Noe Abarca worked for Citizens of Humanity in their quality control department, inspecting boxes of jeans. He suffered an an industrial injury with a work restriction. After the work restriction expired, Citizens fired Abarca.
Abarca sued Citizens and prevailed on his claims for retaliation, disability discrimination, failure to prevent discrimination and retaliation under the Fair Employment and Housing Act (FEHA), and wrongful termination.
The jury found that, while Citizens had other nondiscriminatory reasons for terminating Abarca, its ultimate decision to fire him was based on discrimination and constituted conduct that was malicious, oppressive, or fraudulent.
The jury awarded Abarca $100,000 in compensatory damages: $35,000 for past lost earnings; $20,000 in other past economic loss; $45,000 in past noneconomic loss including mental suffering; and nothing for future noneconomic loss. The jury also awarded Abarca $550,000 in punitive damages.
Abarca’s attorneys represented him on a contingency basis, with no retainer. Abarca moved for an award of attorney fees in the amount of $1,652,255, plus a multiplier of 2.0, for a total of $3,304,510 under Government Code section 12965, subdivision (b).
The trial court awarded Abarca attorney fees in the sum of $1,084,160 pursuant to Code of Civil Procedure sections 1032 and 1033.5 and Government Code section 12965, subdivision (b).
The trial court did not reduce the number of hours billed, finding them reasonable and noting that “[t]his case was litigated to the hilt. Defendant litigated every possible issue, in this court’s opinion, at times, excessively. If the number of hours here is exceptional, that is the reason why. An exceptional number of hours is required to overcome an exceptionally tenacious defense.”
The trial court did, however, find Abarca’s attorneys’ hourly rates excessive, reducing the hourly rates of three attorneys from $700 to $450, another’s rate from $700 to $500, an associate’s rate from $350 to $300, and the rate of two paralegals from $200 to $125. The trial court also denied Abarca’s request for a multiplier.
With the exception of clerical mathematical errors, the Court of Appeal affirmed the award of fees and costs in the unpublished case of Abarca v Citizens United.
A laundry list of errors were asserted by Citizens, and the discussion in the Opinion is an excellent treatise on the award of fees and costs in FEHA litigation. It concluded that “It is disingenuous to engage in aggressive litigation tactics and then complain about the fees those tactics generated from the opposing side.”