Lampkin v. County of Los Angeles

Facts

Two Labor Code provisions frame the appeal. Section 1102.5 “prohibits employers from retaliating against whistleblowing employees, and allows an employee who ‘brings a successful action’ under that section to recover their attorney’s fees (Lab. Code, § 1102.5, subd. (j)).” (Lampkin v. County of Los Angeles (2025) 112 Cal.App.5th 920, 924.) Section 1102.6, in turn, “affords employers an affirmative defense, if they prove the alleged retaliatory action ‘would have occurred for legitimate, independent reasons’ had the employee not been a whistleblower” — the “same-decision defense,” which operates in what the cases call “mixed-motive” cases. (Ibid., citing Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 and Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214, 239.) Under Lawson, section 1102.6 supplies “a complete set of instructions for the presentation and evaluation of evidence in section 1102.5 cases”: the plaintiff must prove protected whistleblowing activity that was “a contributing factor” in the employer’s adverse action, and the employer may then prove it would have taken the same action anyway for “legitimate, independent reasons.” (Id. at pp. 926–927.)

D’Andre Lampkin, a deputy with the Los Angeles County Sheriff’s Department, stopped to investigate a man on suspicion of soliciting a prostitute. The man turned out to be Michael Reddy, a retired deputy sheriff having lunch in his car with his long-term girlfriend, and the encounter produced two irreconcilable accounts: Lampkin said Reddy showed his badge and warned that “he still had connections at LASD,” implying Lampkin should leave him alone; Reddy said Lampkin threatened him after making “a crude and sexual remark” in front of Reddy’s girlfriend. (Lampkin, supra, 112 Cal.App.5th at p. 925.) Lampkin reported the interaction to his supervisor; Reddy complained to the department. According to Lampkin, Reddy’s friends then instigated a series of retaliatory actions against him, “including a suspension, a search of his residence, and termination of medical benefits.” (Ibid.)

In August 2017, Lampkin sued the County on a single cause of action for whistleblower retaliation under section 1102.5. The prayer would prove decisive: the complaint “sought monetary damages and ‘[s]uch other and further relief as the [c]ourt may deem just and proper.’ It did not request an injunction or declaratory relief.” (Lampkin, supra, 112 Cal.App.5th at p. 925.)

Procedural history

The case was tried to a jury in early 2023, and the February 10, 2023 special verdict split the difference: Lampkin had engaged in activity protected by section 1102.5, and that activity was a factor in the department’s actions against him — but the department “would have made the same decisions anyway, for independent and legitimate reasons.” The jury awarded no damages. (Lampkin, supra, 112 Cal.App.5th at p. 925.)

Lampkin then moved to amend his complaint to add requests for injunctive and declaratory relief; the trial court denied the motion, and Lampkin did not challenge that ruling on appeal. (Lampkin, supra, 112 Cal.App.5th at pp. 925, 927.) He next moved for an order declaring him the prevailing party under Harris — which holds that in FEHA cases a same-decision defense bars damages but “does not preclude a fee award” — and the trial court agreed that Harris “extends to suits under section 1102.5.” (Id. at p. 925.) The January 22, 2024 judgment incorporated the special verdict, declared Lampkin the prevailing party, and awarded him costs of $52,043.65; a March 8, 2024 order added $400,000 in attorney’s fees. The County appealed both. (Ibid.) The Court of Appeal reversed and directed entry of a new judgment in favor of the County (id. at pp. 933–934), and the Supreme Court denied review on September 17, 2025.

Issue

“We must decide if Lampkin has brought a ‘successful action’ under section 1102.5, subdivision (j), and is therefore entitled to a fee award” — where the plaintiff proved the elements of whistleblower retaliation but the employer established the section 1102.6 same-decision defense and the plaintiff obtained no relief. (Lampkin, supra, 112 Cal.App.5th at p. 924.) A second question followed: whether such a plaintiff, or instead the defending employer, is the “prevailing party” entitled to costs as a matter of right under Code of Civil Procedure section 1032. (Id. at p. 926.)

Holding

Reasoning

The text controls: fees follow a “successful action,” and success means relief. The court began from the American rule — “[l]itigants are ordinarily responsible for paying their own attorney’s fees, unless a statute or agreement provides otherwise” (Lampkin, supra, 112 Cal.App.5th at p. 926, quoting Travis v. Brand (2023) 14 Cal.5th 411, 417) — and reviewed the statutory question de novo (ibid., citing Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332). Section 1102.5, subdivision (j) authorizes fees “to a plaintiff who brings a successful action for a violation of these provisions.” Both sides carried their burdens at trial: Lampkin proved his elements, and the County proved its defense. That combination “defeated Lampkin’s claim for money damages,” his complaint “did not seek any other kind of substantive relief,” and “[o]rdinarily, those circumstances would result in judgment for the defense.” (Id. at p. 927, citing Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 387–388.) “Because Lampkin obtained no relief, we find the County’s argument persuasive.” (Id. at p. 926.)

Harris does not govern — first, because it decided a different question. In Harris, the Supreme Court held that a FEHA same-decision defense “is not a complete defense to liability”: it bars damages (any payment would be an “unjustified windfall”), but leaves room for declaratory or injunctive relief and for attorney’s fees. (Lampkin, supra, 112 Cal.App.5th at pp. 927–928, citing Harris, supra, 56 Cal.4th at pp. 225, 233–235.) But Harris arose from an instructional error; the plaintiff there had actually won $177,905 at trial before the reversal and remand. “The court did not face a scenario like this one, in which the plaintiff failed to obtain any relief and nevertheless recovered attorney’s fees. ‘A case is not authority for a proposition not considered therein or an issue not presented by its own particular facts.’” (Lampkin, at p. 928, quoting McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5th 596, 611.)

Second, the fee statutes are worded differently — and the difference does the work. The FEHA provision before the Harris court gave fees “in its discretion … to the prevailing party” (Gov. Code, former § 12965, subd. (b)), which “clearly vested the trial court with discretion to decide which party had prevailed and to keep any fee award proportional to that party’s success.” (Lampkin, supra, 112 Cal.App.5th at p. 928.) “Section 1102.5, subdivision (j) does not: fees are only available to ‘a plaintiff who brings a successful action.’ An action is not successful when the defendant bars the plaintiff’s requested relief by interposing an affirmative defense.” (Ibid., citing Hsu v. Abbara (1995) 9 Cal.4th 863, 865–866, 876–877 [an unqualified decision in the defendant’s favor makes the defendant “unquestionably the sole victor”].)

Third, section 1102.6 leaves no gap for policy analysis to fill. Harris reached its remedial compromise only after canvassing FEHA’s purposes, because FEHA’s bare “because of” standard offered no procedural instructions for mixed-motive cases. Section 1102.6 is different: it is “a complete set of instructions” (Lawson, supra, 12 Cal.5th at p. 712), and the court needed “only follow” them. “In a mixed-motives case, the plaintiff meets that burden, because there is at least one illicit motive that affected the decision. The burden is then on the defendant to prove their same-decision defense. If they do so, there the instructions end, and so does the case. The statute does not include an exception to the same-decision defense, a limitation on its extent, or any other indication that a plaintiff may yet recover attorney’s fees.” (Lampkin, supra, 112 Cal.App.5th at p. 929, citations omitted.) And Harris itself “warns against analogizing FEHA to section 1102.6,” having refused to import section 1102.6’s clear-and-convincing standard into FEHA because “the use of different language in different statutes usually requires a different construction.” (Ibid., citing Harris, supra, 56 Cal.4th at p. 239.)

Veverka supplies the closest authority — and it cuts against the plaintiff. In Veverka, an identical special-verdict pattern produced a defense judgment, and the plaintiff argued the same-decision defense barred only damages, not declaratory relief. The Court of Appeal affirmed the judgment: “because section 1102.6 neither distinguishes between the forms of relief available nor sets forth any exemptions, a defense under that section bars all forms of relief,” and because the Legislature “‘has spoken’” through section 1102.6, “following Harris would supplant the Legislature’s directions, not fill a gap where there were no directions.” (Lampkin, supra, 112 Cal.App.5th at pp. 929–930, quoting Veverka, supra, 102 Cal.App.5th at p. 174.) The court rejected Lampkin’s contention that Veverka converted the defense into an element of the claim in conflict with Lawson: Veverka “contains no such holding” — its discussion of the defense as a legislative limitation on liability “merely suggests the Legislature’s reason for including the defense.” (Id. at p. 930.) Nor was section 1102.6’s “silence” about the defense’s legal effect an invitation to import Harris: “Where the complete set of instructions provides for a defense and does not limit its reach, the natural inference is that no such limitations exist.” (Id. at pp. 930–931.) Tellingly, “Lampkin cites no case in any context where a plaintiff who failed to obtain any relief was considered successful in the action.” (Id. at p. 929.)

Costs follow the same logic: “recover” means gain by legal process. Code of Civil Procedure section 1032, subdivision (b) entitles “a prevailing party … as a matter of right to recover costs,” and subdivision (a)(4) enumerates who qualifies — including “a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Lampkin, supra, 112 Cal.App.5th at p. 931.) “Neither the County nor Lampkin obtained any relief here—the County sought none, and Lampkin did not get what he sought.” To “recover” means “‘“‘to gain by legal process,’”’” and “Lampkin gained nothing from the trial.” (Ibid., quoting DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1153.) His riposte that he “prevailed on liability at trial” failed: carrying one’s burden of proof “is not the same as prevailing in the action” when the defense carried its burden too. (Id. at pp. 931–932.) Pirkig v. Dennis (1989) 215 Cal.App.3d 1560 — where plaintiffs proved liability and damages but were zeroed out by a settlement offset — was distinguishable (“Lampkin did not win at trial”) and, in any event, has been “implicitly disapproved” by Goodman, which held that offsets do alter what a party has “recovered.” (Id. at p. 932, citing Goodman, supra, 47 Cal.4th at pp. 1330, 1335–1338.) The County therefore fit two express prevailing-party categories, leaving no residual discretion for the trial court to exercise. (Ibid.)

The policy plea belongs across the street. The court closed by engaging Lampkin’s — and the trial court’s — strongest instinct: that FEHA and the whistleblower statutes serve comparable purposes and should carry comparable fee consequences. “It is true that the policies behind section 1102.6 would be served, just as the policies behind FEHA are served, by providing the plaintiff in every mixed-motives case the chance to recover attorney’s fees. … We understand why extending Harris would be a rational policy choice. [¶] Nevertheless, it is not our role to make that choice.” (Lampkin, supra, 112 Cal.App.5th at p. 933, citing Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241, 252.) “Pending further guidance from our Supreme Court,” the panel applied the statutes “as they are presently written,” and left it “to the Legislature to decide whether the law governing attorney’s fees in whistleblower cases should be the same as the law governing fees in FEHA cases.” (Ibid.)

Significance

Lampkin completes the doctrinal arc that began with Lawson. Lawson confirmed that section 1102.6 — not McDonnell Douglas — governs section 1102.5 claims, giving plaintiffs a favorable “contributing factor” standard and forcing employers to prove the same-decision defense by clear and convincing evidence. Vatalaro showed the defense winning summary judgment outright. Veverka held the established defense bars all forms of relief, not just damages. Lampkin now supplies the endgame economics: an established defense not only zeroes out the plaintiff’s recovery but extinguishes section 1102.5(j) fees and flips prevailing-party costs to the employer. The whistleblower plaintiff who proves retaliatory motive but loses on the defense goes from a potential fee-shifted victory to writing a costs check — here, a swing from roughly $452,000 in fees and costs awarded below to a judgment for the County plus its recoverable costs. (Lampkin, supra, 112 Cal.App.5th at pp. 925, 932–934.)

The decision also cements a stark asymmetry within California employment law. The same phrase — “same-decision defense” — now produces opposite fee consequences depending on the statute: under FEHA, Harris preserves the possibility of declaratory or injunctive relief and attorney’s fees even when the defense defeats damages; under section 1102.5, Veverka and Lampkin read the Legislature’s “complete set of instructions” to end the case, full stop. (Lampkin, supra, 112 Cal.App.5th at pp. 927–931.) The panel was transparent that this is a textual result, not a policy judgment — it conceded extending Harris “would be a rational policy choice” and expressly invited legislative correction. (Id. at p. 933.) With review denied on September 17, 2025, and no published authority to the contrary, the fee question is settled at the Court of Appeal level unless and until the Supreme Court or the Legislature intervenes. Two limits deserve emphasis: the holding is expressly conditioned on the plaintiff having “obtain[ed] no relief,” and section 1102.5(j) runs one way — it authorizes fees only to plaintiffs, so the employer’s victory yields costs, not fees. (Id. at pp. 924, 928, 931–933.)

Key quotes

“We hold an employee’s action is not successful if the defendant employer has established the same-decision defense and the plaintiff obtains no relief.” (Lampkin, supra, 112 Cal.App.5th at p. 924.)

“An action is not successful when the defendant bars the plaintiff’s requested relief by interposing an affirmative defense.” (Id. at p. 928.)

“If they do so, there the instructions end, and so does the case. The statute does not include an exception to the same-decision defense, a limitation on its extent, or any other indication that a plaintiff may yet recover attorney’s fees.” (Id. at p. 929.)

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Practice pointer

Open questions

The panel’s own hedge — “[p]ending further guidance from our Supreme Court” — marks the largest open question: whether the Supreme Court will ultimately harmonize the fee regimes of FEHA and the whistleblower statutes, or leave the asymmetry in place. Review was denied here, which settles nothing on the merits at that level. (Lampkin, supra, 112 Cal.App.5th at p. 933.) The holding’s express condition — the defense is established and “the plaintiff obtains no relief” — leaves room for argument in cases where a plaintiff does obtain something: partial relief on another claim, relief against another defendant, or (if a future court departs from Veverka) equitable relief notwithstanding the defense. (Id. at p. 924.) Whether any form of relief can survive an established section 1102.6 defense is itself not finally settled: Lampkin endorsed Veverka’s all-forms-barred reading in passing, but the Supreme Court has never addressed it. (Id. at pp. 930–931.) The court also flagged, without resolving, the fee-costs split embedded in the statute: section 1102.5(j) “speaks only of attorney’s fees,” so costs travel independently under Code of Civil Procedure section 1032 — an architecture that produced the County’s costs entitlement here and will govern hybrid outcomes in future cases. (Id. at p. 928, fn. 4.) Finally, the decision is an open invitation to Sacramento: the court said extending Harris “would be a rational policy choice” and left the matter “to the Legislature.” (Id. at p. 933.) Whether the Legislature amends section 1102.5(j) — as it has repeatedly strengthened whistleblower protections elsewhere — is the development to watch.