Filed 4/30/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE



 AUGUSTINE CALDERA,

      Plaintiff and Appellant,                          G057343, G057478

          v.
                                                        (Super. Ct. No. CIVDS1000177)
 DEPARTMENT OF CORRECTIONS
 AND REHABILITATION et al.,                             OPINION

      Defendants and Respondents.




                  Appeal from an order of the Superior Court of San Bernardino County,
Bryan F. Foster, Judge. The order is reversed. The case is remanded with directions.
                  Scolinos, Sheldon & Nevell and Todd F. Nevell for Plaintiff and Appellant.
                  Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney
General, Elisabeth Frater and Mark Schreiber, Deputy Attorneys General for Defendants
and Respondents.


                                  *            *             *
              This is an appeal from a trial court’s order of attorney fees under the Fair
Employment and Housing Act (FEHA). Augustine Caldera is a prison correctional
officer who sometimes stutters when he speaks. In 2010, Caldera filed a lawsuit against
the California Department of Corrections and Rehabilitation (CDCR) and his supervisor
alleging disability discrimination. The trial court granted defendants’ motion for
summary judgment. We reversed; we held that a stutter constitutes a disability under the
FEHA. (Caldera v. [CDCR] et al. (Feb. 25, 2014) [nonpub. opn.] (Caldera I).)
              A jury found in Caldera’s favor and awarded $500,000. The court granted
a motion for new trial because it found the damage award excessive. We reversed on
procedural grounds. (Caldera v. [CDCR] (2018) 25 Cal.App.5th 31, 34 (Caldera II).)
              After nearly a decade of litigation, Caldera sought about $2.4 million in
statutory attorney fees (a $1.2 million “lodestar” and a 2.0 “multiplier”). The court
awarded a little over $800,000. Caldera appeals.
              An attorney fee award under the FEHA is designed to incentify and reward
a plaintiff’s attorney in a civil rights case. Trial courts first determine a lodestar amount:
the hours spent times a reasonable hourly rate. Courts may then increase the amount,
usually by applying a multiplier to the lodestar. The multiplier is to compensate for
extrinsic factors such as the risk of nonpayment (the contingency factor), the public
interest advanced by the case, the difficulty of the issues involved, and the skill of the
attorneys. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135 (Ketchum).)
              Here, Caldera could not find a local attorney to take his discrimination
lawsuit, so he hired an out-of-town firm. But when calculating attorney fees, the court set
the attorneys’ hourly rate based on a lower local rate, rather than a higher out-of-town
rate. The court then applied the extrinsic Ketchum factors to the hourly rate, rather than
applying a multiplier to the lodestar. In sum, Caldera’s attorneys were not adequately
compensated consistent with the purposes of the FEHA.
              Thus, we reverse the trial court’s order for attorney fees.

                                              2
                                              I
                     FACTS AND PROCEDURAL BACKGROUND
              In 2008, Caldera worked at the California State Institute for Men in San
Bernardino County. Caldera’s supervisor, Sergeant James Grove, and other prison
employees mocked and mimicked Caldera’s stutter. (Caldera II, supra, 25 Cal.App.5th
at pp. 34-35.) A witness later “agreed that ‘there was ‘a culture of joking’ at the prison
about Caldera’s stutter.” (Id. at p. 35.)
              Caldera filed a formal grievance with the CDCR. Caldera “complained of
harassment and discrimination on the basis of my stuttering disability and asked that
Sergeant James Grove’s discriminatory actions be investigated.” Caldera later “received
a letter from the [CDCR’s] Office of Civil Rights informing me that my complaint had
been rejected because my stuttering disability was ‘not recognized as a disability under
EEO law, although it is recognized by ADA as a disability.’”
              Caldera then “contacted numerous local lawyers” in the Inland Empire “all
of whom turned me down. I then expanded my search for a lawyer to Los Angeles
County. I spoke to lawyers at [a law firm] in Los Angeles and was told that my potential
case would be reviewed, but I never heard back. Ultimately, in April 2009 I was referred
to Attorney Todd Nevell of Scolinos, Sheldon & Nevell in Pasadena, who met with me
and agreed to represent me on a contingency basis.”


Court Proceedings
              In 2010, Caldera sued the CDCR and Grove for various causes of action
related to his stuttering. The trial court granted the defendants’ motion for summary
judgment. This court reversed: “We conclude that having a stutter constitutes a
disability under the [FEHA]. We further conclude the moving papers contain sufficient
evidence for a trier of fact to reasonably find Caldera was discriminated against because
he stutters.” (Caldera I, supra, G048943 [nonpub. opn.].)

                                             3
                In 2015, there was a 13-day jury trial. Caldera was represented by Nevell,
and his partner Daniel Sheldon. The defendants were represented by the Attorney
General. The jury returned verdicts in Caldera’s favor and awarded him $500,000 in
noneconomic damages. The court granted defendants’ new trial motion “‘limited to
damages.’” (Caldera II, supra, 25 Cal.App.5th at p. 47.) This court affirmed in part and
reversed in part. We affirmed the jury’s verdicts, holding that “the harassing conduct was
both severe and persuasive.” (Id. at p. 43.) We reversed the trial court’s granting of
defendants’ motion for new trial on procedural grounds. (Id. at pp. 47-48.)
                In 2018, after jurisdiction of the case returned to the trial court, Caldera
                                                                                         1
filed a motion for attorney fees under the FEHA. (Gov. Code, § 12965, subd. (b).)
Caldera’s request covered nearly a decade of litigation to include the jury trial and the
two appeals. Caldera requested a lodestar amount of $1,234,182.50 and a 2.0 multiplier,
for a total of $2,468,365.00. After conducting hearings and making various adjustments,
the court awarded $810,067.50 in statutory attorney fees.


                                                II
                                         DISCUSSION
                Caldera appeals from the trial court’s attorney fee award order. We review
a court’s attorney fee award for an abuse of discretion. (Carpenter & Zuckerman, LLP v.
Cohen (2011) 195 Cal.App.4th 373, 378.)
                We will first look at the general legal principles concerning attorney fee
awards under the FEHA, then we will review the underlying relevant proceedings that
occurred in this case, and then we will apply the law to the relevant facts.




1
    Further undesignated statutory references are to the Government Code.

                                                4
A. Legal Principles Concerning FEHA Statutory Attorney Fee Awards
              Generally, “each party to a lawsuit ordinarily pays its own attorney fees.”
(Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.)
However, a prevailing plaintiff in a workplace discrimination lawsuit is usually entitled
by statute to an award of attorney fees. (§ 12965, subd. (b); Williams v. Chino Valley
Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [in a FEHA action “a prevailing
plaintiff should ordinarily receive his or her costs and attorney fees unless special
circumstances would render such an award unjust”].)
              “In enacting the FEHA, the Legislature sought to safeguard the rights of all
persons to seek, obtain, and hold employment without discrimination on account of
various characteristics, which now include race, religion, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, and
sexual orientation.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984.)
              Through an attorney fee award, the FEHA encourages private counsel to
vindicate the right of an employee to work in an environment free from unlawful
discrimination. (See Flannery v. Prentice (2001) 26 Cal.4th 572, 583 [“‘“Without some
mechanism authorizing the award of attorney fees, private actions to enforce such
important public policies will as a practical matter frequently be infeasible”’”];
Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 [“the purpose
behind the [attorney] fee provision was to make it easier for a plaintiff of limited means
to bring a meritorious suit”].)
              In order to calculate an attorney fee award under the FEHA, courts
generally use the well-established lodestar method. The lodestar amount is simply the
product of the number of hours spent on the case, times an applicable hourly rate.
(Ketchum, supra, 24 Cal.4th at p. 1133 [the “lodestar figure [is] based on the reasonable
hours spent, multiplied by the hourly prevailing rate for private attorneys in the
community conducting noncontingent litigation of the same type”].)

                                              5
              In most contingency cases, courts may then increase the lodestar amount by
applying a multiplier. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379,
1399 [it is not unusual for counsel to ask for a multiplier in contingent fee cases].) The
purpose of the multiplier is to reward the prevailing attorney with an increased fee in
light of the extrinsic Ketchum factors: the importance and difficulty of the litigation; the
novelty of the issues involved; the risk of nonpayment for the attorney’s services (the
contingency factor); the skill of the attorney in presenting the case; and the magnitude of
the results obtained. (Ketchum, supra, 24 Cal.4th at pp. 1132-1134.)


B. Relevant Proceedings
              After prevailing at the jury trial and a second successful appeal, Caldera
filed a motion for $2,468,365.00 in statutory attorney fees under the FEHA, which
represented a lodestar amount of $1,234,182.50, and a 2.0 multiplier.
              In support of the lodestar, Caldera attached exhibits including time sheets
for Nevell (1,324.80 hours at $750 per hour) and Sheldon (285.85 hours at $750 per
hour), and billing records for appellate attorney Norm Pine (40.30 hours at $650 per
hour). Caldera also attached a declaration by James Desimone, a Los Angeles-based
employment attorney. Desimone averred under penalty of perjury: “I am familiar with
the rates charged by plaintiff-side employment attorneys throughout Southern
California.” Desimone opined: “I find Mr. Nevell and Mr. Sheldon’s hourly rates
reasonable in part because I am a thirty-three year lawyer with similar honors and
accolades and currently charge $875.00 an hour for my services.”
              In support of the 2.0 multiplier, Caldera attached numerous exhibits to the
motion, including articles from several publications, including: The National Law
Review Employment Law Notes (“Court Affirms $500,000 Jury Award to Employee
Who Stutters”); California Civil Practice Employment Litigation (“evidence was
sufficient to support a verdict that the harassment of a correctional officer employee, who

                                              6
spoke with a stutter, was severe or pervasive”); Johnston Mediation Recent Employment
Decisions (“substantial evidence supported the jury’s factual finding of disability
harassment”); Tyson & Mendes (“Disability Harassment in the Workplace Lands $500k
Jury Verdict for Mimicking and Mocking an Employee’s Stutter”); Liberty Cassidy
Whitmore (“Supervisor Who Mocked Employee’s Stutter Violated FEHA’s Prohibition
on Disability Harassment”); and Business Insurance (“Court reinstates $500,000
disability award to prison guard”).
              Nevell also filed his own declaration in support of the 2.0 multiplier.
Nevell averred: “My firm took an enormous risk in initially agreeing to take this case
and then again when we agreed to handle the appeal of the dismissal of the case on
summary judgment – all on a contingency. . . . Most lawyers would have cut their
[losses] after the case was dismissed on summary judgment. We did not. We believed
that Caldera and others who are similarly disabled had a protected disability. We
believed that Caldera had been subjected to unlawful harassment and discrimination
based on that disability and that important workplace rights were at stake. Thereafter, . . .
against great odds we successfully reversed summary judgment . . . , prevailed at trial . . .
and prevailed on the second appeal. . . . All of this was at great financial risk to us. We
are a small firm. We devoted more than an entire year’s worth of my salary to
prosecuting the case. We advanced more than $90,000 in costs alone. We have received
nothing in return. Had we lost, it would have resulted in a significant economic burden
on our firm. The delay in receiving any compensation has been extraordinary. This case
has been pending more than 4 times longer than my typical employment case. If any case
ever justified a 2.0 multiplier, this one does.”
              In further support of the 2.0 multiplier, attorney Desimone averred: “Given
the challenges faced on this case, few attorneys would have risked advancing litigation,
expert, and trial costs, to say nothing of ‘loaning’ the plaintiff thousands of attorney
hours. It is my understanding that the CDCR’s highest pre-trial offer was $70,000 . . . .

                                               7
When contrasted with the CDCR’s settlement offer, the results Mr. Nevell and Mr.
Sheldon obtained in this case were outstanding.” Desimone went on to opine that the
“published opinion . . . will benefit thousands of victims of employment discrimination.
Again, the verdict obtained by Mr. Nevell and Mr. Sheldon not only helps the plaintiff in
this case, it will also serve to protect thousands of State employees of the CDCR who
have been, or may be in the future, discriminated against and harassed based on a
disability or other protected right.”
              The defendants filed a response to the motion for attorney fees, urging the
court to reduce the number of attorney hours, but they did “concede a lodestar hourly
attorney fee of $576.23 per hour.” The defendants proposed $551,237.88 as the lodestar
amount, and opposed any multiplier. As far as the extrinsic factors, the defendants
argued the contingent risk was small, Caldera’s attorneys were not precluded from other
work, and the “multiplier is not appropriate because only a private financial interest was
advanced by the matter.” (Boldfacing omitted.)
              The trial court ruled: “The hourly rate requested by the Plaintiff is too high
for this locale. A reasonable rate is between $450 and $550, before application of any
multiplier. Considering the length of this case and the hurdles Plaintiff had to overcome
to get to this point, the higher rate of $550 per hour is reasonable.” The court adjusted
downward the number of attorney hours, and ultimately calculated $810,067.50 as the
lodestar amount.
              The court noted Caldera “seeks a multiplier of 2.0 based on the following
factors: (1) contingent risk; (2) preclusion of acceptance of other work; (3) exceptional
results obtained; (4) public interest advanced by the case; and (5) difficulty of issues
involved.” The court recognized that “taking the case precluded other employment by
counsel, the quality of the representation and results obtained, and the undesirability of
the case, factors approved in Ketchum, supra, [24 Cal.4th at p.] 1132.” However, the



                                              8
court stated: “Each of these factors is already considered when setting the lodestar rate of
$550, which is at the high end of attorney’s fees awards in San Bernardino County. [¶]
. . . Plaintiff claims [this case] is the first case to find a discrimination claim can be based
on a stuttering disability . . . . Although the appeal was published and discussed in
several publications, it is not found to be stunningly unique on review.”


C. Legal Analysis
              When a plaintiff needs to hire out-of-town counsel, a trial court must
consider counsel’s “home market rate” when setting the hourly rate, rather than the local
market rate. (Center for Biological Diversity v. County of San Bernardino (2010) 188
Cal.App.4th 603, 619.) In Center for Biological Diversity, environmental groups (the
plaintiffs) filed a writ of mandate and successfully stopped a housing development, which
had been approved by the County of San Bernardino. (Id. at p. 609.) When ruling on the
plaintiffs’ request for attorney fees, the trial “court disallowed hourly rates of out-of-town
counsel that exceeded local Inland Empire rates of $370 . . . .” (Id. at p. 611.) The Court
of Appeal reversed because the plaintiffs “presented undisputed evidence that qualified
local representation that would accept reduced rates or a contingency arrangement was
unavailable.” (Id. at p. 615.) Relying on several published opinions, the court held that
the trial “court abused its discretion by applying local market rates rather than counsel’s
home market rates.” (Id. at p. 619.)
              In FEHA cases, it is particularly important for trial courts to apply an out-
of-town rate when a plaintiff cannot secure a local attorney. (Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th 359, 397-400
(Horsford).) In Horsford, a group of campus police officers prevailed in a FEHA racial
discrimination lawsuit against California State University at Fresno. (Id. at pp. 371-372.)
The plaintiffs could not find a Fresno attorney to take the case on a contingency, so they
hired an attorney from the San Francisco area. (Id. at p. 398.) The plaintiffs later sought

                                               9
$3.1 million in attorney fees; the trial court awarded $1.2 million. (Id. at p. 372.) The
Court of Appeal reversed, in part, because the trial “court erred in failing adequately to
consider the propriety of a higher hourly rate for . . . a San Francisco attorney, in order to
accomplish the purposes of FEHA.” (Id. at p. 397.)
              In Horsford, the Court of Appeal explained the rationale for its holding:
“the Supreme Court has used the formulation ‘basic fee for comparable services in the
community.’ However, it has never hinted that, in the unusual circumstance that local
counsel is unavailable, the trial court is limited to the use of local hourly rates. The
purpose of statutory attorney fee provisions is to provide financial incentives necessary
for the private enforcement of important civil rights. [Citation.] If . . . the local bar has
not the resources to engage in complex litigation on a contingency-fee basis, the public
interest in the prosecution of meritorious civil rights cases requires that the financial
incentives be adjusted to attract attorneys who are sufficient to the cause. In the absence
of any realistic indication plaintiffs could have found local counsel, it was an abuse of
discretion to fail even to consider an hourly rate based on counsel’s ‘home’ market rate.”
(Horsford, supra, 132 Cal.App.4th at p. 399.)
              Here, the trial court rejected Caldera’s request of $750 per hour because it
was “too high for this locale.” Instead, the court lowered the hourly rate to $550 per
hour, which the court stated was at the top of the local rate for counsel in San Bernardino
County ($450 to $550 per hour). But there was unrefuted evidence that Caldera was
unable to find an attorney that would take his case in the Inland Empire (the greater San




                                              10
Bernardino and Riverside areas). This was an abuse of discretion because the court failed
                                                                                   2
to consider the out-of-town market rates of the attorneys involved in this case.
              Based on the undisputed record, the trial court’s award of $550 per hour
was lower than the comparable rate for similarly experienced attorneys in the Los
Angeles County area (even the Attorney General conceded that a reasonable rate should
exceed $550 per hour). Thus, we reverse the trial court’s order. On remand, we direct
the court to recalculate the loadstar amount based on the attorneys’ local market rate (Los
Angeles County rather than San Bernardino County).
              As far the trial court’s rejection of Caldera’s requested 2.0 multiplier, what
complicates our review is that the court properly acknowledged that many—if not all—of
the extrinsic Ketchum factors applied in this case. We wholeheartedly agree. The trial
court apparently recognized that suing a state agency for discrimination based on a
stuttering disability was a novel lawsuit of statewide importance, although the court
found it not to be “stunningly unique.” The court also appropriately recognized “taking
the case precluded other employment by counsel, the quality of the representation and
results obtained, and the undesirability of the case.”
              However, rather than applying a multiplier to the lodestar amount based on
the Ketchum factors, the trial court stated: “Each of these factors is already considered
when setting the lodestar rate of $550, which is at the high end of attorney fees awards in
San Bernardino County.” To be clear, the court’s application of the Ketchum factors to
the hourly rate did not—in and of itself—constitute error. (See Ketchum, supra,


2
  Caldera also argues that the trial court erred by reducing the number of lodestar hours
from 1650.95 to 1412.85. But the court’s overall reduction in hours was the sum of
several discreet discretionary rulings. For instance, the court granted “50 hours for
opposing the MSJ, a reduction of 17.75 hours for Nevell.” A trial court is generally in
the best position to make these kinds of discretionary judgments. (See PCLM Group Ins.
v. Drexler (2000) 22 Cal.4th 1084, 1096.) As to the reduction of lodestar hours, we do
not find an abuse of the court’s discretion.

                                             11
24 Cal.4th at pp. 1132-1136 [the contingency adjustment may be made at the lodestar
phase of the court’s calculation or by applying a multiplier, but not both].) But based on
the court’s approach, we cannot determine exactly what increase to the hourly rate the
court applied in light of the Ketchum factors it had appropriately acknowledged (although
the total attorney fee award was manifestly inadequate based on the court’s error in
failing to apply the higher out-of-town-rate as previously discussed).
              To conclude and reiterate, as far as the loadstar, we direct the trial court on
remand to set the hourly rate “based on counsel’s ‘home’ market rate.” (Horsford, supra,
132 Cal.App.4th at p. 399.) And because the court will be determining the lodestar based
on counsel’s home market rate rather than a local rate, the court’s ultimate ruling on
attorney fees will be more easily understood if the court recognizes the Ketchum factors
through the use of a multiplier rather than by an adjustment of the lodestar. Finally, the
total attorney fee award must support the purposes of the FEHA, consistent with the
court’s exercise of its discretion.


                                             III
                                      DISPOSITION
              The trial court’s order granting attorney fees is reversed. The trial court is
directed to enter a new order consistent with the holding of this opinion.
              Caldera is awarded his costs on appeal.


                                                   MOORE, ACTING P. J.

WE CONCUR:


ARONSON, J.


IKOLA, J.

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