IRION, J.
Following the termination of her employment, Lauren McFadden sued her former employer, William Jordan Associates, Inc. (WJA), alleging nine employment-related causes of action. At trial, the jury returned a verdict awarding a total of $9,648 in damages. McFadden filed a postjudgment motion pursuant to Government Code section 12965, subdivision (b) (§ 12965(b)),
For purposes of trial, McFadden and WJA stipulated to the following joint statement of the case.
"This case is brought by [McFadden] against [WJA]. [McFadden] was employed by [WJA] beginning in August 2011 and her employment was terminated in January 2012.[
In August 2012, McFadden filed a complaint in the superior court alleging the following nine causes of action against WJA: unlawful discrimination based on gender and marital status (§ 12940, subd. (a)); pregnancy discrimination (§ 12945); retaliation (§ 12940, subd. (h)); failure to prevent discrimination (§ 12940, subd. (k)); wrongful termination in violation of public policy; nonpayment of wages; failure to provide meal and rest periods (Lab. Code, § 226.7); waiting time penalties (Lab. Code, § 203); and intentional infliction of emotional distress.
In March 2014, the court presided over a jury trial. In closing argument, McFadden's counsel asked the jury to award damages of $322,551: $62,994 in lost earnings from the date of termination through trial; $49,920 in future lost earnings; $3,317 in overtime pay; $4,320 in waiting time penalties; $2,000 in medical expenses; and $200,000 in emotional distress.
After approximately a half day of deliberations, the jury returned the seven-page, 22-question special verdict form. In part, the jury's answers included the following findings: McFadden's pregnancy or marital status was a substantial motivating reason for WJA's decision to terminate McFadden's employment; WJA did not discriminate with malice, oppression or fraud; WJA did not fail to prevent discrimination; WJA's conduct was not outrageous; McFadden did not complain of discrimination to Jordan; WJA did not fail to pay McFadden for any overtime hours she allegedly had worked; McFadden was entitled to an award of $8,640 for all past economic loss (including lost earnings and medical expenses);
Accordingly, the court entered judgment in favor of McFadden and against WJA in the amount of $9,648 based on McFadden's past economic loss ($8,640) and seven days of penalties for WJA's willful failure to pay wages owed at the time of termination of McFadden's employment ($144/day × 7 days = $1,008).
McFadden filed a memorandum of costs in which she claimed $276,684-$262,408 in attorney fees and $14,276 in other costs — and a corresponding motion for attorney fees and costs under section 12965(b). In the motion, McFadden contended that she was entitled to such an award, because she "prevailed on the central issue in the case by obtaining a unanimous jury verdict finding that [WJA] discriminated against [McFadden] on the basis of her pregnancy in violation of . . . [section] 12945, and her claim for penalties pursuant to Labor Code [section] 203 based on WJA's failure to pay all wages owed to [McFadden] at the time of her termination." In support of her position on entitlement, McFadden relied on the following evidence: (1) McFadden did not file a limited civil case, because at the time she filed her complaint, the information available to McFadden's counsel was that McFadden would be able to present evidence that her FEHA damages exceeded $25,000, the jurisdictional maximum for a limited civil case (Code Civ. Proc., § 86, subd. (a)(1)); and (2) McFadden obtained a recovery in excess of WJA's Code of Civil Procedure section 998 offer of compromise ($15,000), in that the jury's award of damages ($9,648) together with pre-offer fees and costs ($34,565) exceeded the amount of what McFadden described as WJA's "fee inclusive settlement offer of $15,000."
Following oral argument, the trial court — i.e., the same judge who presided at trial — denied McFadden's motion for attorney fees and costs. The July 14, 2014 written order (Order) provides in relevant part as follows:
McFadden timely appealed from the Order.
McFadden argues that the trial court erred in denying her motion for section 12965(b) fees and costs by failing to apply the appropriate legal standard established in Chavez, supra, 47 Cal.4th 970. To the contrary, because the court properly exercised its discretion under Chavez, we find no error on appeal.
We view the Order in a light most favorable to WJA (as the prevailing party in the posttrial proceedings), resolving all conflicts in the evidence in favor of the Order and recognizing all reasonable inferences that may be drawn from the Order. (Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 776 [appeal from order granting attorney fees under the Gov. Code].)
We review the Order for an abuse of discretion. (Chavez, supra, 47 Cal.4th at p. 989.) "'The proper exercise of discretion requires the [trial] court to consider all material facts and evidence and to apply legal principles essential to an informed, intelligent, and just decision.'" (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 931.) "'The scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action. . . ." . . . In other words, judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion." (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393, citations omitted [FEHA employment discrimination case].)
We thus consider the trial court's exercise of discretion here, in the context of section 12965(b) and Code of Civil Procedure section 1033, subdivision (a) (Code Civ. Proc., § 1033(a)). As we will explain, section 12965(b) authorizes the discretion not only to award the fees and costs at issue here, but also to deny such fees and costs where special circumstances would render the award unjust. As we also will explain, Code of Civil Procedure section 1033(a) authorizes the discretion to deny fees and costs where a plaintiff obtains a money judgment in an unlimited civil case that could have been brought as a limited civil case.
The Legislature enacted the FEHA "to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination" on account of various characteristics. (§ 12920.) Those characteristics include in part marital status (§ 12940, subd. (a)) and pregnancy (§ 12945). Section 12965(b), which authorizes an employee to bring a civil action for damages based on violations of the FEHA, also provides that "the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees." Awards of attorney fees and costs in FEHA actions both allow for plaintiffs of limited means to bring meritorious claims and encourage litigation of claims that benefit the public interest. (Chavez, supra, 47 Cal.4th at p. 984.) Accordingly, a prevailing FEHA plaintiff "should ordinarily recover attorney fees unless special circumstances would render the award unjust." (Id. at p. 985, italics added.)
Code of Civil Procedure section 1033(a) provides in full: "Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case."
In Chavez, the Supreme Court held that section 12965(b) and Code of Civil Procedure section 1033(a) can be harmonized; i.e., in a FEHA case, a court of unlimited jurisdiction retains discretion to reduce or deny a prevailing plaintiff's request for fees and costs when the plaintiff recovers less than the maximum recoverable in a court of limited jurisdiction. (Chavez, supra, 47 Cal.4th at p. 986.) "In exercising its discretion under [Code of Civil Procedure] section 1033(a) to grant or deny litigation costs, including attorney fees, to a plaintiff who has recovered FEHA damages in an amount that could have been recovered in a limited civil case, the trial court must give due consideration to the policies and objectives of the FEHA and determine whether denying attorney fees, in whole or in part, is consistent with those policies and objectives. If so, the plaintiff's failure to take advantage of the time- and cost-saving features of the limited civil case procedures may be considered a special circumstance that would render a fee award unjust." (Chavez, at p. 986.) In reaching this conclusion, the Supreme Court summarized and cited approvingly the Court of Appeal's conclusion in Steele v. Jensen Instrument Co., supra, 59 Cal.App.4th 326 (Steele): "[W]hen the amount of damages that a FEHA plaintiff recovers in superior court could have been awarded by a court of lesser jurisdiction (at that time, the municipal court), the trial court has discretion to deny costs, including attorney fees, to the plaintiff." (Chavez, supra, 47 Cal.4th at pp. 987-988, citing Steele, at p. 331, italics added.)
In addition, as applicable here, a "'fee request that appears unreasonably inflated'" is another "'special circumstance'" for FEHA purposes that also "'permit[s] the trial court to reduce the award or deny one altogether.'" (Chavez, supra, 47 Cal.4th at p. 990, quoting from Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)
In Steele, supra, 59 Cal.App.4th 326, the plaintiff brought a FEHA action in superior court (before the unification of the municipal and superior courts) against her employer and two individuals based on alleged pregnancy discrimination. (Id. at p. 328.) A jury trial resulted in an award of $21,078 in damages. (Ibid.) Because the damage award was less than $25,000, and thus could have been recovered in a court of limited jurisdiction (then, the municipal court), the trial court relied on Code of Civil Procedure section 1033(a) and denied the plaintiff her attorney fees and costs. (Steele, at pp. 329-330.) The Court of Appeal affirmed, holding that because the plaintiff could have recovered those damages in a court of lesser jurisdiction, the trial court did not abuse its discretion denying plaintiff's motion. (Id. at p. 331.)
In Chavez, supra, 47 Cal.4th 970, the plaintiff brought a FEHA action in superior court against his employer and two individuals alleging claims for employment discrimination and harassment on the basis of a perceived mental disability and unlawful retaliation for having filed FEHA administrative complaints and prior state and federal court actions asserting the FEHA claims. (Id. at p. 980.) After recovering $11,500 on one claim, the plaintiff brought a section 12965(b) motion for $884,079-$870,935 in fees and $13,144 in costs.
For purposes of comparison, in the present appeal McFadden recovered $9,648 in her FEHA superior court action and brought a section 12965(b) motion for costs in the amount of $276,684-$262,408 in attorney fees and $14,276 in other costs.
We are not persuaded by McFadden's principal argument that the trial court abused its discretion by "repeatedly declin[ing] to address the Chavez standards" despite "McFadden's counsel's repeated requests that the court consider the Chavez factors." According to McFadden, because the court did not make findings on the issues McFadden believes were important or answer specific questions posed by her attorney at oral argument, the court necessarily failed to apply the appropriate legal standard.
To the contrary, in the Order the court here expressly relied on the two "special circumstances" described ante that would render a fee award unjust according to Chavez, supra, 47 Cal.4th at pages 990-991: (1) the requested fees were unreasonably inflated; and (2) the action fairly and effectively could have been litigated as a limited civil case.
In a related argument, McFadden relies on comments from the bench during the hearing — mostly in response to her attorney's questions to the court — that she contends establish the court's failure to analyze or properly apply the Chavez standards. (See fn. 12, ante.) Very simply, McFadden attempts to use the court's oral comments to impeach the court's written order filed almost three weeks later. However, "oral remarks or comments made by a trial court may not be used to attack a subsequently entered order or judgment." (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1009; accord, Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 667, fn. 9 [trial court's remarks "not embodied in the written findings or judgment . . . may not be used to impeach the findings" actually made].) We are reviewing the Order, not the court's comments made during oral argument.
Like the trial court, we too find Steele persuasive
"'"The `experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong[']" —meaning that it abused its discretion.'""' We defer to the trial court's discretion "because of its `superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.'"'" (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249 [defendant's appeal from grant of FEHA plaintiff's § 12965(b) motion].)
Contrary to McFadden's argument on appeal, there is no indication that the trial court here denied her motion based on "the comparison of the proportionality of the fee request to the amount recovered" — i.e., $276,684 requested on a $9,648 recovery. Rather, the court appears to have followed Chavez's direction for cases where a plaintiff is only partially successful on the claims she prosecuted — which to a certain extent expressly authorizes the court to consider the relationship between the fees requested and the amount recovered. "If a plaintiff has prevailed on some claims but not others, fees are not awarded for time spent litigating claims unrelated to the successful claims, and the trial court `should award only that amount of fees that is reasonable in relation to the results obtained.' [(Hensley v. Eckerhart (1983) 461 U.S. 424, 440.)] Although attorney fees need not be strictly proportionate to the damages recovered (Riverside v. Rivera (1986) 477 U.S. 561, 574), `[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief [citation], the only reasonable fee is usually no fee at all[.]'"
Once again, in her complaint McFadden alleged nine causes of action against WJA; she prevailed on two, and in one of them she had received WJA's concession of liability shortly before trial. In the Order, the trial court found that even if it assumed that McFadden prevailed on each of her causes of action, "the fees and costs requested appear to be excessive," noting that it had discretion to deny McFadden's motion "on this basis alone."
Indeed, the record here is stronger than that in Chavez for a denial of all fees and costs. In Chavez, after reaffirming that an "'unreasonably inflated'" request is a sufficient "' special circumstance'" to deny the plaintiff's section 12965(b) motion, the Supreme Court first credited the trial court with the implied finding that the requested award of fees and costs in that case was "grossly inflated" and then concluded by ruling that the court did not err in denying the motion in its entirety. (Chavez, supra, 47 Cal.4th at pp. 990-991.) Here, since the trial court provided an express finding that the fees and costs requested by McFadden "appear to be excessive"; Chavez fully supports the conclusion that the court applied the proper standard and did not err in denying McFadden's motion in its entirety.
In support of her section 12965(b) motion, McFadden submitted a declaration from one of her trial attorneys who explained the bases for the attorney's decision to file the action as an unlimited civil case. In summary, counsel testified that, prior to filing the action as an unlimited civil case: (1) she had investigated the facts, discussed the case with other attorneys in her firm, believed that WJA's treatment of McFadden violated the FEHA, familiarized herself with reports of jury verdicts in similar cases, and concluded that McFadden had a reasonable expectation of recovering damages in excess of $25,000; and (2) the complexity of McFadden's claims could not be litigated effectively as a limited civil case because of the limitation on discovery in such cases. Based on this evidence, McFadden argues on appeal that "[n]othing in the record of this case could have `firmly persuaded' the Superior Court that McFadden's attorneys had no reasonable basis to anticipate a FEHA damages award in excess of $25,000." McFadden emphasizes the "extensive experience in employment litigation" of her trial attorney.
McFadden essentially argues that the trial court was required to credit the evidence her attorney presented and required to conclude that the action could only be prosecuted fairly and efficiently as an unlimited civil case. We disagree.
To the extent McFadden is asking that we credit counsel's testimony or reweigh the evidence counsel submitted in support of the section 12965(b) motion, an appellate court may not do so. "Such matters do not present any question of law for appellate review since they turn upon the trial court's appraisal of the evidence on the question and the reasonable inferences to be drawn therefrom." (Beck v. Weather-Vane Corp. (1960) 185 Cal.App.2d 688, 694.)
We once again find guidance from our high court in Chavez: "The trial court was familiar with all of the trial proceedings and with the evidence presented at trial. It was therefore in a much better position than this court, or the Court of Appeal, to determine whether this action could fairly and effectively have been litigated as a limited civil case and also whether plaintiff's attorney should have realized, well before the action proceeded to trial, that plaintiff's injury was too slight to support a damage recovery in excess of $25,000. We have no reason to question the trial court's implied determinations on these points." (Chavez, supra, 47 Cal.4th at p. 991.) Likewise, here we have no reason to question the trial court's implied determinations on these points — especially since the court here (unlike in Chavez) provided an express finding that the judgment "could have been rendered in a limited civil case and could have been rendered in a small claims court." We do not read the court's comment as a statement of fact based on the results of the trial, but rather — given the context of the statement and the court's citations to Chavez, Steele and Code of Civil Procedure section 1033(a) — as the court's finding regarding whether the action could fairly and effectively have been litigated as a limited civil case.
We disagree with McFadden's suggestion that the trial court "penalized" counsel "through the application of hindsight." We recognize that, in determining whether an action could fairly and effectively have been prosecuted as a limited civil case, the trial court may not exercise "'hindsight bias,' which is the recognized tendency for individuals to overestimate or exaggerate the predictability of events after they have occurred." (Chavez, supra, 47 Cal.4th at pp. 986-987.) However, as we explained in the immediately preceding paragraph, the trial court can only make this determination based on its "familiar[ity] with all of the trial proceedings and with the evidence presented at trial." (Id. at p. 991.) Merely because the court rejected McFadden's counsel's testimony does not mean (or even imply) that the court inappropriately overestimated or exaggerated the predictability of the events after they had occurred.
For these reasons, based on its finding that the action could have been prosecuted as a limited civil case, the trial court did not err in denying McFadden's motion in its entirety.
The present appeal parallels Chavez closely. In Chavez, like here, the trial court determined that the plaintiff's excessive fee request was sufficient to deny the section 12965(b) motion. (Chavez, supra, 47 Cal.4th at p. 991.) In Chavez, like here, the trial court determined that the action should have been brought as a limited civil case.
Finally, in Chavez, in addition to these two determinations, the Supreme Court relied on the trial court's statement that "it had been `guided by' Steele" in reaching its decision to deny the section 12965(b) motion. (Chavez, supra, 47 Cal.4th at p. 991.) Here, in addition to the same two determinations, the trial court expressly cited Chavez, Steele and Code of Civil Procedure section 1033(a). Accordingly, as in Chavez, based on the trial court's explanation of the reason for its decision in the Order, we are confident the trial court knew and applied the appropriate standard under section 12965(b).
Based on the foregoing, the trial court did not abuse its discretion in denying McFadden's section 12965(b) motion.
The Order is affirmed. In the interests of justice, the parties shall bear their own costs on this appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NARES, Acting P. J. and HALLER, J., concurs.
Section 12965(b) provides in relevant part: "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees." Section 12965(b) is part of the California Fair Employment and Housing Act (FEHA), section 12900 et seq.
