“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party … reasonable attorney’s fees and costs, including expert witness fees.” (Gov. Code, § 12965, subd. (b).) “The FEHA is, inter alia, a statutory expression of the fundamental policy against employment discrimination. [Citation] ‘[S]ection 12965 [attorney] fees are intended to provide “fair compensation to the parties involved in the litigation at hand and encourage[] litigation of claims that in the public interest merit litigation.”’ [Citation.]” (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 609-610.) “In determining the fee award, the trial court must first determine ‘a “lodestar” or “touchstone” figure, which is the product of the number of hours worked by the attorneys and a reasonable fee per hour.’ [Citations.] 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.” (Greene v. Dillingham Construction N.A. (2002) 101 Cal.App.4th 418, 422-423.)
The number of hours spent by employee’s attorney on the case, while varies based on many factors including but not limited to the complexity of claims, number of claims, location of employer(s), number of employers, and litigation styles deployed by counsel for employee and employer, nonetheless, could be staggering compare to similar cases in other types of civil litigations than employment litigation.
A recent attorneys’ fees/cost fee motion filed with the Superior Court of California, County of Santa Barbara, in Carlos Ortiz vs Reson A/S et al. (Case No.: 1385278), A employee filed a lawsuit against his former employer for unlawful discrimination. After a trial, jury found in favor of employee his claims for national origin and age discrimination and awarded him $1,130,000.00 in compensatory damages against his former employer. Subsequently, employee’s attorney filed a motion for an award of attorneys’ fees, costs and prejudgment interest claiming that he spent 3,076 hours at a rate of $395 per hour totaling $1,215,217 attorneys’ fees. The employee’s counsel claimed that he spent: 145.6 hours in Pre-litigation, 918.6 hours in Pre-trial discovery; 563.5 hours for Trial preparation, 1,116.6 hours in other pre-trial litigation, 255.7 hours in trial, 35.2 hours in Post-trial, and 41.3 hours in fee-application.
“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on [certain] factors …. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) “Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under [Serrano v. Priest (1977) 20 Cal.3d 25, 49]. … [A] trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ketchum v.Moses (2001) 24 Cal.4th 1122, 1139.)
The factors in Serrano v. Priest, supra, 20 Cal.3d at p. 49 are: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the court’s view the two law firms involved had approximately an equal share in the success of the litigation.” (Fn. omitted.)
The employee sought an enhancement multiplier of 1.5, which the trial court found within the range of multipliers affirmed by the courts of appeal. (E.g., Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th at p. 1252. Accordingly, the court found and awards attorney fees in favor of employee and against employer in the amount of $1,779,514.50 in addition to $1,130,000.00 in compensatory damages that jury had awarded to the employee. It should be noted that in many employment cases it is not unusual that attorneys’ fees exceeds compensatory damages. Furthermore, employers who lose the trial in discrimination case, in addition to pay for prevailing employee’s attorneys’ fees and cost, they must bear attorneys’ fees and cost for their own counsel.