Judge Teresa A. Beaudet, Case Number: BC413753, Date: 2023-05-25 Tentative Ruling

Plaintiff Scott E. Lowery (“Plaintiff”) filed the instant action on May 12, 2009 against Defendants Los Angeles Community Colleges and Southern California Risk Management Associates. On July 22, 2009, Plaintiff filed a First Amended Complaint (“FAC”) asserting causes of action for (1) disability discrimination, (2) failure to engage in a good faith, timely interactive process, (3) failure to accommodate, (4) failure to prevent disability discrimination, and (5) retaliation in violation of FEHA. On March 4, 2010, Plaintiff filed an amendment to the complaint substituting the name of Los Angeles Community College District for the incorrect name Los Angeles Community Colleges.

Following a lengthy procedural history in this matter, on May 10, 2017, the parties participated in a fourth mediation. (deRubertis Decl., ¶ 82.) The mediation produced a settlement that was fully executed on September 25, 2017 (the “Settlement Agreement”). (deRubertis Decl., ¶ 82.) The Settlement Agreement provides, inter alia, that the District shall pay Plaintiff and his attorneys the total sum of $600,000.00. (deRubertis Decl., ¶ 82, Ex. Z, § 2.) Section 8 of the Settlement Agreement provides that, “[n]otwithstanding the foregoing, the released claims shall also not include Lowery’s right, or the right of his attorneys, to seek and recover attorneys’ fees and costs. The Parties acknowledge that Lowery is the prevailing party in this litigation for purposes of recovering attorneys’ fees and costs, and the Parties acknowledge and understand that, in the event the Parties are not able to resolve Lowery’s claim for attorneys’ fees and costs, this issue will be submitted to the Court for resolution.” (deRubertis Decl., ¶ 82, Ex. Z, § 8.)

Plaintiff now moves for an order awarding statutory attorneys’ fees under Government Code section 12965, subdivision (b) and as provided in the settlement. Los Angeles Community College District (the “District”) opposes.

On December 5, 2022, the Court issued a minute order concerning the instant motion which provides, inter alia, that “[t]he parties did not resolve the timing issue regarding motion for attorney fees. Plaintiff will file the opening brief on this issue on or before 12/30/22. Defendant will respond on or before 01/18/23. Reply will be due on or before 01/27/23. Pursuant to oral stipulation, the Hearing on Motion for Attorney Fees scheduled for 12/05/2022 is continued to 02/09/23…[sic] The Court finds that the motion for attorney fees is not untimely, the Court will set a new hearing date regarding that motion at the 02/09/23 hearing.”

On February 9, 2023, the Court issued an Order finding, inter alia, that “[b]ased on a consideration of the arguments presented by the parties, the Court does not find that the District has demonstrated that Plaintiff’s motion for attorney’s fees is untimely.” (February 9, 2023 Order at p. 9:14-15.) The Court continued the hearing on the instant motion to April 6, 2023.

On April 6, 2023, the Court continued the hearing on the instant motion again, to May 25, 2023. The Court’s April 6, 2023 Order provides, inter alia, that “[t]he District may file and serve a surreply on or before 4/27, 2023, with a courtesy copy delivered to Dept. 50.¿Any surreply shall solely address Plaintiff’s new evidence and argument in the reply concerning whether Plaintiff’s unsuccessful causes of action are ‘related to’ Plaintiff’s successful cause of action, and whether Plaintiff achieved only ‘limited success.’ Plaintiff may file and serve a response thereto on or before May 11, 2023, with a courtesy copy delivered to Dept. 50. The parties may not include any argument or evidence on any other issue.¿The parties also agreed that Plaintiff may provide in his brief a citation to additional cases on the issue of a multiplier but without argument.

On April 27, 2023, the District filed a supplemental brief in opposition to Plaintiff’s motion for statutory attorney’s fees. On May 11, 2023, Plaintiff filed a reply thereto.

“A trial court has discretion to award attorney’s fees and costs to the party prevailing in a FEHA action.” (Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 331.) Government Code section 12965, subdivision (c)(6) provides in pertinent part that “[i]n 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.” “In FEHA actions, the discretion to deny a fee award to a prevailing plaintiff is narrow. A prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” (Steele v. Jensen Instrument Co., supra, 59 Cal.App.4th at p. 331 [internal quotations and citations omitted].)

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. … The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted]; see also Flannery v. Prentice (2001) 26 Cal.4th 572, 584, “[p]ursuant to long-established precedent and practice, section 12965 fees are calculated by determining the number of hours reasonably worked by the attorneys who prosecuted the matter and multiplying that number by the reasonable hourly rate those attorneys should receive for such work. Depending on the circumstances, consideration may also be given to the attorneys’ experience, the difficulty of the issues presented, the risk incurred by the attorneys in litigating the case, the quality of work performed by the attorneys, and the result the attorneys achieved.”)

As discussed in the Court’s April 6, 2023 Order, the Court finds that the hourly rates requested by Plaintiff’s counsel are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including “(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; (3) the contingent nature of the fee award” and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Plaintiff asserts that a multiplier of between 1.4 and 2.0 is warranted here. Plaintiff contends that a lodestar multiplier is appropriate here due to (1) the contingency fee nature of the case, (2) preclusion from other work resulting from the representation, (3) the novelty or difficulties in the case and skill displayed in presenting it, and (4) the results obtained.

As to the contingency fee nature of the case, in Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138, the California Supreme Court noted that “the purpose of a fee enhancement is primarily to compensate the attorney for the prevailing party at a rate reflecting the risk of nonpayment in contingency cases as a class.” Plaintiff asserts that in this case, that the risk of contingent representation should be met with an enhanced fee award. (Mot. at p. 18:13-16, Citing to deRubertis Decl., ¶¶ 105-113, 119; Pine Decl., ¶¶ 21-26; Lucien Decl., ¶¶ 24-26.)

The District asserts that the contingency factor does not support a lodestar multiplier, contending that “courts have expressed hesitancy to apply fee multipliers in the context of FEHA claims because the contingent risk is limited by the statutory entitlement to fees…” (Opp’n at p. 17:7-9.) The District cites to Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137, where the Court of Appeal found, inter alia, that “although attorney fees were properly awarded under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., the trial court’s enhancement of those fees was not supported by the factors it cited as justifying the use of a multiplier of 1.7.” The Weeks Court noted that “[l]ooking first to the contingent nature of the award, as has already been discussed, the situation here is unlike that in the Serrano cases, where it was uncertain that the attorneys would be entitled to an award of fees even if they prevailed. Government Code section 12965, subdivision (b) created a reasonable expectation that attorney fees would not be limited by the extent of Weeks’s recovery and that Weeks’s attorneys would receive full compensation for their efforts. The contingent nature of the litigation, therefore, was the risk that Weeks would not prevail. Such a risk is inherent in any contingency fee case and is managed by the decision of the attorney to take the case and the steps taken in pursuing it.” (Id. at p. 1175.)

In its May 11, 2023 reply, Plaintiff cites to Greene v. Dillingham Constr. N.A. (2002) 101 Cal.App.4th 418, 428-429, where the Court of Appeal “interpret[ed] the trial court as having determined that, under the circumstances, Weeks and Flannery did not allow consideration of a fee enhancement on the basis that this was a contingent fee case. Because in Ketchum (issued after the trial court’s decision) the Supreme Court has reaffirmed that contingent risk is a valid consideration in determining whether to apply a fee enhancement in cases where attorney fees are authorized by statute, we must remand the matter to the trial court for it to exercise its discretion on whether a fee enhancement is merited in this case for contingent risk. On remand, Greene bears the burden of proving that a fee enhancement is warranted (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138), and the trial court is properly guided by the considerations set forth in Ketchum, Weeks and Flannery.”[1]

The District assert that Plaintiff has not identified any factors unique to the present case such that the contingent risk would warrant a multiplier. The District also asserts that “[w]ith regard to appellate work specifically, Plaintiff’s appellate counsel took the case after Plaintiff had already obtained a trial verdict on three causes of action providing for the recovery of fees. Plaintiff’s appellate counsel thus took the case at a time when the contingent risk would have appeared exceptionally low, inasmuch as some amount of fees were guaranteed unless the Court of Appeals reversed the trial court’s decision in its entirety.” (Opp’n at p. 17:19-24.) In addition, the District notes that a “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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 [emphasis in original].)

As to the preclusion factor, Plaintiff asserts that “the preclusion factor is evident given the amount of hours spent by these small law firms.” (Mot. at p. 18:25-26.) Mr. deRubertis states that he was “necessarily precluded from other employment by agreeing to try this case.” (deRubertis Decl., ¶ 110.) Mr. deRubertis also states that “[d]uring the weeks in preparation for this trial and during the trial itself, I did not screen any potential clients; indeed, each time trial approached if we actually commenced trial preparations, all new case intake essentially came to a grinding halt in my office.” (deRubertis Decl., ¶ 111.) In addition, Mr. deRubertis states that he “was required to turn down two other opportunities for trials that [he] could have otherwise done during the time period of this case.” (deRubertis Decl., ¶ 112.) Mr. Pine states that “the expenditure of significant time on any of our contingency cases-including this one-necessarily displaces hourly work we would have otherwise taken.” (Pine Decl., ¶ 25.)

The District asserts that Plaintiff’s counsel’s statements of being precluded from other work are conclusory and “have been found insufficient to support an enhancement for preclusion.” (Opp’n at p. 18:8.) However, the District cites to a non-binding federal case to support this assertion.

Plaintiff also notes that “the novelty and difficulty of the questions involved” may support a lodestar enhancement, but does not provide any analysis of this factor in the Memorandum of Points and Authorities. (Mot. at p. 19:2-11.)
Lastly, Plaintiff asserts that “[t]he results obtained factor also supports an upwards adjustment,” because “[i]n this many years battle, Mr. Lowery’s counsel on a purely contingent basis fought not only through trial, but also a full appeal and petition to the Supreme Court, only to then have to serially re-litigate after remand the result of the appeal. The end result is an agreement by the LACCD to pay Mr. Lowery more money than he was awarded in the trial and a stipulation that he is the ‘prevailing party’ for purposes of this case.” (Mot. at p. 19:13-19; deRubertis Decl., ¶¶ 82-83.)

The District counters that the “results achieved” factor does not support a lodestar multiplier. The District cites to Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 838, where the Court of Appeal noted that “[t]he ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit. In other words, as stated by a leading treatise, ‘the California cases appear to incorporate the ‘results obtained’ factor into the ‘quality’ factor: i.e., high-quality work may produce greater results in less time than would work of average quality, thus justifying a multiplier.” The District asserts that “Plaintiff received a modest settlement when taking into account that the settlement sum covered roughly 9.5 years of potential back pay claims as well as all other potential economic and non-economic damages. Plaintiff ultimately prevailed on only one of the five causes of action he initially brought, and the success on that claim was limited given the Court of Appeals decision holding that the District properly engaged in the interactive process except with regard to its receipt of Plaintiff’s November 29, 2007 medical documentation.” (Opp’n at p. 19:10-15.)

In addition, the parties note that on May 4, 2012, Plaintiff’s previous motion for attorney’s fees was granted in the amount of $673,564.40. (Smith Decl., ¶ 5, Ex. C, p. 17.) As set forth in the May 4, 2012 Order, the Court applied a multiplier of 1.4. (Ibid.) The District asserts that “the Court of Appeal’s decision reversing the discrimination and failure to accommodate claims was primarily based on the simple fact that, at the time of Plaintiff’s termination, there was no indication that Plaintiff was able to perform the essential functions of the job with or without accommodation…Thus, Plaintiff’s assumption of any multiplier, let alone an increased multiplier, fails to take into account the fact that the Court of Appeals largely undermined the factors considered by the trial court in awarding a multiplier.” (Opp’n at p. 16:25-17:3.) Plaintiff does not appear to address this point in the reply.

Here, Plaintiff’s counsel has attached billing statements to the instant motion detailing the nature of the work performed. (deRubertis Decl., ¶¶ 114, 115, Exs. AA, BB, and CC; Pine Decl., ¶¶ 16, 19, Exs. 1, 4; Lucien Decl., ¶ 27, Ex. A.) The deRubertis Law Firm billed a total of 1,138.7 hours for services rendered. (deRubertis Decl., ¶ 118.) Pine Tillet Pine, LLP billed a total of 222.64 hours for services rendered. (Pine Decl., ¶ 20; deRubertis Decl., ¶ 118.) The Lucien Law Group billed a total of 513 hours for services rendered. (deRubertis Decl., ¶ 118.)

The District asserts that Plaintiff’s lodestar calculations are unreasonable because the lodestar does not distinguish between Plaintiff’s successful cause of action and Plaintiff’s unsuccessful causes of action. The District asserts that “Plaintiff’s counsel would only be entitled to fees for work on one successful cause of action out of five, and even on that cause of action the fees would be subject to further reductions based on Plaintiff’s relatively limited success in achieving his chief objective (reinstatement).” (Opp’n at p. 15:9-12.)

The District asserts that “[i]n FEHA and civil rights actions where a plaintiff succeeds on some claims and not others, courts apply the two-step test outlined in Hensley v. Eckerhart (1983) 461 U.S. 424 (superseded in part on other grounds) (Hensley) to determine how much the lodestar amount should be reduced to reflect the limited success.” (Opp’n at p. 11:11-13.) In Hensley, the United States Supreme Court considered “whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.” (Hensley, supra, 461 U.S. at p. 426.) The Hensley Court held that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” (Hensley, supra, 461 U.S. at p. 440.)

As set forth above, Plaintiff’s FAC in this matter alleges causes of action for (1) disability discrimination, (2) failure to engage in a good faith, timely interactive process, (3) failure to accommodate, (4) failure to prevent disability discrimination, and (5) retaliation in violation of FEHA.

The District notes that the Court of Appeal issued an Opinion in this matter on October 24, 2013, as well as an Order Modifying Opinion on November 21, 2013. (Smith Decl., ¶ 2, Ex. A.) The Court of Appeal’s October 24, 2013 Opinion and the Order Modifying Opinion provide, inter alia, “[w]e find the trial court’s decision as to the employer’s failure to engage in a good faith interactive process supported in part, but the decision as to the employee’s claims for wrongful discharge and failure to accommodate unsupported,” and “[w]e will affirm the judgment in part, reverse the judgment in part, and remand the case to the trial court with directions to enter a new judgment reflecting these changes and awarding such damages and/or other remedies to which Lowery may be entitled as a result of the District’s failure to engage in a good faith interactive process after November 29, 2007.” (October 24, 2013 Opinion at p. 2; November 21, 2013 Order Modifying Opinion.)

The District asserts that “Plaintiff’s claim for failure to engage was…based on distinguishable facts and theories from Plaintiff’s failed causes of action for retaliation, failure to prevent discrimination, disability discrimination, and failure to accommodate. For example, the retaliation claim was based on the theory that Plaintiff’ was terminated for filing a workers’ compensation claim. (See Plt. First Amended Complaint, at ¶ 64.). Plaintiff’s claim for failure to engage in the interactive process did not require proof regarding retaliatory motive or that Plaintiff engaged in protected workers’ compensation activities.” (Opp’n at p. 12:6-12.) The District also asserts that “the disability-related claims are distinct causes of action based on distinct facts…” (Opp’n at p. 12:13.)

In the reply, Plaintiff asserts that the unsuccessful claims were not unrelated to the successful claims. Plaintiff submits another Declaration of David M. deRubertis in support of the reply, who asserts that:

“Mr. Lowery pursued three legal theories at trial: failure to engage in a timely, good faith interactive process; failure to accommodate; and disability discrimination – all of which related both to the removal from his position on October 8, 2007 and the failure to reinstate after November 29, 2007. The successful and unsuccessful claims thus asserted the identical legal theories based on a continuous course of conduct. The only difference between the successful and unsuccessful claims was that they analyzed the identical legal claims from a closely related but not exactly identical moment in time: November 29, 2007 vs. October 8, 2007 – just 52 days apart. Even if the claims relating to the October 8, 2007 removal were not made, the same evidence would have been introduced at trial by the Plaintiff – the events leading to the removal from the job on October 8, 2017 where [sic] part and parcel of the story and background that explained the failure to reinstate in November 2017. And, from a damage perspective, the only difference between the finding that LACCD was liable from October 8, 2017 to the finding that LACCD was liable for failing to reinstate after November 29, 2017 was that by reversing as to the October 8, 2017 removal, the appellate court reduced Mr. Lowery’s economic damages by 7 weeks of pay –an insignificant amount (approximately $10,096.15).” (David M. deRubertis Decl. in Support of Reply, ¶ 10.)[2]

In its April 27, 2023 supplemental brief, the District asserts that “[c]ontrary to the assertion in [Plaintiff’s] counsel’s declaration that all of [Plaintiff’s] claims were based on the same theories, [Plaintiff’s] failed claims, i.e., the remaining four causes of action alleged in the First Amended Complaint and the unsuccessful portion of the failure to engage claim, are distinct from the successful portion of the failure to engage claim, and require different elements of proof based on facts that occurred at different time periods.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 3:16-21.)

As to Plaintiff’s first cause of action for disability discrimination, the District cites to Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 234-235, where the Court of Appeal noted that “[t]he plaintiff can meet his or her burden of establishing a prima facie case of discrimination by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” The District asserts that no such proof is required to state a claim for failure to engage in the interactive process. The District notes that “[t]he ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) The District also asserts that “[a] claim for failure to prevent disability discrimination, one of [Plaintiff’s] claims that was dismissed before trial, is…dependent on proof of disability discrimination, and thus rises and falls on the same evidence necessary to prove a disability discrimination claim.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 4, fn. 1.)

As to Plaintiff’s third cause of action for failure to accommodate, the District cites to

Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425, where the Court of Appeal noted that “[h]ere the verdicts on the reasonable accommodation issue and the interactive process claim are not inconsistent. They involve separate causes of action and proof of different facts. Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. An employee may file a civil action based on the employer’s failure to engage in the interactive process. Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. An employer may claim there was no available reasonable accommodation. But if it did not engage in a good faith interactive process, it cannot be known whether an alternate job would have been found. The interactive process determines which accommodation is required.” (Internal quotations and citations omitted.)[3]

As to Plaintiff’s fifth cause of action for retaliation in violation of FEHA, the District notes that “in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The District asserts that no such proof is required for a failure to engage claim.

In his reply to the District’s supplemental opposition brief, Plaintiff asserts that “differences between the elements of the successful and unsuccessful claims does not determine whether they are sufficiently unrelated for purposes of a ‘limited success’ reduction.” (Plaintiff’s May 11, 2023 Reply at p. 8:7-10.) Plaintiff notes that in Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at page 430, the Court of Appeal noted that “ACSC contends the attorney fees awarded to Wysinger are excessive. It notes that Wysinger prevailed on some but not all causes of action. It argues the trial court should have reduced and apportioned the fees.” In Wysinger, “the trial court found that Wysinger obtained excellent results and apportionment of fees was not appropriate because the issues in the case were common to one another and … intertwined … . ACSC claim[ed] the causes of action were unrelated and distinct.” (Id. at p. 431.) The Court of Appeal disagreed, finding that “[a]ll involved underlying disability and age discrimination issues and are based on 52 paragraphs of facts in Wysinger’s complaint, which he alleged were common to all causes of action.” (Ibid.)

The District also asserts that Plaintiff’s “claims for disability discrimination, failure to prevent discrimination (which was dismissed just before trial), and failure to accommodate are distinct causes of action based on the District’s actions as of October 8, 2007…By contrast, the successful portion of the failure to engage claim was solely concerned with the District’s subsequent responsibility to reinitiate the interactive process after Lowery provided new medical documentation on November 29, 2007.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 5:2-5; 5:11-13.)

The District cites to the Court of Appeal’s October 24, 2013 Opinion in this matter which provides, inter alia, that as to the failure to accommodate cause of action, “Lowery testified that he had told those at the October 8, 2007 interactive meeting that he had for some time been lifting more than 30 pounds (despite his doctor’s restrictions), and that getting a lighter ladder would help. But the ability to lift up to 30 pounds was well short of the job’s essential lifting and carrying requirements.” (Smith Decl., ¶ 2, Ex. A, p. 24.) The Court of Appeal found that “[l]acking evidence that Lowery was able to perform all the essential tasks of his position as HVAC Technician as of October 8, 2007, with or without reasonable accommodation, the District cannot be held liable under section 12940, subdivision (m), for failure to accommodate Lowery’s disability.” (Id. at p. 26.)

As to the disability discrimination cause of action, the Court of Appeal’s October 24, 2013 Opinion provides, inter alia, that “[t]he record contains no substantial evidence that on October 8, 2007, Lowery was able to perform the essential duties of his position, with or without reasonable accommodation.” (Id. at p. 21.) The Court of Appeal Opinion also provides as to the disability discrimination cause of action that “[t]he evidence in the record does not support the determination that at the time he was placed on leave, Lowery was able to perform the essential functions of his job, with or without reasonable accommodation. Nor does it show that, even if he could then perform all the job’s essential functions, the District had any way of knowing that when it removed him from his position.” (Id. at p. 20.)

As to the failure to engage cause of action, the Court of Appeal’s October 24, 2013 Opinion provides, inter alia, as follows:

“[t]he trial court made no determination that as of October 8, 2007, or at any time before the District’s constructive receipt of Dr. Grahek’s November 29, 2007 letter, the District had breached its duty to engage in an interactive process, or had acted in bad faith in doing so, in any way that resulted in harm to Lowery…Nor would the evidence have supported such a determination. Lowery’s evidence did not show that Lowery was capable of performing the essential duties of his position as B-Shift HVAC Technician, or that he was qualified for any other position with the District, as of any time before November 29, 2007. He therefore failed to show that he was harmed by the District’s failure to participate in the good faith interactive process before that date. However, Dr. Grahek’s November 29, 2007 letter constituted substantial evidence that Lowery was then qualified for the position from which he had earlier been removed…The court held that when the District received Dr. Grahek’s letter (constructively in late November 2007, and actually in 2009), it did not do what it should have done: engage in a new interactive process, as required by section 12940, subdivision (n)…The evidence supports this determination.” (Smith Decl., ¶ 2, Ex. A, pp. 28-29, emphasis in original.)

The District asserts that “[i]f the October 7, 2009 portion of the cause of action was ‘the same’ or ‘identical’ to the November 29, 2007 portion of the cause of action, the Court of Appeal would simply have upheld the judgment on the cause of action as a whole. Instead, it made it a point to distinguish the different portions and specifically find that Lowery was unsuccessful as to the former and successful as to the latter.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 7:9-13.) As to Plaintiff’s cause of action for retaliation, the District asserts, as set forth above, that “the retaliation claim which was dismissed before trial was based on the theory that Lowery was terminated for filing a workers’ compensation claim…Lowery’s failure to engage in the interactive process claim did not require proof regarding retaliatory motive or that Lowery engaged in protected workers’ compensation activities.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 5:14-18, citing FAC, ¶ 64.)

In his reply to the District’s supplemental opposition brief, Plaintiff asserts that his unsuccessful claims were not unrelated to the successful claims. Plaintiff notes that in Harman v. City and County of San Francisco, supra, 136 Cal.App.4th at page 1311, the Court of Appeal found that “[w]hile the courts have sometimes applied the Hensley distinction without elaboration (see Corder v. Gates (9th Cir. 1991) 947 F.2d 374, 379), we find other authority that attempts to give the distinction greater precision…The Seventh Circuit in Mary Beth G. v. City of Chicago (7th Cir. 1983) 723 F.2d 1263, followed by a line of Ninth Circuit decisions, suggests that ‘a useful tool for making this determination is to focus on whether the claims seek relief for essentially the same course of conduct. Under this analysis, an unsuccessful claim will be unrelated to a successful claim when the relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised.’” (Emphasis in original.) Plaintiff asserts that here, his unsuccessful claims did not seek “to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted [was] premised.”

Rather, Plaintiff contends, his “claims sought to remedy the same thing: Mr. Lowery’s loss of his employment at [the District] from his removal on October 7, 2007 to his failure to be re-instated after November 29, 2007 to his eventual termination. This is one single course of conduct leading to a single harm…” (Plaintiff’s May 11, 2023 Reply at p. 9:9-12.) Plaintiff asserts that the District’s distinction between “the unsuccessful claims based on the removal on October 7, 2007 and the successful claim based on the failure to re-instate after November 29, 2007” is without a difference, because “[a]ll of the claims related to [the District’s] refusal to let Mr. Lowery continue to work; they were just separated by about seven (7) weeks in time.” (Plaintiff’s May 11, 2023 Reply at p. 9:22-23.)

Based on a consideration of the foregoing, the Court finds that Plaintiff has the better argument that his unsuccessful claims are not “distinct in all respects” from his successful claims, or that his unsuccessful claims sought to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted was premised.

The Court notes that the FAC contains factual “allegations common to all causes of action.” (FAC, p. 2:20.) In Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at page 431, discussed above, the Court of Appeal found that the subject causes of action in that case “[a]ll involved underlying disability and age discrimination issues and are based on 52 paragraphs of facts in Wysinger’s complaint, which he alleged were common to all causes of action.”

Similarly, here, the FAC alleges that Plaintiff “injured his back in course and scope of his job duties as a Heating and Air Conditioning Technician working for [the District].” (FAC, ¶ 10.) Plaintiff worked for the District “on modified work from the time of his injury of 04/11/06 until approximately October 8, 2007.” (FAC, ¶ 22.) On October 8, 2007, Plaintiff attended a meeting with the District, and the District refused to let Plaintiff keep working because the District “believed that the report of Dr. Steven Grahek contradicted the job duties of [Plaintiff] as a Heating and Air Conditioning Technician.” (FAC, ¶¶ 28-29.) Plaintiff’s first cause of action for disability discrimination alleges, inter alia, that “defendants have violated the FEHA by discriminating against [Plaintiff] on the basis of disability…” (FAC, ¶ 34.) Plaintiff’s fourth cause of action for failure to prevent disability discrimination alleges that the District “failed to prevent discrimination on the basis of disability.” (FAC, ¶ 58.)

Plaintiff’s second cause of action for failure to engage in a good faith, timely interactive process alleges that “[h]aving been placed on notice of Plaintiff’s disability [the District] had an affirmative duty to engage in a timely, good faith interactive process with the Plaintiff, in order to determine effective reasonable accommodations. Defendants failed to comply with this mandatory duty…” (FAC, ¶ 41.) Plaintiff’s third cause of action for failure to accommodate alleges that “[b]eginning on or about October 8, 2007, and continuing thereafter to present, Defendants discriminated against Plaintiff by failing to provide reasonable accommodations to the Plaintiff.” (FAC, ¶ 50.) Plaintiff’s fifth cause of action for retaliation alleges that the District “terminated [Plaintiff] for his disability/restrictions imposed by the doctor in the workers’ compensation case, even though Dr. Grahek indicated that [Plaintiff] could continue working as a HVAC Technician,” and that Plaintiff “was retaliated against because he filed a workers’ compensation case…Immediately after [the District] became aware that [Plaintiff’s] injury was a compensable injury from a workers’ compensation report, [the District] began the proceedings to stop [Plaintiff] from working for [the District].” (FAC, ¶¶ 63, 64.) In Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at page 431, the Court of Appeal noted that “[e]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts.” (Internal quotations omitted.) The Wysinger Court further noted that “Wysinger prevailed on the interactive process claim which involves proof of disability.” (Id. at p. 431.)

As to the District’s assertion that reductions are warranted based on “Plaintiff’s relatively limited success in achieving his chief objective (reinstatement),” (Opp’n at p. 15:11-12), Plaintiff responds that Plaintiff’s decision to forego seeking reinstatement and opt for a money settlement instead is not a measure of lack of success. (See David M. deRubertis Decl. in Support of Reply, ¶ 11.) In its supplemental brief, the District asserts that “the Court of Appeal’s decision not to affirm the reinstatement order further undermines Lowery’s attempt to argue that the damages resulting after appeal were essentially unchanged from the judgment, and thus that there was no difference between Lowery’s unsuccessful and successful claims.” (District’s April 27, 2023 Supplemental Opposition Brief at p. 8:25-28.) The Court notes that the Court of Appeal’s November 21, 2013 Order Modifying Opinion in this matter provides, inter alia, that the Court of Appeal’s October 24, 2013 Opinion is modified to read, “[t]he matter is remanded to the superior court with directions to determine and award damages, reinstatement, and/or other remedies to which Lowery may be entitled as a result of the District’s failure to engage in a good faith interactive process after November 29, 2007.” (Smith Decl., ¶ 2, Ex. A.)

As set forth above, in Vines v. O'Reilly Auto Enterprises, LLC, supra, 74 Cal.App.5th at page 183, the Court of Appeal found that “[i]f…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. 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.’” (Internal citation omitted.) The Court does not find that the District has demonstrated that Plaintiff achieved only limited success here. Plaintiff’s counsel indicates in his declaration in support of the motion that “the end result of [the District’s] decision to appeal then-Judge Segal’s decision is that [the District] will pay Scott Lowery more money in settlement than had it not filed its appeal. The judgment at the time of [the District’s] appeal entitled Mr. Lowery to damages in the sum of four hundred thirty-seven thousand four hundred and sixty dollars ($437,460.00) while the settlement required [the District] to pay Mr. Lowery six hundred thousand dollars ($600,000.00).” (deRubertis Decl., ¶ 83.)

Lastly, the District asserts that Mr. Lucien’s billing records contain duplicate entries. The District states that such duplicate entries are highlighted for the Court’s reference, but Exhibit I attached to the District’s counsel’s declaration does not contain any highlights. (Smith Decl., ¶ 12, Ex. 1.) It is thus unclear what specific entries the District contends are duplicates. The District does not otherwise object to specific time entries in Plaintiff’s counsel’s billing records in the opposition.[4]

As discussed in the Court’s April 6, 2023 Order, Plaintiff requests a lodestar total of $1,135,951.30 for work performed by The deRubertis Law Firm, APC, Pine Tillet Pine, LLP, and the Lucien Law Group. (deRubertis Decl., ¶ 118; Mot. at pp. 19:21-20:12.)

Based on the foregoing, Plaintiff’s motion for attorney’s fees is granted in part. Plaintiff is awarded attorney’s fees in the amount of $1,135,951.30.

[1]The Court notes that Plaintiff also cites to two non-binding federal cases in its May 11, 2023 reply.

[2]Plaintiff also notes that his counsel “determined that Plaintiff should drop certain claims: (1) failure to prevent; and (2) retaliation,” and that such claims “were ultimately dismissed for tactical reasons.” (deRubertis Decl., ¶ 104.)

[3]In his May 11, 2023 reply, Plaintiff cites to Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983, where the Court of Appeal “disagree[d]…with Wysinger’s construction of section 12940(n)” and “conclude[d] that the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim.”

[4]The District’s opposition provides, “Defendant would request the opportunity to file a supplemental briefing objecting to specific entries in the itemized billing statements attached to the Motion in the event the Court accepts the Motion as timely or after the Court determines whether entries related to specific causes of action should be excluded.” (Opp’n at p. 15:15-18.) The Court notes that the District does not cite to any legal authority to support this proposed approach.

SCOTT LOWERY, Plaintiff, vs. LOS ANGELES COMMUNITY COLLEGES, et al., Defendants.	Case No.:	BC413753
	Hearing Date:	May 25, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION FOR STATUTORY ATTORNEYS’ FEES

Superior Court of California

County of Los Angeles

Department 50