California employment case index

The Department of Consumer Affairs refused to discuss settlement, refused to stipulate to an amendment, demurred, moved for summary adjudication, rejected a $600,000 section 998 offer and lost a six-week trial – and then appealed the $4,889,786.03 fee award that followed. Division Eight affirmed all of it: top-of-market Los Angeles rates supported by the trial judge's own observation of counsel, a 1.75 multiplier through verdict and 1.25 on the fee litigation, and two holdings with reach – that a fee payable from public funds does not bar an enhancement, and that Ketchum's rule does not apply to FEHA fees, which section 12965 makes discretionary and therefore contingent until the final fee order.

A jury found that the Department of State Hospitals discriminated against Ashley Howell because of a mental disability, and awarded her lost earnings, lost health insurance, and nothing for pain and suffering. By the end of the appeal the insurance award was gone, the zero pain-and-suffering verdict stood, and a $1.75 million attorney fee request had been reduced to $135,102. The insurance award fell because Howell proved an obligation rather than a loss: she introduced a premium invoice she never paid, and she bought no replacement coverage, so there was nothing to compensate. The fee award survived because the trial court could not audit block-billed hours and because the request had grown more than tenfold from counsel's own pretrial estimate. Howell's only appellate win was a remand to rule on the prejudgment interest nobody had opposed. This is an adverse decision, and its value to the plaintiff's bar is as a checklist of what the damages and fee record has to contain.

Government Code section 12965(b) governs both fee and cost awards in FEHA actions and makes them discretionary under the asymmetric Christiansburg standard: a prevailing plaintiff ordinarily recovers fees and costs, but a prevailing defendant may recover them only if the action was objectively frivolous, unreasonable,…

There is no California statute or case law authorizing or prohibiting employee time rounding, so Division One borrowed the federal rule: an employer may round punch times to the nearest tenth of an hour if the policy is fair and neutral on its face and, as applied, does not fail over time to compensate employees for the time they actually worked. The posture is narrow – a writ vacating summary adjudication on two of the employer's affirmative defenses, with the court expressly leaving open whether either side will prevail. The plaintiff's expert lost the case by treating the employer's separate grace-period policy as if it were rounding. Whether neutral rounding survives at all is now pending before the California Supreme Court in Camp v. Home Depot, S277518.

Attorney fees awarded under section 12965 belong to the attorneys whose services earned them, except to the extent the attorneys and client have entered an enforceable agreement providing otherwise; the portion of a statutory fee award exceeding fees the client already paid does not belong to the client by default.

In Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, a unanimous California Supreme Court resolved three recurring procedural and damages questions: a postjudgment order denying discovery-sanction (cost-of-proof) attorney fees is separately appealable; a personal-injury plaintiff bears the burden of proving which portion of a general award is “damages for personal injury” before claiming Civil Code section 3291 prejudgment interest; and that interest never accrues on punitive damages. The court reversed the Court of Appeal and remanded.