RENEE VINES, Plаintiff and Appellant, v. O‘REILLY AUTO ENTERPRISES, LLC, Defendant and Respondent.
B301000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
January 21, 2022
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. PC058046)
Mayall Hurley, William J. Gorham III and Nicholas F. Scardigli for Plaintiff and Appellant.
Higgs Fletcher & Mack, John Morris, James M. Peterson, Derek W. Paradis and Rachel M. Garrard for Defendant and Respondent.
Renee Vines sued his former employer O‘Reilly Auto Enterprises, LLC for violations of the Fair Employment and Housing Act (FEHA) (
FACTUAL AND PROCEDURAL BACKGROUND
1. Vines‘s Complaint
On October 16, 2017 Vines filed a complaint against O‘Reilly alleging he was a 59-year-old Black man who had been subjected during his employment with O‘Reilly to discriminatory treatment and harassment by his supervisor Tim Fonder and others because of his agе and race. For example, Fonder allegedly created false and misleading reviews of Vines, yelled at him and denied his requests for training given to younger, non-Black employees.
2. O‘Reilly‘s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
On July 26, 2018 O‘Reilly moved for summary judgment or, in the alternative, summary adjudication as to each of Vines‘s claims. The trial court denied O‘Reilly‘s summary judgment motion, finding triable issues of material facts existed—including as to whether O‘Reilly had been motivated by racial animus in taking disciplinary action against Vines and retaliated against Vines for his complaints—but granted summary adjudication of Vines‘s causes of action for age discrimination and age harassment, finding Vines had failed to present any evidence his age had anything to do with his termination or O‘Reilly‘s alleged discrimination, harassment or retaliation.
3. The Jury Trial
The parties tried the remaining fоur causes of action before a jury for two weeks in April and May 2019. For Vines‘s retaliation claim the jury was instructed, in part: “Mr. Vines does not have to prove discrimination or harassment in order to be protected from retaliation. If he reasonably believed that O‘Reilly‘s conduct was unlawful he may prevail on a retaliation claim even if he does not present, or prevail on, a separate claim for discrimination or harassment.” The jury returned its verdict on May 3, 2019, finding against Vines on his race discrimination (disparate treatment) and harassment claims: The jury found Vines‘s race was not a substantial motivating reason for O‘Reilly‘s discharge or other adverse employment action and Vines was not subjected to unwаnted harassing conduct because of his race. Vines, however, prevailed on his retaliation and failure to prevent retaliation claims. For his retaliation claim, as reflected on the special verdict form, the jury‘s findings included that Vines had “complain[ed] to a supervisor, human resources or the T.I.P.S. Hotline of what he reasonably believed to be race discrimination, race
4. Vines‘s Motion for Attorney Fees and O‘Reilly‘s Opposition
On July 16, 2019 Vines, pursuant to
Vines also argued a downward lodestar adjustment was not warranted because the retaliation and failure to prevent retaliation claims on which he prevailed were related to the unsuccessful unlawful discrimination and harassment claims. He further asserted he had obtained full, not limited, success, as shown, among other factors, by the verdict form‘s providing for a single award of damages regardless of the number of FEHA violations to be found by thе jury.
In its opposition to Vines‘s attorney fee motion O‘Reilly contended Vines was not the prevailing party for purposes of an award of attorney fees; but, even if he were, his fee request should be denied altogether because the amount of fees he requested was excessive given the nominal jury award and Vines‘s limited success: The jury had awarded Vines only $70,200 even
O‘Reilly argued in the alternative the fee amount should be substantially reduced because a court has discretion to limit fees for unsuccessful causes of action if they were not related to the successful causes of action or the plaintiff did not obtain substantial relief. O‘Reilly asserted Vines‘s FEHA claims were not interrelated and, even if the trial court were to find otherwise, Vines had obtained only limited success in the litigation, not substantial relief or “excellent results,” for the reasons O‘Reilly had already stated in arguing for a denial of any fees. Vines‘s attorneys spent more than 75 percent of their time on Vines‘s race harassment and discrimination claims, O‘Reilly contended, and his attorneys should not be compensated for time spent litigating the unsuccessful claims.
O‘Reilly also argued the court should make additional reductions for certain unreasonable billing entries; the unreasonable hourly rates of Vines‘s attorneys; and Vines‘s unreasonablе settlement stance.4 O‘Reilly further argued a downward adjustment of the lodestar figure to 33 percent of the requested amount should be applied in part because Vines had prevailed only on one-third of his claims.
5. The Hearing and Order on Vines‘s Fee Motion
The trial court heard argument on September 9, 2019. Vines‘s attorney told the court he had always thought of the matter as primarily a retaliation case and the only reason the discrimination and harassment claims had been included was that the same evidence would have to be presented. He explained, “We would have had to go into those factual predicate evidence or the factual predicate that Mr. Vines had a reasonable belief for his claims of harassment and discrimination such that his complaints were protected conduct triggering a retaliation claim“; “[W]e can envision a trial where we only have the retaliation claim and we would still have had to present the same evidence of the underlying discrimination/harassment facts so that we can show that he had a reasonable belief.”
The court also agreed to reductions for certain fees O‘Reilly had argued were not reasonably incurred; reduced the hourly rate for Vines‘s attorney Nicholas Scardigli; rejected O‘Reilly‘s argument that Vines should not recover any fees incurred after O‘Reilly‘s reasonable settlement offers;6 and declined to give an upward or downward multiplier to the lodestar figure. Taking Vines‘s requested lodestar amount of $647,745, the court subtracted $129,583.23, representing the amount of reductions for specific fees not reasonably incurred and for Scardigli‘s deсreased hourly rate, resulting in a subtotal of $518,161.77, which the court then reduced by 75 percent to account for Vines‘s failure to recover on the unsuccessful claims. The court awarded Vines a total attorney fee amount of $129,540.44.
1. Governing Law and Standard of Review
“In order to calculate an attorney fee award under the FEHA, courts generally use the well-established lodestar method. The lodestar amount is simply the product of the number of hours spent on the case, times an applicable hourly rate.” (Caldera v. Department of Corrections & Rehabilitation (2020) 48 Cal.App.5th 601, 607; see, e.g., Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249.) “The trial court then has the discretion to increase or reduce the lodestar figure by applying a positive or negative ‘multiplier’ based on a variety of factors.” (Taylor, at p. 1249; see Hensley v. Eckerhart (1983) 461 U.S. 424, 434 [103 S.Ct. 1933] (Hensley) [“[t]he product of reasonable hours times a reasonable rate does not end the inquiry“; other considerations remain that may lead a court “to adjust the fee upward or downward, including the important factor of the ‘results obtained’ “].)8
“California law, like federal law, considers the extent of a plaintiff‘s success a crucial factor in determining the amount of a prevailing party‘s
and therefore no fee may be awarded for services on the unsuccessful claim.” (Hensley, supra, 461 U.S. at pp. 434-435; see Chavez, at p. 989 [“California law is consistent with federal law” that, “[i]f a plaintiff has prevailed on some claims but not others, fees are not awarded for time spent litigating claims unrelated to the successful claims“].)
If, in contrast, a lawsuit consists of related claims, the attorney fee amount awarded for a plaintiff who has obtained “substantial relief” should not be reduced merely for the reason the plaintiff did not succeed on each contention raised. (Hensley, supra, 461 U.S. at p. 440.) Nevertheless, even though fees are not reduced simply because “a plaintiff prevails on only one of several factually related and closely intertwined claims,” “a reduced fee award is appropriate when a claimant achieves only limited success.” (Chavez, supra, 47 Cal.4th at p. 989; see Hensley, at p. 436 [if “a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount,” “even where the plaintiff‘s claims were interrelated, nonfrivolous, and raised in good faith“].) But “[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” (Hensley, at p. 435.)
We review an attorney fee award under FEHA for an abuse of discretion. (See Caldera v. Department of Corrections & Rehabilitation, supra, 48 Cal.App.5th at p. 606; Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1200.) “However, ‘[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court‘s ruling under review. The trial court‘s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 521; accord, Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; see Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1481; Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378.)
Vines asserts the trial court‘s ruling his unsuccessful discrimination and harassment claims were not sufficiently related to or factually intertwined with his successful retaliation-based claims was рredicated on a legal error and the court thus abused its discretion in reducing the amount awarded on this ground. Specifically, he argues the trial court‘s ruling was based on a faulty temporal analysis that failed to recognize he had to present evidence of the conduct underlying his discrimination and harassment claims to prove the reasonableness of his belief that such conduct was unlawful, as required to succeed on his retaliation cause of action.10
“The retaliation provision of FEHA forbids an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under’ FEHA.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192; see
We agree the trial court abused its discretion in determining Vines‘s reasonable attorney fees. The trial court stated it found the claims were not sufficiently related or factually intertwined because “any facts related to [Vines] being retaliated against arose after [he] complained about the discrimination and harassment conduct.” That statement reflects a legal error. Evidence of the facts regarding the alleged underlying discriminatory and harassing conduct about which Vines had complained was relevant to establish, for the retaliation cause of action, the reasonableness of his belief that conduct was unlawful. (See Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1535 [“[e]vidence of Hickman‘s conduct was probative as to whether Lewis engaged in protected activity, because it wаs relevant to whether Lewis reasonably believed the conduct he opposed was discriminatory“].) Indeed, as Division Six of this court has observed, “[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts.” (Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th at p. 1251.)
O‘Reilly argues the trial court‘s exercise of discretion in declining to award all of Vines‘s requested attorney fees should nonetheless be affirmed because O‘Reilly had defeated Vines‘s age-based discrimination and harassment claims with its motion for summary adjudication; Vines lost at trial on his race-based discrimination and harassment claims; the jury awarded Vines only $70,000 on his retaliation claims, which was only 3 percent of the amount Vines had sought; and the jury declined to award punitive damages. O‘Reilly, however, ignores that the trial court expressly ruled Vines had “won substantial relief and obtained excellent results” and, aside from the reductions for specific fees not reasonably incurred, had reduced the attorney fees amount because it had found Vines‘s claims were not sufficiently related or factually intertwined. (See, e.g., Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 512 [“where, as here, the court expressly states a legally erroneous ground for its ruling, we cannot infer its exercise of discretion rested on a wholly different basis“]; McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 705 [“[w]hen the court states its reasons explicitly [for reducing the fees requested], we cannot infer its exercise of discretion rested on a wholly different basis“].)
O‘Reilly asserts the trial court‘s determination Vines‘s unsuccessful claims were not closely related to his successful claims was a factual finding supported by substantial evidence. It contends Vines‘s discrimination and
The trial court‘s stated reason for its ruling regarding the insufficient relatedness of the claims, however, was not on the ground the age-based claims had no relationship to the retaliation-based claims. And the determination whether any facts related to Vines‘s retaliation claim arose after he had complained about the discriminatory and harassing conduct, which was the basis for the court‘s ruling Vines‘s claims were not factually intertwined, entailed a legal conclusion: Whether evidence supports one claim but not another is not a historical fact. Because, as discussed, evidence of the facts regarding the conduct about which Vines complained was probative as to whether he reasonably believed it constituted unlawful discrimination and harassment, the court erred in determining any facts related to the retaliation claim arose after he had complained about that conduct.
O‘Reilly‘s reliance on Chavez, supra, 47 Cal.4th 970 to argue otherwise is misguided. In Chavez the Supreme Court held that
The Chavez Court explained its determination the plaintiff had achieved, at best, only modest success: The plaintiff had sought attorney fees for 1,851.43 total attorney hours during a period in which plaintiff‘s attorney had brought and litigated two state court actions and one federal court action, including an appeal to the Ninth Circuit; plaintiff had asserted in those actions claims of employment discrimination, harassment and retaliation in violation of FEHA, as well as civil rights violations under sections 1983 and 1988 of title 42 of the
After noting the plaintiff did not contend his success on the single FEHA retaliation claim had any broad public impact or resulted in significant benefit to others, the Chavez Court stated, “Because this single successful claim apparently was not closely related to or factually intertwined with plaintiff‘s many unsuccessful claims, the trial court reasonably could and presumably did conclude that plaintiff was not entitled to attorney fees for time spent litigating those unsuccessful claims.” (Chavez, supra, 47 Cal.4th at p. 990.) O‘Reilly relies on that statement to argue that the Court rejected the proposition FEHA retaliation claims are, by necessity, intertwined with the underlying discrimination claims. But the Chavez Court did not specifically address that proposition (nor does the opinion indicate the parties even raised it as an issue on appeal), as indicated, for example, by the Court‘s use of the term “apparently” when referring to the lack of relatedness of the plaintiff‘s multiple claims, which included many non-FEHA claims. (See, e.g., California Building Industry Assn. v. State Water Resources Bd. (2018) 4 Cal.5th 1032, 1043 [“[i]t is axiomatic that cases are not authority for propositions that are not considered“].) More to the point, our reversal of the trial court‘s order in this case is not based on a determination that retaliation claims in all circumstances must be found to be closely intertwined with the underlying discrimination claims for purposes of assessing reasonableness of attorney fees. Rather, the trial court‘s error here was basing its finding on an incorrect determination any facts related to Vines‘s retaliation claim arose after he had complained about the unlawful conduct.
O‘Reilly‘s contention it had never disputed that Vines believed O‘Reilly discriminated against him misapprehends the import of Vines‘s burden of proof at trial. Vines had to prove his beliefs were reasonable, which O‘Reilly did contest, for his complaints to qualify as protected activity required for a FEHA retaliation claim. As Vines points out, O‘Reilly‘s counsel in his closing argument reviewed the questions on the verdict form and told the jury, “Now, let me talk about this third сlaim for retaliation. . . . First question, ‘Did Mr. Vines complain to a supervisor, human resources or
Similarly, in its trial brief O‘Reilly argued, although Vines may prevail on a retaliation claim if he reasonably believed O‘Reilly‘s conduct was unlawful, “a false report of discrimination or harassment may lawfully be a basis for discipline and may not be considered as protected activity necessary to support a retaliation cause of action.” Perhaps most importantly, in that same trial brief O‘Reilly stated the parties had not stipulated to any of the ultimate facts or issues in the case; and it listed only three “ultimate facts” to which it would stipulate: (1) that O‘Reilly was an employer; (2) that Vines was an employee of O‘Reilly; and (3) that O‘Reilly discharged Vines. Thus, even if O‘Reilly had not expressly challenged the reasonableness of Vines‘s belief the conduct of which he complained was discriminatory or otherwise unlawful, because O‘Reilly did not stipulate to that fact, Vines had to present evidence proving the reasonableness of that beliеf to succeed on his retaliation cause of action, such as evidence Fonder spoke to White males differently than to Vines (whom, according to Vines‘s testimony, Fonder “talked down to . . . like an animal“) and mistreated other Black employees and witness testimony of an incident in which four O‘Reilly store managers, wearing white pillowcases over their heads, had knocked on a Black O‘Reilly manager‘s hotel room door.
In sum, the trial court erred in reducing by 75 percent the $518,161.77 subtotal (which, as discussed, represented Vines‘s requested lodestar amount after reductions for specific billing entries) based on its conclusion that Vines‘s unsuccessful discrimination and harassment claims were not sufficiently related to or faсtually intertwined with his successful retaliation-based claims.
3. Vines Forfeited His Challenge to the Trial Court‘s Reductions for Specific Billing Entries
Vines contends the trial court also abused its discretion in reducing fees for specific billing entries that O‘Reilly had contended were unreasonable, such as reducing by two-thirds the amount of fees for the depositions of three witnesses in Missouri, not awarding certain fees for attorney travel, reducing Scardigli‘s hourly rate (from $525 to $425), reducing the hourly rate for fees for certain “lower-level” work and not awarding fees for participation in an Employment Development Department hearing. By asserting in his opening
DISPOSITION
The postjudgment order awarding attorney fees is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Vines is to recover his costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.