Vo v. Las Virgenes Municipal Water District

• Decision Date: 28 March 2000
• Citation: 94 Cal.Rptr.2d 143,79 Cal.App.4th 440
• Parties: (Cal.App. 2 Dist. 2000) JONATHAN VO, Plaintiff and Respondent, v. LAS VIRGENES MUNICIPAL WATER DISTRICT, Defendant and Appellant. B130613 Filed
• Court: California Court of Appeals Court of Appeals

94 Cal.Rptr.2d 143 (Cal.App. 2 Dist. 2000)

JONATHAN VO, Plaintiff and Respondent, v. LAS VIRGENES MUNICIPAL WATER DISTRICT Defendant and Appellant.

B130613

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

Filed 3/28/00

APPEAL from an order of the Superior Court of Los Angeles County. Harvey A. Schneider, Judge. Affirmed.

(Super. Ct. No. BC141746)

Liebert, Cassidy, Melanie M. Poturica and Irma Rodriguez Moisa for Defendant and Appellant.

Joseph Posner; Law Offices of Lee R. Feldman, Lee R. Feldman and Alicia Olivares Uyeda for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

TURNER, P.J.

I. INTRODUCTION

Defendant, Las Virgenes Municipal Water District, appeals from an order awarding, plaintiff, Jonathan Vo, $470,000 in attorney fees after he prevailed on his complaint for violations of the Fair Employment and Housing Act ("FEHA") (Gov. Code,¹ 12900 et seq.). We agree with plaintiff that defendant has failed to provide an adequate record to permit us to determine if the trial court abused its discretion in fixing the attorney fee award in the sum of $470,000. We affirm and plaintiff may seek additional fees pursuant to rule 870.2 of the California Rules of Court.

II. BACKGROUND

The parties elected to proceed under California Rules of Court, rule 5.1 and have filed a joint appendix. The joint appendix does not contain a copy of the complaint or answer. The record also does not include a copy of the reporter's transcript from a three-week jury trial. Both parties have referred to the complaint and matters raised during the trial which has not been made a part of this record on appeal. From the sparse record that has been provided, the following procedural and factual matters are set forth.

Plaintiff's employment by defendant led to a jury verdict in his favor on causes of action for hostile work environment and failure to prevent harassment or discrimination in violation of the FEHA.² The jury awarded plaintiff $40,000 in compensatory damages, which award was reduced by stipulation to $37,500. Plaintiff did not prove causes of action for retaliation and discriminatory denial of promotion.

Plaintiff's counsel, Lee R. Feldman, represented six former and current employees of defendant in FEHA claims. Plaintiff and Leon Holiday filed this current lawsuit for discrimination and harassment. Mr. Holiday's portion of the lawsuit was settled for $380,000. On September 23, 1998, plaintiff filed a motion requesting attorney fees in the amount of $616,917.85 pursuant to section 12965 on the ground he prevailed in the action brought under the FEHA against defendant. Mr. Feldman filed a declaration in which he stated that he made a settlement offer to defendant in December 1995. The settlement offer made on plaintiff's behalf was for $75,000. This was after incurring significant attorney fees drafting a proposed lawsuit, meeting with plaintiff, and corresponding with defendant's counsel. On December 31, 1995, defendant communicated to plaintiffs that it would pay Mr. Holiday's demand of $180,000 but would not offer Mr. Vo anything. On January 19, 1996, a few weeks after the lawsuit was filed, plaintiff's counsel caused a Code of Civil Procedure section 998 offer of settlement to be served on defendant for a total payment of $335,000. The offer was made on behalf of both Mr. Holiday and Mr. Vo. Defendant allowed this offer to expire. However, less than six months later, defendant offered to settle Mr. Holiday's case alone for $380,000. The $380,000 offer was accepted by Mr. Holiday. Defendant made no settlement offers to Mr. Vo at all. Defendant refused to accept any of plaintiff's offers thereafter. Mr. Feldman declared that his focus in discovery and trial preparation was devoted to proving that upper-level management was staffed by racially prejudiced person whose biases infected the work environment. Mr. Feldman estimated that 90 percent of time and energy was devoted to proving the existence of racial bias on the part of defendant's managers. Mr. Feldman estimated that only a small portion of time (less than 5 percent) was used to prove the promotional process was infected by the upper-level management's racial bias. However, Mr. Feldman declared that the evidence supporting the unsuccessful claims for promotion and retaliation was nearly identical to the evidence offered to establish the successful harassment and failure to remedy claims.

In its opposition to the attorney fee motion, defendant indicated that the parties had agreed to ask the court to determine the following issues: "(1) whether the lodestar amount should be adjusted downward due to Plaintiff's failure to prevail on the promotion and retaliation claim, and if so, by how much; (2) whether the lodestar amount should be reduced due to the amount of the verdict; (3) whether the lodestar amount should be enhanced; and (4) the categories of hours Plaintiff's counsel cannot include as part of his attorney's fees request, e.g., time spent preparing and litigating Leon Holiday's case, and pursuing individual defendants whom Plaintiff voluntarily dismissed." The parties agreed not to address the reasonableness of the hourly rate and specific time entries. Defendant requested that the court: reduce the attorney fees by 50 percent because the discrimination and retaliation claims are not based on the same "'core facts'" as the harassment claim; reduce the lodestar amount by an additional 80 percent due to the modest verdict and any enhancement be denied because plaintiff's lawsuit was only to vindicate his own personal interests; deny any amount that would provide a double recovery for work in Mr. Holiday's case; and deny any recovery for time spent by Mr. Feldman pursuing individual defendants which were voluntarily dismissed.

After additional briefing on the issues over a period of several months, in October 1998, the trial court ruled that the unsuccessful claims arose out of the same core facts as the successful claims. In November 1998, the trial court ruled that the issue was confined to reasonable attorney fees that defendant should pay. This issue was not, in the trial court's view, whether Mr. Feldman would surrender a portion of the fees to plaintiff. On January 28, 1999, the parties filed two stipulations. The first stipulation provided that the trial court would determine of a reasonable lodestar figure within the $425,000 to $550,000 range based on the totality of the circumstances. The parties indicated that the court, in making the determination of the reasonable lodestar figure, should consider the issues raised in prior briefs. The parties further stipulated that once the lodestar amount was determined, the trial court would then determine what amount, if any, should be deducted based on the defendant's "'lack of success'" argument. In a revised stipulation submitted also on January 28, 1999, the parties agreed that a reasonable lodestar figure in the case would be $487,500. They further agreed that the only remaining issue for the court to determine was as follows, "By what percentage or amount, if any, should the stipulated lodestar figure be further reduced based on defendant's 'lack of success' argument?"

On January 29, 1999, the trial court issued its order reducing the lodestar figure by $17,500 for the unsuccessful two causes of action, making the attorney's fee award $470,000. In rendering the award, the court found that plaintiff made demands ranging from $75,000, when attorney fees were $10,000 to $200,000. At no time did defendant ever make a settlement offer. The court found defendant's claim that plaintiff over-litigated the case to ring hollow. This was in the trial court's view because defendant never offered to settle the litigation. The trial court further found the argument disingenuous because defendant spent more time defending the case than plaintiff spent prosecuting it. The court stated: "Based on the evidence the court heard at trial, it is clear inappropriate behavior consisting of racial and national origin slurs was pervasive at the Las Virgenes Municipal Water District. Accordingly, in the court's view, by filing this lawsuit plaintiff engaged in conduct which is at the core of the Civil Rights Act, i.e., exposing this kind of inappropriate conduct." The court indicated that it understood the fee was more than 10 times the amount of the jury's verdict. However, the court found the fee was justified by: defendant's complete failure to offer any amount in settlement while knowing of the wholly inappropriate conduct that its employees were engaging in; defendant's non-settlement posture in the case which more than any other factor caused the case to be so intensely litigated; and the fact that conduct which the FEHA was enacted to deter was exposed and hopefully corrected. Defendant's timely appeal followed.

III. DISCUSSION

The broad goal of the FEHA is to safeguard an employee's right to seek, obtain, and hold employment without being subjected to discrimination because of sexual preference, race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age. ( 12920; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 891; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 637.) Section 12965, subdivision (b) provides in part: "In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs . . . ." An attorney fee award under this section is reviewed for abuse of discretion. (Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 647; Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921; Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386.)

The determination for fees under section 12965 must be based upon a proper...