Filed 7/15/13 Young v. Mountain Empire Unified School Dist. CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DIANE K. YOUNG,                                                      D061228

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. 37-2010-00065929-
                                                                     CU-OE-EC)
MOUNTAIN EMPIRE UNIFIED SCHOOL
DISTRICT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joel R.

Wohlfeil, Judge. Affirmed as modified.



         Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV for

Defendant and Appellant.

         Law Office of David A. Miller and David A. Miller for Plaintiff and Respondent.

         Mountain Empire Unified School District (MEUSD) appeals from an adverse

judgment after a bench trial in a lawsuit brought by former high school principal Diane

Young alleging that she was unlawfully demoted in retaliation for reporting sexual
harassment by MEUSD's former superintendent. MEUSD contends that (1) the trial

court's finding that MEUSD retaliated against Young in violation of the Fair Employment

and Housing Act (Govt. Code, § 12940 et seq.)1 (FEHA) is not supported by substantial

evidence; (2) the trial court abused its discretion by making a purportedly excessive

award of attorney fees to Young; and (3) the trial court should have awarded

postjudgment interest at the rate of 7 percent per annum instead of 10 percent. We

conclude that postjudgment interest should have been awarded at the rate of 7 percent per

annum, but that MEUSD's remaining arguments lack merit. We accordingly modify the

judgment to correct the postjudgment interest rate, and we affirm the judgment as

modified.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       In 2006, Young became the principal of Mountain Empire High School, which is a

part of MEUSD. Patrick Judd was the superintendent of MEUSD at the time.

       According to Young, Judd made several crude and unwelcome sexual comments

and advances toward her in 2006 and 2007. Several other employees of MEUSD told

Young that they had been sexually harassed by Judd. In late 2007, Young contacted the

MEUSD school board about the sexual harassment that Judd had directed toward her and

the other employees. Young met with school board president Ken Northcote to explain



1     Unless otherwise indicated, all further statutory references are to the Government
Code.

                                             2
her allegations against Judd. According to Young, Northcote told her that he had been

friends with Judd for many years.

      As a result of Young's report, MEUSD conducted an investigation, including

retaining an investigator who interviewed Young in December 2007. Judd retired from

his position at MEUSD in March 2008, and he was replaced by a interim superintendent,

Donald Haught.

      Steven Van Zant became MEUSD's permanent new superintendent in July 2008.

Young testified that she tried to inform Van Zant about the reason for Judd's departure,

but Van Zant cut her off and did not listen to her, which made her uncomfortable.

      According to Young's testimony, she perceived an immediate negative attitude

from Van Zant toward her and believed that he was attempting to retaliate against her for

reporting Judd's harassment. Young stated that even before Van Zant officially took over

as superintendent, he started criticizing her performance by making negative comments

about the graduation ceremony, which she believed were unfounded. Early in the school

year, Van Zant criticized Young's handling of a football game, complaining that there

were not two ambulances on site, although, according to Young, it is the role of the

athletic director to arrange for the presence of ambulances and budgetary issues limited

ambulance availability.

      Van Zant verbally informed Young in February 2009 that he might remove her

from the position of principal. At the time, according to Young, Van Zant said the

removal was because Young did not have good football game management skills and

because of her absences from campus, but gave no other reasons.

                                            3
       On March 12, 2009, Van Zant sent a written notice to Young, pursuant to

Education Code section 44951, informing her that she "may be released from [her]

present position as High School Principal and reassigned to a classroom position,

effective at the beginning of the 2009-[20]10 school year." On the same date, Van Zant

gave Young three memoranda.

       The first memorandum contained a list of "directives" that Van Zant expected

Young to follow, such as (1) being on site each day from 7:00 a.m. to 3:00 p.m. unless

she received express permission to leave; (2) providing "personal leadership to [her] staff

through solving problems — not just passing them on to another leadership team

member"; and (3) preparing various reports and plans regarding the high school.

       The second memorandum was an addendum to Young's February 2009 mid-year

evaluation. The memorandum evaluated whether Young made progress in areas that had

been identified as her three performance goals: (1) decreasing referrals and suspensions;

(2) increasing skills in differentiated teaching, thereby increasing test scores and student

learning; and (3) providing opportunities for staff to develop certain collaborative skills

and involving parents in the community. Van Zandt commented negatively on Young's

progress toward meeting the three goals, stating that he had not seen evidence of Young's

actions in several areas. He concluded by saying that "[a]t this time, I lack confidence in

your ability to effectively lead the school in a direction that is positive and productive."

       The third memorandum set forth eight concerns with Young's work performance

and explained that Van Zant would be "conducting an exacting review of [Young's]

performance" to make a final determination on whether to reassign her. The eight

                                              4
concerns involved (1) Young's attendance at work; (2) Young's ability to supervise

underperforming employees and deal with difficult employee situations; (3) Young's

approach to student discipline; (4) Young's lack of a defined strategy to improve student

performance; (5) Young's failure to provide adequate programs for at-risk and English-

language-learner students; (6) Young's lack of focus on a vision and plan to create future

success for the school; (7) Young's failure to provide adequate programmatic supervision

for ROP [regional occupational program], athletics and special education programs; and

(8) Young's insufficient grasp of the skills necessary to prepare a budget and a school

master schedule.

       Young responded in writing to Van Zant's eight enumerated concerns, specifically

addressing each item and providing supporting documentation in some instances or

asking for clarification in other instances. For example, regarding Van Zant's criticism of

her absences from campus, Young provided Van Zant with documentation showing that

the absences were approved or were for school business or health reasons.

       Around this time, Young spoke individually with school board members and gave

them information rebutting Van Zant's criticisms.

       The school board voted to reassign Young at a May 13, 2009 meeting, and

Van Zant sent Young a notification letter on that date, stating that she was being

reassigned to the classroom at the beginning of the 2009-2010 school year, which meant

a significant reduction in pay. Young believed that she was being demoted in retaliation

for reporting Judd's sexual harassment.



                                             5
       In response to Young's request that she be given a reason for the reassignment,

Van Zant sent Young a letter on June 3, 2009, stating that the "reason for this action was

loss of confidence in your ability to function effectively as part of the current

management team of the District."

       Young filed a complaint against MEUSD alleging three causes of action under

FEHA: (1) unlawful retaliation in violation of section 12940, subdivision (h); (2) failure

to take immediate, appropriate corrective action in violation of section 12940,

subdivision (j)(1); and (3) failure to prevent retaliation in violation of section 12940,

subdivisions (j) and (k).

       The trial court conducted a bench trial over the course of several days. After

taking the matter under submission, the trial court issued a 20-page statement of intended

decision, finding in favor of Young on the causes of action for retaliation and failure to

prevent retaliation, awarding Young $150,000 in non-economic damages. Among the

trial court's findings was that "[Young's] report of sexual harassment by Mr. Judd was a

motivating reason for [MEUSD] to demote [Young]." The trial court discussed the

specific evidence that had convinced it that "the reasons cited by [MEUSD] to demote

[Young] were a pretext," including that Young had refuted the factual validity of several

of Van Zant's criticisms of her job performance. After considering MEUSD's objections,

the trial court confirmed its statement of decision and entered judgment in favor of

Young.

       Young filed a motion for attorney fees, seeking an award based on a lodestar

calculated on an hourly rate of $475 for her attorney, David A. Miller, plus a multiplier of

                                              6
1.6. MEUSD did not challenge the reasonableness of the hours spent by Miller on the

litigation, but argued that an hourly rate of $475 was too high and that a multiplier should

not be applied. The trial court granted the motion for attorney fees in the amount

requested by Young, for a total fee award of $439,645.

       MEUSD appeals, contending that (1) insufficient evidence supports the trial

court's findings in favor of Young; (2) the trial court abused its discretion by awarding an

excessive amount of attorney fees; and (3) the trial court improperly awarded

postjudgment interest at the rate of 10 percent instead of 7 percent.

                                                II

                                       DISCUSSION

A.     Substantial Evidence Supports the Trial Court's Findings That MEUSD
       Unlawfully Retaliated Against Young

       We first address MEUSD's challenge to the sufficiency of the evidence to support

the trial court's findings in favor of Young.

       1.     Standard of Review

       "When a judgment or finding of fact is attacked on the ground that there is no

substantial evidence to sustain it, the power of the appellate court begins and ends with

the determination of whether there is any substantial evidence, contradicted or

uncontradicted, that will support the finding or judgment. [Citation.] Substantial

evidence is evidence of ponderable legal significance, reasonable in nature, and of solid

value. [Citations.] In reviewing the record for substantial evidence, we are required to

review the entire record in the light most favorable to the judgment." (George v.


                                                7
California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489

(George).) "When two or more inferences can reasonably be deduced from the facts, a

reviewing court is without power to substitute its deductions for those of the fact finder,

even if [we] might have reached a contrary conclusion." (Id. at p. 1492.)

       2.     Applicable Legal Standards for Retaliation Claims Under FEHA

       The fundamental statutory provision at issue here is FEHA's anti-retaliation

provision, which makes it unlawful "[f]or any employer . . . to discharge, expel, or

otherwise discriminate against any person because the person has opposed any practices

forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted

in any proceeding under [FEHA]." (§ 12940, subd. (h).) There is no dispute that making

a report of sexual harassment, as Young did here, qualifies as opposing a practice

forbidden under FEHA for the purpose of a retaliation claim. (Cf. § 12940, subd. (j)(1)

[identifying sexual harassment as an unlawful practice under FEHA].)

       "The elements of a claim for retaliation in violation of section 12940, subdivision

(h), are . . . : (1) the employee's engagement in a protected activity, i.e., 'oppos[ing] any

practices forbidden under this part'; (2) retaliatory animus on the part of the employer;

(3) an adverse action by the employer; (4) a causal link between the retaliatory animus

and the adverse action; (5) damages; and (6) causation." (Mamou v. Trendwest Resorts,

Inc. (2008) 165 Cal.App.4th 686, 713 (Mamou).)2 "Proof of two of these elements —




2     In accordance with these elements, the California Civil Jury Instruction (CACI)
No. 2505 – Retaliation states as follows:
                                              8
the second and fourth — is likely to depend on circumstantial evidence, since they

consist of subjective matters only the employer can directly know, i.e., his attitude toward

the plaintiff and his reasons for taking a particular adverse action." (Ibid., italics added.)

       3.     The Trial Court's Finding of Retaliation Is Supported by Substantial
              Evidence

       MEUSD's challenge to the sufficiency of the evidence to support the retaliation

finding focuses on the requirement that Young establish a causal link between her

reporting of Judd's harassment and MEUSD's decision to reassign her from the principal

position. MEUSD argues that ". . . Young never demonstrated the proper causal

connection between her whistle blowing report[] and the District's demotion of her to

classroom teacher."

       In determining whether the evidence is sufficient to support a finding in favor of

Young on the required causal element, we evaluate whether the evidence supports a

       "[Name of plaintiff] claims that [name of defendant] retaliated against [him/her]
for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff]
must prove all of the following:
       "1.    That [name of plaintiff] [describe protected activity];
       "2.    [That [name of defendant] [discharged/demoted/[specify other adverse
employment action]] [name of plaintiff];]
       "[or]
       "[That [name of defendant] subjected [name of plaintiff] to an adverse employment
action;]
       "[or]
       "[That [name of plaintiff] was constructively discharged;]
       "3.    That [name of plaintiff]'s [describe protected activity] was a motivating
reason for [name of defendant]'s [decision to [discharge/demote/[specify other adverse
employment action]] [name of plaintiff]/conduct];
       "4.    That [name of plaintiff] was harmed; and
       "5.    That [name of defendant]'s conduct was a substantial factor in causing
[name of plaintiff]'s harm."

                                               9
finding of "a causal link between the protected activity and the employer's action."

(George, supra, 179 Cal.App.4th at p. 1489.) It is sufficient if the "retaliatory animus

was at least a substantial or motivating factor in the adverse employment decision"; it

need not be the sole motivating factor. (Ibid., italics added.)3

       "Both direct and circumstantial evidence can be used to show an employer's intent

to retaliate. 'Direct evidence of retaliation may consist of remarks made by

decisionmakers displaying a retaliatory motive. [Citation.]' [Citations.] Circumstantial

evidence typically relates to such factors as the plaintiff's job performance, the timing of

events, and how the plaintiff was treated in comparison to other workers." (Colarossi v.

Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).)

       Here, the trial court's statement of decision identified numerous items of

circumstantial evidence that support an inference that MEUSD demoted Young in

retaliation for her reporting of Judd's sexual harassment.

       First, as the trial court explained, the evidence supported a finding that Young

performed very well in her position as principal, with many accomplishments, and that

she was valued by students, parents and the community. Favorable job performance is



3      As we have explained, the trial court found in favor of Young on two of her causes
of action — unlawful retaliation and failure to prevent unlawful retaliation. MEUSD
challenges the findings on both causes of action but bases its challenge in both instances
on an identical argument. Specifically, MEUSD argues that insufficient evidence
supports a finding that MEUSD took any retaliatory action, and therefore neither a cause
of action for retaliation nor a cause of action for failure to prevent retaliation can stand.
Our conclusion that substantial evidence supports a finding that MEUSD retaliated
against Young disposes of MEUSD's appellate challenges to both causes of action.

                                             10
one aspect of circumstantial evidence that a trial court can reasonably rely on to infer that

the plaintiff suffered an adverse employment action based on impermissible reasons.

(Colarossi, supra, 97 Cal.App.4th at p. 1153.)4

       Second, the evidence supported a finding that at least some of Van Zant's asserted

criticisms of Young's job performance were demonstrably not based in fact and were

shown by Young to be inaccurate. In its statement of decision, the trial court closely

reviewed the evidence concerning several of Van Zant's criticisms of Young, and

explained — with specific citations to trial testimony and to trial exhibits — that the

evidence supported a finding that Van Zant's criticisms were not well founded or that

Young's description of the factual background for certain of those issues was more

credible than Van Zant's. Indeed, Young presented evidence to rebut Van Zant's criticism

of Young's absences from campus, employee supervision, student discipline, student

performance, Young's focus on the future success of the school, Young's programmatic

supervision, and Young's possession of the necessary skills to be an effective principal.

We have reviewed the record as to all of those issues and have found substantial support




4      MEUSD argues that "the trial court appeared to focus on the positive, and then
question why [MEUSD] would want to demote Young." According to MEUSD, "that is
not the test." We reject MEUSD's argument. As we read the trial court's analysis, it did
not focus solely on Young's successes as principal. Instead, the trial court properly
considered Young's successes, along with other circumstantial evidence — including
Van Zant's questionable criticisms and evidence of Van Zant's relationship with Judd —
to conclude that Young's reassignment was motivated by retaliation.

                                             11
for the trial court's conclusion that several of Van Zant's criticisms of Young were not

based on the facts.5

       Based on this evidence, the trial court could reasonably conclude that "the reasons

cited by [MEUSD] to demote [Young] were a pretext." The finding of pretext is

significant because "evidence that the employer's claimed reason is false — such as that it

conflicts with other evidence, or appears to have been contrived after the fact — will tend

to suggest that the employer seeks to conceal the real reason for its actions, and this in

turn may support an inference that the real reason was unlawful." (Mamou, supra, 165

Cal.App.4th at p. 715.) As the trial court reasonably did in this case, a finder of fact "can

take account of manifest weaknesses in the cited reasons in considering whether those

reasons constituted the real motive for the employer's actions, or have instead been

asserted to mask a more sinister reality." (Ibid.)

       Third, the evidence supports the trial court's finding that Judd had a relationship

with both school board member Northcote and with Van Zant that was stronger than any

of those men claimed during their testimony. Specifically, this finding could reasonably

be based on, among other things, (1) the trial court's negative assessment of Northcote's

credibility; (2) the testimony describing Northcote's reaction when Young reported Judd's



5       For example, as we have described, Young presented Van Zant with
documentation showing that her absences from campus were approved, and were for
school business or for health reasons, and at trial, Young extensively discussed the
evidence supporting all of her rebuttals to Van Zant's criticisms. The testimony of a
single witness is sufficient to prove a fact. (People v. Richardson (2008) 43 Cal.4th 959,
1030-1031.)

                                             12
harassment to him; (3) the testimony by Deputy Keith Nye that he twice saw Judd and

Van Zant lunching together after Van Zant became superintendent, and that several

school board members told him that Judd and Van Zant were friends;6 and (4) the trial

court's assessment that Judd's denial of recent contact with Van Zant was not credible

because Judd was forced to admit during his testimony that he had attended a board

meeting for a nonprofit organization with Van Zant despite his denial of any contact.

        The circumstantial evidence we have described — Young's positive job

performance, the demonstrable problems with Van Zant's criticisms of Young, and the

relationship that the trial court reasonably found to exist between Van Zant, Judd and

Northcote — collectively constitute substantial evidence to support the trial court's

finding that MEUSD removed Young from her position as principal, at least in part, in

retaliation for her reporting of Judd's harassment rather than because of the reasons

identified by Van Zant.




6      MEUSD suggests that Deputy Nye's testimony was suspect because Deputy Nye is
engaged to Young. However, the trial court was entitled to make credibility
determinations as it saw fit, which it is not our role to second guess. (People v. Jones
(1990) 51 Cal.3d 294, 314 [in review for substantial evidence, "it is the exclusive
province of the trial judge or jury to determine the credibility of a witness," and "we must
accord due deference to the trier of fact and not substitute our evaluation of a witness's
credibility for that of the fact finder"].) The trial court expressly stated that it found Nye's
testimony about seeing Judd and Van Zant together to be credible, and we may not
disturb that determination.

                                              13
       4.     MEUSD's Arguments Regarding the Insufficiency of the Evidence as to
              Causation Lack Merit

       MEUSD presents several specific arguments in its attempt to challenge the

evidentiary support for the trial court's causation finding, but as we will explain, none of

them have merit.

       First, MEUSD focuses on the length of time between Young's late 2007 report of

Judd's sexual harassment and the May 2009 notification that Young would be removed

from the principal position. MEUSD argues that "the length of time elapsing between the

report of harassment and the ultimate demotion is problematic" for a finding that the

demotion was based on retaliation. Specifically, MEUSD relies on case law arising

under federal employment discrimination law, such as Villiarimo v. Aloha Island Air, Inc.

(9th Cir. 2002) 281 F.3d 1054, 1065, in which the Ninth Circuit explained that "in some

cases, causation can be inferred from timing alone where an adverse employment action

follows on the heels of protected activity" but that "timing alone will not show causation

in all cases; rather, 'in order to support an inference of retaliatory motive, the termination

must have occurred "fairly soon after the employee's protected expression." ' " (Ibid.,

italics added.)

       This argument is misplaced because, according to the trial court's own explanation

of its findings, it did not infer a causal connection between Young's report of harassment

and Young's removal from the principal position based solely on the timing of those

events. Instead — as we have explained — the causation finding is supported primarily

by the trial court's determination — based on evidence in the record — that Van Zant's


                                              14
reasons for criticizing Young's job performance were not credible and that Van Zant and

Northcote had a relationship with Judd, raising a motive for retaliation. Contrary to

MEUSD's suggestion, this is not a case in which an inference of causation was based on

"timing alone." Accordingly, in order to establish causation, Young was not required to

show that there was a short time frame between her report of harassment and the adverse

employment action by MEUSD.

       Further, although a "long period between an employer's adverse employment

action and the employee's earlier protected activity may lead to the inference that the two

events are not causally connected," "if between these events the employer engages in a

pattern of conduct consistent with a retaliatory intent, a causal connection" may exist.

(Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421,

citation omitted (Wysinger).) Here, although it was not until March 2009 that Van Zandt

gave official notice to Young of the possible reassignment to the classroom (and not until

May 2009 that a final decision on the reassignment was made), the evidence supports a

finding that Van Zant started criticizing Young's performance and laying the groundwork

for the adverse employment action as soon as he became superintendent in July 2008.7

That date was only a few months after Young reported the harassment. Viewed in that

light, the lapse of time between Young's report of harassment in late 2007 and her




7       Indeed, Van Zant admitted in his testimony that in October or November 2008 he
first had the thought that Young should be removed from her position of principal.

                                             15
removal as principal in mid-2009 does not undermine the reasonableness of the trial

court's finding that Young's demotion was caused, at least in part, by retaliation. 8

       Next, MEUSD argues that the trial court's finding of causation was not supported

by substantial evidence because MEUSD "offered evidence of a legitimate,

nondiscriminatory reason for the termination." MEUSD contends that the evidence

showed that, for several reasons, ". . . Van Zant did not feel that Young was the best

person for the job, and he recommended her reassignment to the Board."

       As an initial matter, we note that in MEUSD's discussion of whether it offered

evidence of a legitimate nondiscriminatory reason for its demotion of Young, it has

confused the legal standards applicable to a summary judgment motion in a FEHA case

with the legal standards applicable in our review of findings following a trial. In support

of its appellate argument, MEUSD improperly refers to the burden shifting analytical

structure intended for use in ruling on summary judgment motions in employment

discrimination actions, described by the United States Supreme Court in McDonnell


8       MEUSD argues that we should not view Van Zant's earlier criticism of Young as
motivated by retaliation because Young did not complain to an administrator or school
board member of retaliation during that time. MEUSD's argument is not persuasive.
Young testified that she perceived Van Zant's criticism as retaliatory from the beginning,
and she submitted evidence supporting an inference that certain of Van Zant's early
criticisms of her — including his comments about graduation and management of
football games — were questionable. Regardless of whether Young complained to
someone in authority about her early suspicion of Van Zant's retaliatory motive, a
reasonable trier of fact could still infer that Van Zant had started laying the groundwork
for a retaliatory action as soon as he assumed the position of superintendent. Moreover,
Young testified that when it became clear — through Van Zant's notification — that
Van Zant was intending to remove her from her position, she expressed her suspicion of
retaliation to school board members.

                                             16
Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) and our Supreme

Court in Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355. Under that approach,

the employee raises a presumption of discrimination by presenting a prima facie case,

which the employer may dispel by articulating a legitimate, nondiscriminatory reason for

the challenged action. (Guz, at p. 355.)

       As Young correctly points out, the burden shifting framework has no application

here, where the case has proceeded to trial. When "the case is submitted to the trier of

fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the fact

finder will have only to decide the ultimate issue of whether the employer's

discriminatory intent was a motivating factor in the adverse employment decision."

(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205.) Thus, our

analysis does not turn on whether or not MEUSD has articulated a legitimate reason for

removing Young as principal.

       Instead, we focus on whether — despite evidence of legitimate reasons for

Young's reassignment — any substantial evidence supports a finding that those legitimate

reasons are pretextual and that Young's demotion was in fact motivated by retaliation for

her reporting of Judd's harassment. Here, as we have explained, substantial evidence

supports the trial court's determination that although MEUSD did put forth several

reasons that it claimed to be the legitimate bases for removing Young from her position,

those reasons were pretextual and the adverse employment action was, at least in part,

based on retaliation. At trial, it is not enough for MEUSD to identify legitimate reasons

for removing Young and to offer some supporting evidence; in order to support a

                                            17
judgment for MEUSD, the finder of fact has to believe those reasons. Here, the record

sufficiently supports the trial court's finding that MEUSD's reasons for Young's

reassignment were not credible.9

       Finally, MEUSD argues that the evidence is insufficient to show that Young's

removal as principal was caused by retaliation because it is the school board that made

the ultimate decision whether to remove Young. MEUSD argues that the record contains

no evidence of animus on the part of the school board, and that ". . . Young ultimately

was required to prove that the Board as a whole was retaliating for her sexual harassment

report." This argument fails because "the plaintiff can establish the element of causation

by showing that any of the persons involved in bringing about the adverse action held the

requisite animus, provided that such person's animus operated as a 'but-for' cause, i.e., a

force without which the adverse action would not have happened." (Reeves v. Safeway

Stores, Inc. (2004) 121 Cal.App.4th 95, 108.) Here, the evidence is undisputed that the

school board voted to remove Young from the position of principal because of Van Zant's



9       MEUSD relies on Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367 to argue that the evidence was insufficient to support a finding that
retaliation was one of the motives for Van Zant's removal of her from the principal
position. Jones is inapposite. It concerns the issue of whether, in opposing a summary
judgment motion, the plaintiff submitted sufficient evidence to create an inference that
the harassment she experienced was based on her gender or race. Jones concluded that
plaintiff had not submitted sufficient evidence to support such an inference, especially in
light of the fact that she stated during her deposition testimony that she did not know
whether specific incidents were prompted by her gender or race. (Id. at pp. 1378-1379.)
This is not a harassment case; this appeal does not arise in the context of a summary
judgment motion, and Young never expressed any uncertainty as to Van Zant's
motivation.

                                             18
recommendation as superintendent of MEUSD. Thus, regardless of whether any of the

school board members were motivated by retaliatory animus, the inference that Van Zant

acted to retaliate against Young is sufficient to support the trial court's finding of

retaliation against MEUSD.

       In sum, we conclude that substantial evidence supports the trial court's finding of

unlawful retaliation against MEUSD.

B.     The Trial Court Did Not Abuse Its Discretion in Determining the Amount of
       Attorney Fees Awarded to Young

       Next, we address MEUSD's challenge to the trial court's award of $439,645 in

attorney fees to Young. Although MEUSD does not take issue with the principle that

Young was statutorily eligible for an award of reasonable attorney fees as a prevailing

plaintiff in a lawsuit brought under FEHA (§ 12965, subd. (b)), and does not challenge

the number of hours that Young's attorney, David Miller, devoted to this litigation, it

argues that the amount of the award was too high. Specifically, MEUSD contends that

(1) the trial court should not have concluded that $475 was a reasonable hourly rate for

Miller, and (2) the trial court should not have applied a 1.6 multiplier in setting the

amount of the fee award. MEUSD contends that the amount of the award "shocks the

conscience."

       We apply an abuse of discretion standard in reviewing the trial court's award of

attorney fees. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440,

445 (Vo).) "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


                                              19
will not be disturbed unless the appellate court is convinced that it is clearly wrong.' "

(Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano).)

       "The determination for fees under section 12965 must be based upon a proper

utilization of the lodestar method. [Citations.] In California, the lodestar method

requires the trial court to first determine a touchstone or lodestar figure based on a careful

compilation of the time spent and reasonable hourly compensation for each attorney.

[Citations.] The trial court may then augment or diminish the touchstone figure by taking

various relevant factors into account. [Citations.] In Serrano . . . , supra, 20 Cal.3d at

page 49, the California Supreme Court identified the relevant factors in that case as

follows: 'Among these factors were: (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, both from the point of view of eventual victory on the merits and the point

of view of establishing eligibility for an award; (4) the fact that an award against the state

would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question

received public and charitable funding for the purpose of bring[ing] law suits of the

character here involved; (6) the fact that the monies awarded would inure not to the

individual benefit of the attorneys involved but the organizations by which they are

employed; and (7) the fact that in the court's view the two law firms involved had

approximately an equal share in the success of the litigation.' (Fn. omitted.)" (Vo, supra,

79 Cal.App.4th at pp. 445-446, capitalization altered.)



                                              20
       Here, the trial court determined that $475 was a reasonable hourly fee based on

evidence in the record. Young's motion for attorney fees was supported by Miller's own

declaration, which described his extensive experience and stated that his hourly rate was

$475 per hour, which he had been awarded in a similar FEHA case. Further, the motion

was supported by the declaration of three other attorneys who handle similar cases, all of

whom stated that a rate of $475 per hour was reasonable and commensurate with fees

charged by other lawyers of similar skill and expertise.10

       MEUSD argues that the trial court should have relied on the evidence that

MEUSD filed in opposition to the fee motion, which were declarations submitted by

attorneys in different employment law matters in 2009, 2010 and 2011. Those

declarations set forth the attorneys' hourly rates in those cases, which ranged from $305

to $325. One declaration — filed in an employment case in 2009 — opined that it is

customary to award $350 per hour or more throughout California in such matters.

       We conclude that MEUSD's challenge to the trial court's selection of $475 as a

reasonable hourly rate is without merit. "The amount of fees is within the sound

discretion of the trial court and the trial judge is in the best position to evaluate the

quality of legal services at trial." (Wysinger, supra, 157 Cal.App.4th at p. 430.)

Although the trial court would have been within its discretion to credit MEUSD's


10     Despite MEUSD's attempts to discredit the declarations by pointing out that they
do not contain certain information, such as the rate charged by the declarants, the trial
court was within its discretion to credit the declarants' statements that — based on their
knowledge and expertise — the hourly rate of $475 was reasonable and customary for
Miller to charge in this litigation.

                                               21
evidence and arrive at a different conclusion, it certainly was not required to do so. Here,

the trial court reasonably relied on the evidence submitted by Young, as well as its own

experience in the litigation, to decide that "the skills, training, experience and expertise

reflected by Mr. Miller" supported an award of $475 per hour as a reasonable attorney

fee.

       We also reject MEUSD's argument that the trial court erred in applying a

multiplier. As we have explained, our Supreme Court has identified a number of

different factors that can enter into a decision to apply a multiplier to a lodestar

calculation. (Serrano, supra, 20 Cal.3d at p. 49.)

       Here, the trial court expressly identified the following three factors: "(1) the

contingent nature of the representation; (2) the risk involved in taking this litigation;

[and] (3) the policy behind the litigation and the need for the public entity to have a

policy regarding sexual harassment and retaliation" as supporting the application of a

multiplier. Those factors are pertinent here, as Miller's representation of Young involved

risk, was contingent and the evidence showed that MEUSD did not have a policy against

retaliation.

       MEUSD suggests that a more appropriate multiplier would have been 1.25 rather

than 1.6, citing Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567,

627, which approved a 1.25 multiplier in a sexual orientation harassment case brought by

students against a school district. However, each litigation is different, and the trial court

was not " 'clearly wrong' " (Serrano, supra, 20 Cal.3d at p. 49) to conclude that 1.6 rather

than 1.25 was an appropriate multiplier to compensate counsel for the successful

                                              22
representation of Young in this action, as it identified three pertinent reasons for applying

the multiplier, and because " '[t]he value of legal services performed in a case is a matter

in which the trial court has its own expertise.' " (PLCM Group, Inc. v. Drexler (2000) 22

Cal.4th 1084, 1096.)11 In sum, the trial court's award of attorney fees does not "shock

the conscience" as MEUSD contends. Instead, it was properly based on a reasonable

analysis under the applicable lodestar method.

C.     The Trial Court Erred in Setting the Annual Postjudgment Interest Rate at
       10 Percent

       In a footnote appearing in the opening brief's review of the procedural history,

MEUSD states although the judgment awards postjudgment interest at the rate of

10 percent per annum, it should have been at the rate of 7 percent because MEUSD is a

public entity. MEUSD states that it "seeks a correction to this rate in the event that the

judgment is affirmed." Although MEUSD does not raise this issue in the argument

portion of its brief, we will exercise our discretion to address it as an issue within the

scope of this appeal, as Young has had an opportunity to respond.

       Here, the judgment's award of postjudgment interest to Young at the rate of

10 percent per annum was likely arrived at by applying Code of Civil Procedure section



11      MEUSD argues that if the trial court was attempting to apply a multiplier that
would provide interest to Miller for the delay in payment caused by the fact that he was
performing work under a contingency agreement, it would have been appropriate for the
trial court to select a lower multiplier to approximate a customary interest rate. We reject
this argument because there is no indication in the record that the trial court was
attempting to award interest. Instead, as we have explained, the trial court set forth three
factors that it found supported the application of a multiplier, none of which expressly
concerned the awarding of interest.
                                              23
685.010, subdivision (a), which states that "[i]nterest accrues at the rate of 10 percent per

annum on the principal amount of a money judgment remaining unsatisfied." (Ibid.)

However, our Supreme Court has determined that this statutory provision is not

applicable when a local public entity is a defendant in a litigation because section 970.1,

subdivision (b) "plainly and expressly exempts local public entities from the application

of title 9 of the Code of Civil Procedure as a whole, including . . . section 685.010."

(California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342,

347.) Thus, in the case of local public entities, article XV, section 1, of the California

Constitution applies, which states: "In the absence of the setting of such rate by the

Legislature, the rate of interest on any judgment rendered in any court of the state shall be

7 percent per annum." As the Legislature has not specifically provided for a different

rate for postjudgment interest against a public entity, "the applicable rate of postjudgment

interest to be paid by local public entities is 7 percent per annum." (California Fed., at

p. 345.)

       As a school district, MEUSD is a local public entity. (§ 970, subd. (c).)

Accordingly, postjudgment interest should have been awarded at the annual rate of

7 percent instead of 10 percent. We will modify the judgment accordingly.




                                             24
                                    DISPOSITION

      The judgment is modified to award postjudgment interest at the rate of 7 percent

per annum. As modified, the judgment is affirmed. Young is to recover her costs.



                                                                              IRION, J.

WE CONCUR:



            BENKE, Acting P. J.



                 MCDONALD, J.




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