acceptance of this Offer detailing the nature and date of the work performed and hours accrued.
Johnson unequivocally accepted the offer of judgment on October 17, 2011. As requested, Johnson submitted her counsel's billing records along with her acceptance.
¶ 7 On January 20, 2012, Johnson petitioned the court for an award of attorney fees and costs, which she later amended to comply with the court's filing requirements.2 Johnson also submitted modified billing records, which included reconstructed time that was not contained in the October 17 record. DOT filed a response to Johnson's petition on February 8, 2012, to which Johnson replied on February 16, 2012.
¶ 8 On March 26, 2012, the trial court submitted a letter to both parties, setting forth the following rulings:
(1) The reasonable hourly rate for Ms. Mann and Mr. Kytle is $425.00; for Mr. Rose $225; for their paralegal $125.00;
(2) Plaintiff is not entitled to fees for hours expended after October 5, 2011 pursuant to the terms of the offer of judgment. Guerrero v. Cummings, 70 F.3rd 1111, 1113 (9th Cir.1995); (3) Plaintiff is only entitled [to] fees based on hours that were contemporaneously billed. Mahler v. Szucs, 135 Wash.2d 398, 434 (1998).
(4) Plaintiff is entitled to fees for all hours expended on this case through October 5, 2011, with the exception of time spent on her administrative challenge to her transfer to another state agency.
(5) Plaintiff is entitled to a multiplier of 1.3.
(6) Plaintiff is entitled to reimbursement for all costs, with the exception of Dr. Reisenauer's bills for work performed before June 17, 2011 as her treating physician. Dr. Reisenauer did not submit a cost bill that segregated the costs incurred as an expert witness rather than as a treating physician. His costs are therefore not recoverable.
Johnson submitted a motion for reconsideration on April 5, 2012. Attached to this motion were separate billings for Dr. Reisenauer's clinical and nonclinical hours, with costs for the nonclinical hours totaling $41,663.56. After receiving a response from DOT, the trial court filed its findings of fact and conclusions of law, which appeared to be unaffected by the information contained in the motion for reconsideration.
¶ 9 The trial court calculated a “lodestar” amount for attorney fees and found that a reasonable rate for partners Ms. Mann and Mr. Kytle was $425, a reasonable rate for associate Mr. Rose was $225, and a reasonable rate for their paralegal was $125. The trial court found that the reasonable number of hours expended were 170.55 for Ms. Mann, 19.44 for Mr. Kytle, 41.27 for Mr. Rose, and 15.06 for the paralegal. Citing Chuong Van Pham v. City of Seattle, 159 Wash.2d 527, 538, 151 P.3d 976 (2007), the trial court determined that 27.4 partner hours and 25.18 associate hours spent on Johnson's administrative claim were segregable and thus not recoverable. Citing Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir.1995), the trial court found that the offer of judgment was not ambiguous and, therefore, the 59.76 partner hours, 5.85 associate hours, 4.08 paralegal hours, and $7,438.91 in costs expended or incurred after October 5, 2011 were not recoverable.
¶ 10 In addition, the trial court determined that 58.54 reconstructed partner hours and .15 reconstructed paralegal hours were not reliably proved and, thus, were not recoverable. The trial court expressed skepticism that counsel could reliably recall time spent more than 18 months prior to the submission, where no contemporaneous records of the work or the time spent were generated, as well as noting counsel's failure to explain why some correspondence hours were not accounted for when other correspondence hours had been included in the initial billing. However, the trial court applied a 1.3 multiplier to the lodestar figure based on the high risk plaintiff's counsel took in accepting the case, the difficulties presented by Johnson's mental health issues, and the sizeable resources available to DOT to defend the case.
¶ 11 On the issue of costs, the trial court found that all costs before October 5, 2011, except for Dr. Reisenauer's bills, were recoverable. The trial court determined that Dr. Reisenauer's bills should properly be considered medical damages, as he was Johnson's treating physician, and was neither retained nor listed as an expert witness. Therefore, based upon the court's findings, Johnson was awarded $119,448.20 in attorney fees and $12,034.38 in costs.3 Johnson appealed from the trial court's determination of reasonable attorney fees and costs, asserting that the trial court erred in every instance in which it reduced the amount claimed by her.
¶ 12 Johnson contends that she is entitled to recover attorney fees for time spent on her administrative claim because, she avers, the claims were nonsegregable. This is so, she contends, because the claims were based on a common core of facts and legal issues. Thus, Johnson asserts that the trial court erred by excluding time spent on the administrativeclaim from the recoverable hours.4 We disagree.
¶ 13 This court will not disturb a trial court's decision denying, granting,...
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