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Court of Appeal:
Law Authorizing Attorney-Fee Award Applies Retroactively
Case Returned to Los Angeles Superior Court for Ruling on Motion for $1.8 Million Payment by County
By a MetNews Staff Writer
A statute authorizing an award of attorney fees to a successful plaintiff in a whistleblower-retaliation suit applies to cases filed before that provision went into effect, the Court of Appeal for this district held on Friday, sending the case back to the Los Angeles Superior Court for a determination as to how much the County of Los Angeles must pay of the $1.8 million that is sought.
Presiding Justice Maria E. Stratton of Div. Eight authored the opinion reversing a judgment by Los Angeles Superior Court Judge Gregory Alarcon.
The issue is whether Labor Code §1102.5(j)—which provides that “[t]he court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions”—applies retroactively.
That provision, added to §1102.5 by Assembly Bill No. 1947, went into effect on Jan. 1, 2021. The retaliation action had been filed by Harold Winston, a 30-year employee of the Los Angeles County Department of Treasurer and Tax Collector, on Aug. 7, 2019.
Alarcon’s Ruling
After a jury found in favor of plaintiff on his retaliation claim and awarded him $257,000 in damages, Winston moved for an order that the county pay him $1,843,465 in attorney fees. Alarcon ruled:
“No legislative intent demonstrating retroactive application has been presented to this court. Without any showing of retroactive application, the request for attorney’s fees is denied.”
The judge noted that Winston had not prevailed on his cause of action under the Fair Employment and Housing Act which contains an attorney-fee provision and pre-dates the filing of Winston’s complaint.
Stratton’s Opinion
In her opinion countermanding Alarcon, Stratton made note:
“Neither party points to a California decision directly addressing the issue of whether section 1102.5, subdivision (j) applies to cases pending at the amendment’s effective date and we have found none. We have also reviewed the legislative history regarding Assembly Bill No. 1947 and it is silent as to whether the new attorney fee provision should be prospectively or retroactively applied.”
She said, however, that “[c]ase precedent establishes that a new statute authorizing an award of attorney fees applies to actions pending on the statute’s effective date.”
The jurist pointed to the California Supreme Court’s 1979 decision in Woodland Hills Residents Assn., Inc. v. City Council.
There, it was held, in an opinion by Justice Mathew Tobriner, that although Code of Civil Procedure §1021.5, authorizing the award of attorney fees in private attorney general cases, “was not on the books at the time the trial court denied plaintiffs’ motion for attorney fees, the governing authorities establish that the new statute nonetheless applies to this proceeding, which was pending on appeal at the time the legislative enactment became effective.”
Since the time of that decision, Stratton said, “California courts have consistently held” that attorney-fee provisions added by legislation, being procedural in nature, apply to pending cases.
“We thus hold section 1102.5, subdivision (j) applies to matters pending on the amended statute’s effective date, including Winston’s case,” she declared.
“Because the trial court did not ascertain the reasonableness of the fee request and had no occasion to exercise its discretion on this issue, we remand with directions to the trial court to determine in the first instance the appropriate fee award. We express no opinion on the amount to be awarded,” Stratton wrote.
The case is Winston v. County of Los Angeles, B323392.
Michael J. Curls and Nichelle D. Jordan of the Law Office of Michael J. Curls in Leimert Park represented Winston. Acting for the county were George E. Peterson and Gil Burkwitz of the Burbank firm of Peterson, Bradford, Burkwitz, Gregorio, Burkwitz, and Su.
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