Judge: Douglas W. Stern, Case: BC575230, Date: 2022-09-28 Tentative Ruling

Case Number: BC575230    Hearing Date: September 28, 2022    Dept: 52

Tentative Ruling:

Plaintiff Noushin Khoiny, M.D.’s Motion for Attorney Fees on Appeal

Plaintiff Noushin Khoiny, M.D. moves for $245,106 in attorney fees after successfully appealing a judgment against her on her claims under the Fair Employment and Housing Act (FEHA).  (See Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 396.)  “In civil actions brought under [FEHA], the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees.”  (Gov. Code, § 12965(c)(6).)      

Plaintiff is not entitled to attorney fees at this stage.  She may later become the prevailing party, but for now she seeks interim fees based solely on her successful appeal.    “Because FEHA does not define the term prevailing party, prevailing party status is determined in this context based on an evaluation of whether a party prevailed on a practical level.”  (Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 562, internal quotes omitted.)   

  Plaintiff has not prevailed on any practical level.  She successfully appealed a judgment for defendants.  The Court of Appeal remanded this action for a new trial.  With one limited exception discussed below, she has not achieved any relief.  The Court of Appeal’s decision means plaintiff did not lose this case already—not that she won anything.  She may or may not prevail in the new trial.

  The only relief plaintiff has won are her costs on appeal.  “Unless the” Court of Appeal “orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”  (Cal. Rules of Court, rule 8.278(d)(2).)  The Court of Appeal ordered, “Costs are awarded to appellant.”  (Khoiny, supra, 76 Cal.App.5th at p. 420.)  It did not order that the award includes her attorney fees.

In this motion, plaintiff seeks interim attorney fees.  “Apart from the sphere of private attorney general actions under Code of Civil Procedure section 1021.5, the award of interim attorney fees in California remains a wholly untested and novel concept that is ordinarily barred by explicit statutory language.”  (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 833 (Bell).)  “If the merits can still be reversed, interim victories … do not make the plaintiff the prevailing party; however, fees for that work may later be claimed if the merits victory becomes final or favorably mooted.”  (Pearl Attorney Fees § 11.18.A.)

Plaintiff cites no authority permitting recovery of interim attorney fees in FEHA cases.  There is persuasive federal authority indicating that plaintiff Khoiny cannot recover interim fees for her successful appeal.  “In interpreting California's FEHA, California courts often look for guidance to decisions construing federal antidiscrimination laws.”  (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984.)  “Also of use in interpreting the scope of the ‘prevailing party’ language in section 12965 are cases brought under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. § 1988; hereafter ‘section 1988’).  The provision for counsel fees in section 1988 was patterned after and intended to be defined and applied in the same manner as the Title VII provision.”  (Hon v. Marshall (1997) 53 Cal.App.4th 470, 476.)

In interpreting 42 U.S.C. § 1988, the Ninth Circuit held, “A court may award attorney’s fees under § 1988 only to a ‘prevailing party,’ and a plaintiff prevails for purposes of § 1988 only ‘when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ”  (Yamada v. Snipes (9th Cir. 2015) 786 F.3d 1182, 1208.)  “A plaintiff does not become a prevailing party until it obtains relief that is ‘no longer subject to being “reversed, dissolved, or otherwise undone by the final decision in the same case.” ’ ”  (Ibid.)

Plaintiff has obtained no relief other than appellate costs, which did not include attorney fees.  She may yet lose this case at trial.  She is not currently the prevailing party. 

Plaintiff invokes the principle that courts liberally construe FEHA in favor of employees to give effect to the law’s purpose.  (See, e.g., Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 949.)  When analyzing another statute furthering the public policy of workers’ rights, the Court of Appeal held: “We decline the plaintiffs’ invitation to base our decision on the larger legislative purpose of Labor Code section 1194.  The pertinent issue is whether the statute authorizes an award of interim attorney fees.”  (Bell, supra, (2001) 87 Cal.App.4th at p. 833.) 

Here, Government Code section 12965(c)(6) contemplates an award of attorney fees “[i]n civil actions” for “the prevailing party.”  Plaintiff has not prevailed in this action.  FEHA includes no provision authorizing an award of interim attorney fees.

The motion is denied.