Steve Snoeck sued ExakTime Innovations Inc., for six claims: five claims under the FEHA – failure reasonably to accommodate a known or perceived disability, failure to engage in a good faith interactive process, disability discrimination, failure to prevent discrimination and retaliation, and retaliation – and a claim for wrongful termination in violation of public policy.
In June 2019, a jury returned a verdict in Snoeck’s favor on his claim for failure to engage in a good faith interactive process and found in favor of ExakTime on Snoeck’s five other claims. The jury awarded Snoeck $58,088 in economic damages and $72,000 in non-economic damages, for a total of $130,088.
Snoeck then filed a motion for attorney fees under Government Code section 12965, former subdivision (b), now subdivision (c)(6), as the prevailing plaintiff on a FEHA claim. He asked for the lodestar amount of $1,193,870 plus a 1.75 multiplier for a total of $2,089,272.50.
After several additions and reductions to the requested fee, the court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.” His attorney, Perry Smith, was ultimately awarded $686,795.62 in attorney fees.
Snoeck appealed the reduction in fees for “incivility” of his attorney, however the Court of Appeal affirmed the trial court’s reduction of fees in the published case of Snoeck v. ExakTime Innovations -B321566 (October 2023).
Snoeck contends the $457,863 reduction in attorney fees based on his counsel Perry Smith’s incivility must be reversed for several reasons. In essence, he argues that – because the fee reduction was not associated with any costs – the court impermissibly applied it to punish Smith and had no legal authority to shift attorney fees to defendant as a sanction.
The Court of Appeal reviewed a number of examples of the behavior in question. The trial court record, for example. noted that Smith’s “incivility was not only directed to opposing counsel; it was also directed to the Court.” The court remarked that, in its October 8, 2019 minute order, more than two years ago, it had stated, “Plaintiff’s counsel’s tone of voice (which was not reflected in the Court Reporter’s record) was both belittling and antagonistic; at times it verged on the contemptuous.”
The trial court record continued, “The language quoted above is uncalled-for and unacceptable. Plaintiff counsel’s ad hominem attacks were unnecessary for the zealous representation of his client.” Citing caselaw, the court noted the absence of civility “heightens stress and debases the legal profession,” and reminded Smith that the California Rules of Court, rule 9.7 requires the attorney oath to conclude with, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”
Thus, the Court of Appeal concluded “Substantial evidence supports the trial court’s finding that Smith was uncivil toward opposing counsel and the court, and his ‘ad hominem attacks were unnecessary for the zealous representation of his client.’ “
In order to calculate an attorney fee award under the FEHA, courts generally use the well-established lodestar method, the product of the number of hours spent on the case, times an applicable hourly rate. The trial court then has the discretion to increase or reduce the lodestar figure by applying a positive or negative multiplier based on a variety of factors. Those factors include, among others, the novelty and difficulty of the issues presented, the skill demonstrated in litigating them, and the contingent nature of the fee award.
In Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734 ,a trial court limited prevailing plaintiffs’ recovery of statutory attorney fees to about one third of the lodestar amount they had requested, after it found the requested fees were unreasonable – in part due to counsel’s overlitigation of the matter and lack of civility in plaintiffs’ briefing. The Court of Appeal in this case thus agreed that “a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees.
The Court of Appeal concluded that the “record before us amply supports the trial court’s finding that plaintiff’s counsel was repeatedly, and apparently intentionally, uncivil to defense counsel – and to the court – throughout this litigation. We thus find no abuse of discretion and affirm.”