Filed 4/5/16 Williams v. Los Angeles County Metropolitan Transp. Authority CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


ROBERT WILLIAMS,                                                     B259327

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC467568)
         v.

LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Holly E. Kendig, Judge. Affirmed.
         Schuler & Brown, Jack M. Schuler, Tina Javaherian; Greines, Martin, Stein &
Richland, Martin Stein, Alison Turner and Carolyn Oill for Defendant and Appellant.
         The Mirroknian Law Firm, Reza Mirroknian and Peter A. Javanmardi for Plaintiff
and Respondent.
                                ___________________________________
                                    INTRODUCTION
       Defendant and appellant the Los Angeles County Metropolitan Transportation
Authority (MTA) appeals from an order awarding attorney fees to plaintiff and
respondent Robert Williams, who prevailed in his disability discrimination-related
lawsuit under California’s Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.). In awarding fees to Williams, the trial court calculated a lodestar figure
and applied a 1.5 multiplier. The MTA contends on appeal that the court abused its
discretion by applying the multiplier. We reject the contention and affirm the order.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Williams began working as a MTA bus operator in 1997. After Williams became
disabled, the MTA fired him. Williams sued the MTA under the FEHA. A jury found in
Williams’s favor on his causes of action for disability discrimination, failure to provide
reasonable accommodation, and failure to engage in a timely and good faith interactive
process but against Williams on his retaliation cause of action. The jury awarded
$498,098.08 in damages to Williams.1
       Reza Mirroknian and Pedram Javanmardi represented Williams in that action on a
full contingency basis, with no retainer or costs paid by Williams. Williams moved for
attorney fees. Mirroknian requested a $600 hourly rate and Javanmardi requested a $325-
to-$425 hourly rate. Labor and employment attorneys submitted declarations stating that
these hourly rates were within the range of what Los Angeles attorneys in that practice
area charge. Counsel also requested a multiplier of 2, based on the complexity of the
issues, the risk in pursuing a contingency case, and the loss of other business.
       The trial judge, who had presided over the entire case, including the almost two-
week jury trial, granted attorney fees and applied a 1.5 multiplier. With respect to the
lodestar, the court accepted Mirroknian’s $600 hourly rate, “in light of his 17 years of
experience and ultimately, the skill he employed in representing his client in this

1
      The MTA separately appealed from that judgment. (Williams v. Los Angeles
County Metropolitan Transportation Authority, B254997.)

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employment case.” The court similarly approved Javanmardi’s rate in “light of [his]
6 years of experience . . . and the skill [he] employed in representing his client.” The
court approved the time spent on the case, 1,903.2 hours. The lodestar therefore was
$764,105.
       The trial court also found that a multiplier was “appropriate,” because in “this
case, the issues were more difficult and complex than those in a typical FEHA litigation.
Defendant MTA used worker’s compensation terminology as an excuse for failing to
accommodate the plaintiff under FEHA. Plaintiff’s counsel was therefore required to
distinguish for the jury workers’ compensation issues from the legal obligations based on
FEHA, and plaintiff’s counsel showed considerable skill in doing so.” The court also
found that there “was a significant contingent risk involved.” The delays caused by the
MTA in getting the case to trial and “litigation posture increased the length and intensity
of the litigation and the attorneys’ fees, and also caused plaintiff’s attorneys to forego
other employment opportunities, particularly given the small size of the law firm with
only two attorneys.” The court acknowledged “the quality of the representation provided
by plaintiff’s counsel, the difficulty of separating worker’s compensation terminology
and issues from FEHA issues, as well as the results obtained by plaintiff’s counsel.
Indeed, the result was exceptional in light of the defendant’s approach to the litigation.”
The court therefore found that a 1.5, rather than the multiplier of 2 plaintiff requested,
was appropriate.
       Applying the multiplier to the lodestar yielded $1,146,157.50 in attorney fees.
When fees for the attorney fees motion and costs were added, the total attorney fees
award was $1,163,977.50.
       This timely appeal followed.
                                       DISCUSSION
       “The basic, underlying purpose of FEHA is to safeguard the right of Californians
to seek, obtain, and hold employment without experiencing discrimination on account” of
their membership in a protected class. (Flannery v. Prentice (2001) 26 Cal.4th 572, 582-

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583.) To further this purpose, the FEHA provides for an award of reasonable attorney
fees. (Ibid.) FEHA thus provides, “[i]n civil actions brought under this section, the
court, in its discretion, may award to the prevailing party, . . . reasonable attorney’s fees
and costs . . . .” (Gov. Code, § 12965, subd. (b).) To determine the fee award, the trial
court first determines the lodestar, i.e., the number of hours worked multiplied by a
reasonable hourly fee. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th
1228, 1249.) The court then has discretion to increase the lodestar by applying a
multiplier or enhancement. (Ibid.; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th
1128, 1171.)
       We review a trial court’s attorney fees award for abuse of discretion, and we
presume that the court considered all appropriate factors in selecting and applying a
multiplier. (Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th at pp. 1249-
1250.) “ ‘The “experienced trial judge is the best judge of the value of professional
services rendered in his [or her] court, and while his [or her] judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is
clearly wrong”—meaning that it abused its discretion. [Citations.]’ ” (PLCM Group,
Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
       Here, the MTA does not challenge the lodestar. The MTA challenges the
1.5 multiplier, arguing that the trial court abused its discretion by using the same factors
to calculate the lodestar and to impose the multiplier. The lodestar is “the basic fee for
comparable legal services in the community.” (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132 (Ketchum).) The lodestar “may be adjusted by the court based on factors
including, as relevant herein, (1) the novelty and difficulty of the questions involved,
(2) the skill displayed in presenting them, (3) the extent to which the nature of the
litigation precluded other employment by the attorneys, (4) the contingent nature of the
fee award.” (Ibid.) When considering these factors, a trial court should “also consider
the degree to which the relevant market” rate already compensates for them. (Id. at
p. 1138.) In other words, “when determining the appropriate enhancement, a trial court

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should not consider these factors to the extent they are already encompassed within the
lodestar.” (Ibid.) There should be no “double counting.” (Ibid.; accord, Flannery v.
California Highway Patrol (1998) 61 Cal.App.4th 629, 647 [“Whether an award is
justified and what amount that award should be are two distinct questions, and the factors
relating to each must not be intertwined or merged.”].)
       The “factor of extraordinary skill, in particular, appears susceptible to improper
double counting.” (Ketchum, supra, 24 Cal.4th at p. 1138.) “Thus, a trial court should
award a multiplier for exceptional representation only when the quality of representation
far exceeds the quality of representation that would have been provided by an attorney of
comparable skill and experience billing at the hourly rate used in the lodestar
calculation.” (Id. at p. 1139.) Such exceptional quality of representation is exactly what
the trial court here, in its discretion, found Mirroknian exhibited. The court noted that the
issues in this case were “more difficult and complex” than in typical FEHA litigation,
because the MTA used worker’s compensation terminology to excuse compliance with
FEHA. In “distinguish[ing] for the jury workers’ compensation issues from the legal
obligations based on FEHA,” “plaintiff’s counsel showed considerable skill.” (Italics
added.) By this, the court was clearly indicating that Mirroknian exhibited skill beyond
that of an attorney with comparable skill and experience, billing at the lodestar hourly
rate. That the court, in setting the lodestar, took general note of counsel’s “skill” and
experience, does not show there was “double counting.” Rather, in setting the lodestar,
the court simply adopted an hourly rate commensurate with other experienced attorneys
in the community.
       The MTA also takes issue with the trial court’s characterization of this case as
“more difficult and complex than those in a typical FEHA litigation.” But the
relationship between worker’s compensation law and the FEHA and how it would be
presented to the jury was discussed at length during pretrial conferences. The
relationship between those laws, and, in particular, the meaning of “temporarily totally
disabled” was also an issue at trial particularly during Jackie Anderson’s and Emily

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Matias’s testimonies. We therefore see no abuse of discretion with this experienced
court’s finding that the complexity of this case exceeded that of the typical FEHA
litigation.
       The MTA next argues that the contingent risk could not support the multiplier.
The MTA relies on Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at page 1175,
which found in a FEHA case, that where there is a reasonable expectation of statutory
attorney fees, the contingent nature of the litigation was an insufficient risk to justify a
multiplier. Weeks, however, predated Ketchum. In Ketchum, our Supreme Court made
clear that the contingent nature of a fee award is a proper factor to consider in awarding
an enhancement. (Ketchum, supra, 24 Cal.4th at pp. 1132-1133; see also Bernardi v.
County of Monterey (2008) 167 Cal.App.4th 1379, 1399 [enhancement to reflect
contingency risk is one of the most common fee enhancers]; Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th 359, 394-395, 399.) The
economic rationale for a fee enhancement in contingency cases is it “ ‘compensates the
lawyer not only for the legal services he renders but for the loan of those services. The
implicit interest rate on such a loan is higher because the risk of default (the loss of the
case, which cancels the debt of the client to the lawyer) is much higher than that of
conventional loans.’ [Citation.] ‘A lawyer who both bears the risk of not being paid and
provides legal services is not receiving the fair market value of his work if he is paid only
for the second of these functions. If he is paid no more, competent counsel will be
reluctant to accept fee award cases.’ ” (Ketchum, at pp. 1132-1133; accord, Horsford, at
pp. 399-400.)
       The trial court thus found that there “was a significant contingent risk involved.”
Mirroknian took the case on a full contingency basis, with no retainer or costs paid by
plaintiff. The contingency agreement provided no compensation in the event the MTA
prevailed. Under Ketchum, therefore, the trial court did not abuse its discretion by taking
into account the contingent risk.



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       Finally, we disagree that the trial court’s “primary motivation” was to “punish” the
MTA for its “ ‘scorched earth’ ” tactics. In referring to the MTA’s litigation tactics, the
court was merely pointing out that the MTA could hardly complain about the number of
hours plaintiff’s counsel billed when the MTA’s litigation tactics necessitated that
amount of work.
                                      DISPOSITION
       The order is affirmed. Plaintiff and respondent is to recover his costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  ALDRICH, J.




We concur:




              EDMON, P. J.




              HOGUE, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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