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C.A. Affirms Fee Award Which Slashed Amount by More Than $1.5 Million
Opinion Says There Was No Abuse of Discretion in Cutting Fees to Amount Close to Estimate Given at Settlement Conference Seven Months Earlier
By a MetNews Staff Writer
Div. Two of the First District Court of Appeal has held that there was no abuse in discretion in ordering the payment of attorney fees to a prevailing party in an employment disability discrimination action in the amount of $135,102 although the plaintiff had claimed entitlement more than $1.7 million.
The court found that the reduced award was justified by findings by the trial judge that the plaintiff’s initial fee request was “striking” and that the time reportedly spent on various delineated matters was “shocking” and “beyond all reason,” determinations which were only exacerbated by the submission of “block-billed” records—a practice in which multiple tasks are logged as a single time entry.
Appealing the award was Ashley Howell, who filed a complaint against her former employer, the Department of State Hospitals (“DSH”), after her employment was terminated on Jan. 24, 2020. Howell, at the time a pre-licensed psychiatric technician, was on medical leave from the California Department of Corrections and Rehabilitation (“CDCR”) when she accepted the job at DSH on Jan. 2, 2020, a fact she did not disclose to her new employer.
Howell had submitted a doctor’s note to CDCR stating that she could not return to work before Feb. 23 and that she was unable to work with prison inmates due to depression and panic attacks—during which she suffered difficulty breathing—following a 2017 sexual assault by a patient inmate at a CDCR hospital. She failed to note any “nervous system” injuries or panic attacks on her intake health questionnaire with DSH. CDCR informed DSH of Howell’s leave status two days before she was fired.
She sued the state hospital system, asserting claims under the Fair Employment and Housing Act, codified at Government Code §12940 et seq., for mental and physical disability discrimination, among other claims. After three years of litigation and a two-week trial, a jury found that she had been unlawfully discriminated against and awarded her $28,941 in lost earnings but nothing for pain and suffering.
In July 2023, Howell, who was represented by Adam Blair Corren and Spencer D. Sinclair of the Stockton-based Law Offices of Corren & Corren, filed a motion requesting $1.75 million in attorney fees under Government Code §12965, which provides for awards to the prevailing party in certain employment discrimination actions.
Her counsel calculated the lodestar—the number of hours reasonably expended multiplied by a reasonable hourly rate—to be $997,400, based on hourly rates of $750 for the partner attorney and $650 for an associate, and sought a 1.75 multiplier. They claimed a total of 1,444 hours of work, more than two-thirds of those hours being attributable to trial preparation.
At a settlement conference seven months earlier, Howell estimated her attorney fees and costs to be $123,101.95.
Napa Superior Court Judge Scott R.L. Young awarded her $135,102 in fees, acknowledging that there was no dispute that she was entitled to fees under §12965 but finding her $1.75 million request to be “unsupportable.”
He declared that the “solution that presents the least risk of effecting injustice is reliance on [Howell’s] January 4, 2023, estimate, which sought $123,102 in fees and costs” and that an additional $12,000 was sufficient to cover the seven additional months of litigation, calculated at $500 hourly rates attributable to an extra 12 hours of work by each of her two lawyers.
Young declined to apply a multiplier to the amount.
Justice Tara M. Desautels authored the opinion, originally filed Nov. 7 and certified for publication on Thursday, affirming the award. Acting Presiding Justice James Richman and Justice Marla J. Miller joined in the opinion.
Calculation of Award
Desautels said:
“Trial courts may increase or decrease the lodestar ‘by applying a positive or negative “multiplier” to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.’….The choice of a fee calculation method is generally one within the discretion of the trial court.”
She noted that a fee request that appears “unreasonably inflated” is a “special circumstance” permitting a trial judge to reduce or deny the award.
Howell claims that Young “falsely accused” her counsel of “inaccurate arithmetic,” marginalized her success, and improperly considered a pretrial offer by DHS to settle the case for $30,000 in reducing the requested award.
Addressing Concerns
Addressing the plaintiff’s arguments, the jurist wrote:
“The court raised the discrepancy in Howell’s computation of total hours expended not as a basis for reducing the requested fees, but rather, in noting that counsel did not provide the court with a means of auditing ‘the block billing breakdown,’ which the court found to be ‘outside all bounds of reason.’ That counsel correctly added unreasonable hours together does not impact the court’s finding of unreasonableness.”
She continued:
“Similarly, in recounting the ‘context’ of the fee motion, the court explained that Howell ‘asserted five causes of action’ but ‘prevailed on only one’ and that DSH offered to settle Howell’s claims for $30,000 ‘[s]ome four months before trial.’ Both are accurate statements, and there is no discussion of apportionment or reduction that would suggest the trial court placed weight on either fact.”
Desautels was unpersuaded that Young had placed undue weight on the pretrial settlement conference statement, saying:
“The court, in detail and consistent with approved methods of fee calculation, found that the total hours expended were ‘outside all bounds of reason given the number of issues involved in the matter and their relative lack of complexity.’ Further, Howell’s ‘surreptitious’ addition of a multiplier rendered the requested rates unreasonable. Thus, the court determined ‘that $500 per hour is a reasonable hourly rate’ but had ‘no systematic way to audit’ the number of hours because Howell’s counsel submitted only ‘block-billed’ summaries. Given the unreasonably inflated fee request, the court was authorized to substantially reduce the requested amount (or deny the request altogether).”
The case is Howell v. State Department of State Hospitals, 2024 S.O.S. 3823.
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