Attorneys’ Fees May Be Awarded in FEHA Cases Even Where Attorney Misconduct Is Involved
Topics: Court Decisions, Discrimination, Harassment & Retaliation
Late last month, the California Court of Appeal affirmed the trial court’s decision in an employment discrimination case that awarded attorneys’ fees and costs to the prevailing plaintiff, even where the plaintiff’s attorney engaged in misconduct.
In Simers v. Los Angeles Times Communications LLC, Plaintiff T.J. Simers was a well-known columnist for the Times, who after 23 years of employment, suffered a medical issue at the age of 62. Upon resuming his duties, the Times reduced his weekly column count and suspended Simers to look into a possible ethics violation. Simers was later reinstated to his position but was demoted the same year he suffered his medical issue. Simers resigned from the Times and sued for age and disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”) and for constructive termination.
Both sides appealed from a post-judgment order awarding attorneys’ fees and costs to Simers following nine years of litigation and three jury trials. Simers prevailed in the first trial, and the jury awarded him non-economic and economic damages. Simers also prevailed in the second trial, which was granted to determine non-economic damages on the demotion claims. The second trial, however, resulted in a new trial on two grounds: (1) Plaintiff’s counsel’s misconduct during her rebuttal closing argument, where she improperly suggested that the jury award damages based on the Times’ wealth and ability to pay, and (2) the Times’ argument that the damages award was excessive based on the evidence. The third trial also sought to determine the amount of non-economic damages that should be awarded to Simers for his demotion, which again resulted in a verdict in Simers’ favor.
The primary issue decided on appeal dealt with the Times’ contention that Simers should not have recovered any fees for counsel’s work on the second trial because the third trial was a result of counsel’s misconduct during closing arguments at the second trial. The Times also challenged the fees awarded for certain work on Simers’ unsuccessful appeal after the first trial. Simers contended that he should recover his attorneys’ fees for his appeal following the third trial, despite the trial court’s order denying fees and costs after he rejected the Times’ offer to compromise (made shortly before the third trial), and he failed to obtain a more favorable judgment.
In assessing the Times’ appeal, the court reasoned that the Times’ argument “los[es] sight of the basic principle that a FEHA plaintiff is entitled to compensation for all time reasonably spent on the litigation in which he prevailed. The defendant would have the trial court rule that none of the time spent on the second trial was reasonably spent because of misconduct that occurred at the very end of the trial.” The court noted that there was no precedent for restricting the trial court’s discretion in cases where attorney misconduct was involved or for eliminating attorney fees “for a discrete trial on identical issues by claiming it is ‘unrelated’ to eventual success in a new trial.” Thus, the court affirmed the trial court’s decision to award fees and costs to Simers.
In rejecting Simers’ argument that he was wrongfully denied attorneys’ fees and costs incurred after declining the offer to compromise, the court relied on the unambiguous statutory language of California Code of Civil Procedure section 998 governing offers to compromise. The court explained that because the Times’ offer to compromise was for $1.25 million plus preoffer fees and costs, when determining whether Simers had obtained a more favorable judgment, all postoffer fees and costs are excluded.
The important takeaways from Simers v. Los Angeles Times Communications LLC are that (1) for prevailing plaintiffs in FEHA actions, attorneys’ fees and costs may be awarded, even where additional fees and costs resulted from the plaintiff’s attorney’s misconduct, and (2) where a plaintiff does not accept a defendant’s offer to compromise for a monetary amount plus pre-offer fees and costs, and fails to obtain a more favorable judgment, postoffer costs (including attorneys’ fees) are not recoverable.
Contact CDF with questions about the implications of attorneys’ fee awards and costs and offers to compromise in FEHA actions.
