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Court of Appeal:
L.A. Times Must Pay $3.5 Million Fee Award in FEHA Case
Grimes Says It Does Not
Matter That the Second of Three Trials Was Rendered a Nullity Based on
Misconduct on Part of Plaintiff’s Counsel and Appeal From
New-Trial Order Was Rejected
By a MetNews Staff Writer
The owner of the Los Angeles Times must pay the entirety of a $3,475,788.55 award of attorney fees and costs in a case brought by a sports columnist who was found by a jury to have been the victim of employment discrimination, the Court of Appeal has held, rejecting the defendant’s contention that no money should be owed in connection with the second of three trials given that it was nullified based on misconduct of a plaintiff’s lawyer.
Underlying the result is the view that there is an especial need for fee-shifting in actions under the Fair Employment and Housing Act (“FEHA”) that are ultimately successful even to the extent of ordering fees and costs in discrete proceedings in the course of the litigation that failed owing to misbehavior of counsel for the aggrieved party.
The decision came Friday in an opinion by Justice Elizabeth A. Grimes of this district’s Div. Eight. Her opinion affirms a postjudgment order by Los Angeles Superior Court Judge Armen Tamzarian in favor of Thomas J. Simers (now deceased), who wrote under the byline of “T.J. Simers.”
Not in issue in the appeal was a $1.25 million jury award at the third trial. Defendant Los Angeles Times Communications LLC satisfied that award on June 7, 2022, paying $1,292,123.29, inclusive of interest.
Simers died last June 2 of a brain tumor at age 73 His widow, Virginia “Ginny” Simers, as executor of the estate, was substituted as the appellant.
Issue Delineated
Grimes said in Friday’s opinion:
“The primary issue is the defendant’s contention that the plaintiff should not have recovered any fees for counsel’s work on the second trial, because the third trial was necessitated by counsel’s misconduct in closing argument at the second trial.”
One of his lawyers—Courtney Rowley, now of Decorah, Iowa—had argued, impermissibly, that damages should be assessed based on the wealth of the defendant and its consequent ability to pay.
That dereliction, and other inappropriate conduct, Grimes declared, should not bar recovery of fees earned by the firm representing Simers at the second trial.
Lowered Quality
Hired by the Times in 1990, Simers was given a column in 2000, suffered in 2013, at age 62, an episode akin to a “mini-stroke,” was viewed at the Times, after resuming his duties, as exhibiting diminishing abilities and was cut back from three columns a week to two with the explanation that this would give him more time to write, and was then suspended pending a look into a possible ethics violation. He was reinstated, but was demoted in 2013 to the position of a senior reporter without a cut in his $234,000 salary.
The journalist resigned that year and worked, briefly, for the Orange County Register, accepting a voluntary buyout in 2014.
He sued the Times for age and disability discrimination, in violation of the FEHA, and for constructive termination.
MacLaughlin’s Ruling
At the first trial, in 2015, the jury found for Simers on both causes of action and awarded damages in the amount of $7,137,391. Then-Superior Court Judge William MacLaughlin (now retired) granted the defendant a judgment notwithstanding the verdict on constructive discharge and economic damages, ordering a new trial on noneconomic damages based on the FEHA violation, and the Court of Appeal affirmed.
The jury at the second trial, in 2019, awarded noneconomic damages of $15,450,000 but MacLaughlin granted a new trial based on Rowley’s misconduct. There was no appeal.
Tamzarian was assigned to preside over the third trial after MacLaughlin retired. In denying the Times’s motion to withhold any award of attorney fees or costs for work done at the second trial or on the unsuccessful appeal from the judgment following the first trial, he said:
“At oral argument, defendant conceded that whether plaintiff can recover fees in the second trial or on appeal is a matter that falls within the court’s discretion. In its discretion, the court shall not deny plaintiff recovery of all fees related to the second trial and appeal. That result would be too harsh. It would also undermine the policy underlying awarding attorney fees to successful FEHA plaintiffs—providing access to counsel to victims of invidious discrimination and other civil rights violations.”
Contention on Appeal
The Times argued in its opening brief on appeal:
“ Although counsel’s work on a successful FEHA claim generally would be compensable, no case cited by the parties or the trial court involved work on one discrete trial that was rendered a nullity by an order granting a new trial…—let alone a new trial order based on egregious, prejudicial misconduct by the prevailing party’s counsel….
“In this scenario, the trial court should be required to address not only whether the plaintiff ultimately prevailed on the claims litigated at the second trial, but also whether attorney time on that trial was unrelated to the prevailing plaintiff’s eventual success.”
The appellant contended:
“In total, at least $614,950 of the $3,264,906 fee award pertained solely to work billed on Simers’s unsuccessful appeal and the nullified second trial. The record and applicable law uniformly show such work was entirely unrelated to Simers’s success in this litigation—i.e., the judgment of liability from the first trial and the noneconomic damages award from the third….Neither Simers nor the trial court asserted otherwise.”
It added:
“By The Times’s calculations, at least $101,589 of the cost award pertained to the 2019 trial alone.”
Grimes’s Opinion
Grimes wrote:
“We begin by acknowledging the absence of any precedents presenting what defendant refers to as ‘this scenario,’ that is, a case involving an attorney fee award that includes work on a ‘discrete trial,’ where a new trial is required because of misconduct by plaintiff’s counsel in closing argument (and excessive damages). But neither the existing precedents nor the record in this case supports the result defendant seeks, which would in effect eliminate the court’s discretion in ‘this scenario.’ ”
She took issue with the assertion in the appellant’s opening brief that work done at the second trial was “entirely unrelated” to the ultimate victory, saying that the brief “applies the term ‘entirely unrelated’ in a manner that has not been used in any of the precedents defendant cites.”
‘Basic Principle’
The jurist went on to say:
“Defendant loses sight of the basic principle that a FEHA plaintiff is entitled to compensation for all time reasonably spent on the litigation in which he prevailed. Defendant would have the trial court rule that none of the time spent on the second trial was reasonably spent because of misconduct that occurred at the very end of the trial.”
She declared:
“[T]there is no precedent for restricting the trial court’s discretion in cases where attorney misconduct is involved. And there is no precedent for eliminating attorney fees entirely for a discrete trial on identical issues by claiming it is ‘unrelated’ to eventual success in a new trial.”
The same reasoning, Grimes said, applies to the award of costs.
Cross Appeal
Simers had cross appealed, maintaining that he was wrongfully denied attorney fees and costs incurred after Dec. 7, 2021, when he declined the Code of Civil Procedure §998 offer of compromise for §1.25 million—the very figure at which the third jury set damages.
That section says, in part:
“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.”
Simers took the position that it he had accepted the offer, he would have been entitled to costs, so the total recovery would have exceeded $1.25 million.
Grimes scoffed:
“Plaintiff completely ignores the unambiguous statutory language, insisting defendant’s section 998 offer excluded fees he would have recovered had he accepted the offer. But defendant’s offer of $1.25 million plus preoffer fees and costs was no different from what the statute itself requires in determining whether plaintiff has obtained a more favorable judgment: postoffer costs are excluded. Plaintiff’s opening brief does not acknowledge the dispositive statutory language at all, and his reply brief says it is ‘off point. It is not.”
The case is Simers v. Los Angeles Times Communications LLC, B323715.
Representing Simers on appeal were Carney Shegerian and Jill McDonell of the West Los Angeles firm of Shegerian & Associates. Acting for the Times were Linda Miller Savitt and John J. Manie of the Encino firm of Ballard Rosenberg Golper & Savitt, and Michael Schonbuch of the Century City firm of Daniels, Fine, Israel, Schonbuch & Lebovits.
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