The opinion
Filed 11/7/24; Certified for Publication 12/5/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ASHLEY HOWELL,
Plaintiff and Appellant,
v. A168526, A169105
STATE DEPARTMENT OF STATE
HOSPITALS, (Napa County Super. Ct.
No. 20CV000794)
Defendant and Respondent.
“After three years of litigation and a two-week trial,” a jury found
plaintiff Ashley Howell had been discriminated against by her former
employer, Department of State Hospitals (DSH). The jury awarded Howell
$36,751.25 in lost earnings and health insurance benefits but nothing for
pain and suffering. After trial, the court denied Howell’s motion for a limited
new trial regarding non-economic damages and granted DSH’s motion for
judgment notwithstanding the verdict, striking the award for lost health
insurance benefits. As the prevailing party, Howell sought $1.75 million in
attorney fees, costs, and prejudgment interest; the court awarded $135,102
“in fees and costs” but did not rule on her uncontested request for
prejudgment interest. Accordingly, we remand for the court to address
Howell’s request for prejudgment interest. In all other aspects, we affirm.
1
BACKGROUND
Howell worked for DSH as a temporary pre-licensed psychiatric
technician between January 2, 2020 and January 24, 2020.1
DSH houses patients who are involuntarily committed to medical
treatment, including criminal defendants deemed incompetent to stand trial,
patients found not guilty by reason of insanity, and offenders with mental
disorders, among others. Pre-licensed psychiatric technicians provide
nursing and psychiatric care to DSH’s disabled patients and have physical job
duties like crisis intervention and restraining patients who pose a risk to
themselves or others.
“As part of the hiring process,” Howell underwent a pre-employment
health screening, which required Howell to disclose, among other things,
“[a]ny disorders of the nervous system,” any “[l]ung or respiratory trouble,”
and any “[s]hortness of breath.” Although Howell disclosed having asthma,
she responded “no” to all other screening questions.
However, Howell had been previously diagnosed with major depressive
disorder and posttraumatic stress disorder following a 2017 sexual assault by
a patient inmate at a California Department of Corrections and
Rehabilitation (CDCR) hospital in Stockton, where Howell then worked as a
certified nursing assistant. After the assault, Howell experienced panic
attacks with trouble breathing and shortness of breath and went on medical
leave.2
On January 2, when Howell commenced working with DSH, she was
still on medical leave with CDCR. In fact, on January 3, Howell submitted a
1 All unspecified dates occurred in 2020.
2 Howell filed a workers’ compensation claim in connection with the
assault; over the next few years, she received counseling and treatment.
2
doctor’s note to CDCR stating that she could not return to work before
February 23, and that she was unable to work with prison inmates.
DSH was not aware of Howell’s leave status until on or about January
22, when CDCR informed DSH of the same as part of their regular
communication exchange concerning employment transfers. In a subsequent
records search, DSH discovered that Howell had sustained an injury to her
“nervous system,” the description of which was inconsistent with Howell’s
representations on her DSH health questionnaire. On January 24, DSH
therefore terminated Howell’s employment.3
Howell filed this lawsuit against DSH, asserting claims under the Fair
Employment and Housing Act (Gov. Code, § 12940, et seq.; FEHA) for mental
disability discrimination and physical disability discrimination, as well as
claims for failure to accommodate, failure to engage in interactive process,
and failure to prevent discrimination. The court granted summary judgment
in favor of DSH on Howell’s claims for failure to accommodate and failure to
engage in interactive process; Howell dismissed her claim for failure to
prevent discrimination on the first day of trial. Howell’s remaining claims for
mental and physical disability discrimination were tried to a jury, which
found in Howell’s favor on her mental disability discrimination claim only,
awarding $28,941 in lost earnings, $7,810.25 in lost health insurance, and
nothing for pain and suffering.
The parties filed competing posttrial motions. Howell moved for a
limited new trial on noneconomic damages only or, alternatively, a
conditional award of $70,000, which the court denied, and DSH moved for
judgment notwithstanding the verdict, which the court granted, striking the
3 DSH represents it formally terminated Howell “without fault to
minimize any negative impact to her state service career.”
3
award for lost health insurance because Howell had failed to present
evidence of out-of-pocket expenses caused by the loss.4 As the prevailing
party, Howell also sought over $1.75 million in attorney fees, costs, and
prejudgment interest. The court awarded $135,102.
Howell appeals from judgment and the posttrial orders.
DISCUSSION
Howell asserts the trial court erred by (1) denying Howell’s new trial
motion on noneconomic damages, (2) striking the award of lost health
insurance benefits, and (3) granting only part of Howell’s motion for attorney
fees, costs, and interest.
I. Howell’s Motion for New Trial
Howell asserts that the trial court’s denial of her new trial motion was
an abuse of discretion because the noneconomic damage award of zero ($0) is
inadequate as a matter of law and not supported by the evidence.
As “a general matter, orders granting a new trial are examined for
abuse of discretion.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
859, citing cases.) However, because an order denying a new trial is not
independently appealable, it is reviewed as part of the underlying judgment.
(Code Civ. Proc., § 904.1, subd. (a)(2); Walker v. Los Angeles County Metro.
Tansp. Authority (2005) 35 Cal.4th 15, 18.)5 Thus, we “review ‘the entire
record, including the evidence, so as to make an independent determination
whether the error was prejudicial.’ ” (Hasson v. Ford Motor Co. (1982) 32
Cal.3d 388, 417, fn. 10, citing authority.)
4 DSH also moved for a new trial regarding the lost health insurance
award, which the court considered “moot” in light of its ruling on DSH’s
motion for judgment notwithstanding the verdict.
5 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
4
Where a party claims inadequate damages or insufficient evidence,
a “new trial shall not be granted . . . , unless after weighing the evidence the
court is convinced from the entire record, including reasonable inferences
therefrom, that the court or jury clearly should have reached a different
verdict or decision.”6 (§ 657, italics added.) “A trial court has broad
discretion in ruling on a new trial motion, and the court’s exercise of
discretion is accorded great deference on appeal.” (Fassberg Construction Co.
v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752,
citing City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872.)
“Accordingly, we can reverse the denial of a new trial motion based on
insufficiency of the evidence or [inadequate] damages only if there is no
substantial conflict in the evidence and the evidence compels the conclusion
that the motion should have been granted.” (Fassberg, at p. 152.)
A. Relevant Facts
At trial, Howell sought noneconomic damages for approximately 16
months from January 24, 2020, through May 17, 2021, when Howell obtained
new employment. Five witnesses testified regarding Howell’s alleged
noneconomic damages: Howell, Howell’s fiancé, Howell’s treating
psychologist Dr. Sherri Holt, Howell’s qualified medical evaluator Dr. Corey
Hahn, and DSH’s expert psychologist Dr. Paul Berg.7
6 If a court grants a new trial solely on the issue of damages, it may
“issue a conditional order granting the new trial unless the party against
whom the verdict has been rendered consents to the addition of damages in
an amount the court in its independent judgment determines from the
evidence to be fair and reasonable.” (§ 662.5, subd. (a)(1).)
7 Doctors Holt and Hahn also offered documentary evidence in the form
of medical records.
5
Howell described the termination as devastating and that it “felt like
[she] was being punished because [she] was sexually assaulted.” Howell
experienced depression after the termination, which worried her fiancé.
Howell’s fiancé testified that she went back into “a state of depression. She
was very upset and she was afraid that the [sexual assault] incident would
never be put behind her.” Howell became “closed off again,” which impacted
their relationship, and it took Howell “about a year and a half” to find new
employment.
From 2018 through 2021, Howell sought therapy from Sunrise
Counseling Group and Dr. Holt. According to Dr. Holt, the termination was
detrimental to Howell’s mental health and caused loss of confidence and self-
esteem. Dr. Holt testified that Howell “seemed to regress” after termination,
and “her symptoms” from the 2017 assault “came back.”
Dr. Hahn evaluated Howell four times between 2017 and 2020,
including a 2017 qualified medical evaluation in connection with Howell’s
workers’ compensation claim stemming from the assault. In connection with
a February 2020 examination following Howell’s termination, Dr. Hahn
reported that Howell “presented essentially the best [he] had ever seen her.”
Howell “appeared well rested, brighter in her affect and presentation,
engaged and, you know, in a good mood.” Dr. Hahn opined that Howell had
achieved “permanent and stationary status,” meaning “[m]aximum medical
improvement,” and that “there is no further treatment likely to result in any
substantial further improvement.”
Called to testify by DSH, Dr. Berg concluded that Howell’s sexual
assault was a “major” source of Howell’s depression. While Howell’s
termination “bothered her,” and she exhibited symptoms of depression
6
following her termination, Dr. Berg explained that “a lot of things bother a lot
of people. Being bothered is not the same as having a mental disorder.”
In closing argument, Howell’s counsel suggested the jury award
between $50,000 and $150,000 for “mental suffering and emotional distress”
and between $150,000 and $450,000 for “loss of enjoyment of life and grief”
and “humiliation, depression, and anxiety.”
B. Analysis
Based on an independent review of the evidence, we find no reason to
disturb the jury’s verdict with respect to noneconomic damages.
First, the verdict is not inadequate as a matter of law. In asserting
otherwise, Howell relies upon two inapposite cases. In Dodson v. J. Pacific,
Inc. (2007) 154 Cal.App.4th 931, 933, 934, the plaintiff tripped and fell,
suffering physical injury that required surgery. Focusing on plaintiff’s
physical injury, the court held that, after a negligence finding, the jury’s
“failure to award any damages for pain and suffering results in a damage
award that is inadequate as a matter of law” because a “plaintiff who is
subjected to a serious surgical procedure must necessarily have endured at
least some pain and suffering in connection with the surgery.” (Id. at
pp. 933, 938.) Here, however, Howell does not allege that the termination
caused her physical injury, nor was there undisputed evidence Howell
“necessarily” endured pain and suffering in connection with the termination
as distinguished from the 2017 assault.
Howell’s other authority—Smith v. Covell (1980) 100 Cal.App.3d 947—
is similarly distinguishable. In Smith, the court reversed the denial of
plaintiffs’ new trial motion not because of the jury’s zero damages award but
because of juror misconduct. (Id. at p. 956 [“the zero verdict is a special
category of inadequate damages resulting from the failure of the jury to
7
follow the court’s instructions of law”].) Howell did not identify juror
misconduct as a statutory basis for the new trial motion,8 nor does the record
present any suggestion of misconduct. Thus, neither Dodson nor Smith
require that Howell be awarded noneconomic damages as a matter of law.
Howell’s second argument—that “[n]o evidence was admitted at trial to
justify an award of zero”—is belied by the record, which contains ample
evidence supporting the jury’s verdict.
Dr. Hahn, who first examined Howell in 2017, testified that Howell’s
“mental health symptoms,” including her panic attacks, “were substantially
caused by the sexual assault at the CDCR.” When Dr. Hahn examined
Howell in 2018, he determined that Howell’s “mental health condition and
symptoms had worsened,” due in part to Howell’s “reexposure” to the inmate
perpetrator. Dr. Hahn explained that the second exposure had “a synergistic
effect” where “symptoms can increase, you know, algorithmically,
exponentially upwards.” Dr. Hahn recommended “cognitive behavior therapy
to help treat her symptoms,” such as Howell’s panic attacks. By July 2019,
Howell’s “condition and symptoms had significantly improved.” And, by
February 2020, Howell “presented essentially the best [Dr. Hahn] had ever
seen her,” notwithstanding her “continued . . . mild to moderate PTSD.”
Dr. Hahn concluded that Howell had reached “a ceiling for treatment” and
“maximal medical improvement.”
In addition, Howell acknowledges that “Dr. Berg testified he did not
believe the termination exacerbated any mental disorder.” According to
Dr. Berg, Howell “showed no signs of emotional distress now,” i.e., after
8 A motion for a new trial “is governed and limited by the statutory
provisions, . . . and can be granted only on a ground specified in the motion.”
(Malkasian v. Irwin (1964) 61 Cal.2d 738, 745, citing cases.)
8
termination. While Howell may have “felt depressed” about the termination,
she exhibited “symptoms of depression . . . immediately before she started
working” with DSH, including nightmares, crying spells, and difficulty falling
and staying asleep. (Italics added.)
Thus, considering the whole record, the evidence does not compel an
award of noneconomic damages. Accordingly, the trial court did not err in
denying Howell’s new trial motion.
II. DSH’s Motion for Judgment Notwithstanding the Verdict
Howell next argues the trial court erred in striking the jury’s award for
lost health insurance benefits. Generally, we review a trial court’s ruling on
a motion for judgment notwithstanding the verdict for sufficiency of the
evidence; however, de novo review is appropriate where an appeal raises
purely legal issues. (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045;
Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)
Where “ ‘ “the issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a finding in
favor of the appellant as a matter of law.” ’ ” (SwiftAir, LLC v. Southwest
Airlines Co. (2022) 77 Cal.App.5th 46, 59, quoting Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.)
Here, it is undisputed that Howell’s health insurance benefits were
discontinued upon her termination, and she did not obtain any substitute
coverage. Accordingly, we apply a de novo standard.9
9 However, for reasons we discuss, applying the more deferential
substantial evidence standard would not produce different results.
(Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [“As in
the trial court, the standard of review is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion”].)
9
At trial, Howell introduced no evidence of any damages resulting from
the loss of health insurance benefits, which is a fundamental prerequisite to a
compensatory damages award. (See McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 308 [the statutory objective of FEHA is “ ‘to make the
victim of discrimination whole’ ”]; Morgado v. City and County of San
Francisco (2020) 53 Cal.App.5th 1216, 1220 [“ ‘courts must take care not to
grant the employee a windfall’ ”].) While Howell presented an invoice from
her healthcare provider for insurance premiums in the amount of $1,115.75,10
Howell testified that she never paid the invoice and never obtained any
replacement insurance. Accordingly, Howell suffered no loss to compensate.
On appeal, Howell contends that the trial court “incorrectly concluded”
that Howell was not entitled to lost health insurance benefits because she
had not purchased “substitute benefits.”11 “In reaching said conclusion,”
Howell argues, “the trial court ignored controlling California authority and
relied solely upon federal authority.” We disagree.
Howell claims Potter v. Arizona So. Coach Lines, Inc. (1988) 202
Cal.App.3d 126, 135, “specifically held that lost health insurance benefits are
recoverable ‘as part of the benefits lost by wrongful termination.’ ” Not so. In
Potter, the Court of Appeal affirmed the dismissal of plaintiffs’ claims on a
10 The invoice is for the period of March 1 to August 1; however, in
argument, Howell used the unpaid invoice to extrapolate that seven months
of unpaid premiums would equal $7,810.25, which the jury awarded. Thus, it
appears Howell treated the invoice as the bill for a single month of coverage.
11 As the trial court aptly explained:“There was no evidence at trial
that [Howell] had suffered any out-of-pocket economic loss related to health
insurance. [Howell] did not pay for alternative health insurance, nor did she
suffer any economic losses as a result of payment for a non-insured loss. It
would be entirely speculative to imagine the compensable value of health
care as the cost of the premium.”
10
pleading challenge because the trial court lacked jurisdiction “due to the
exclusivity of the workers’ compensation law.” (Id. at p. 130.) Insofar as
Potter discussed health insurance benefits, it noted such benefits may be
“part of the compensation the [Workers’ Compensation Appeals Board] could
award,” which provides no support for Howell’s civil claim for damages. (Id.
at p. 135; Perrillo v. Picco & Presley (2007) 157 Cal.App.4th 914, 929
[Workers’ Compensation Appeals Board has “exclusive jurisdiction” over
workers’ compensation claims].)
Howell’s final argument that juries “frequently award lost fringe
benefits regardless of whether substitute benefits were purchased” is
unsupported by the cited cases. For example, in Fidler v. Hollywood Park
Operating Co. (1990) 223 Cal.App.3d 483, 489, the Court of Appeal reversed
the jury’s verdict, which did not include health insurance and only
questionably included pension benefits, with instructions to conduct a new
trial.12 Howell also cites Lowe v. California Resources Agency (1991) 1
Cal.App.4th 1140, 1144, footnote 3, which defines backpay as including
“fringe benefits (such as medical insurance)” but does not otherwise discuss
awards for lost health insurance. Howell provides no explanation why Lowe
supports her position, and a “reviewing court is not required to develop the
parties’ arguments” and may instead treat the undeveloped arguments as
waived. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 684; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not
have a life of their own”].)
12 Lane v. Hughes Aircraft Co. (1997) 65 Cal.Rptr.2d 889, which Howell
cites without explanation, was reversed by the California Supreme Court and
cannot “be cited or relied upon by a court or party.” (See Lane v. Hughes
Aircraft Co. (2000) 22 Cal.4th 405; Cal. Rules of Court, rule 8.115(a).)
11
Also unpersuasive is Howell’s reliance on Ofsevit v. Trustees of
California State University & Colleges (1978) 21 Cal.3d 763, 766. In Ofsevit,
the California Supreme Court affirmed the trial court’s award of “lost
benefits” as part of plaintiff’s reinstatement—without discussion of what the
“benefits” included—based on case law establishing that “teachers who have
been discharged in violation of their First Amendment rights are entitled to
full back pay from the time of their unconstitutional dismissal to the date of
their reinstatement.” (Id. at p. 776.) Howell asserts no constitutional claims,
and Ofsevit does not otherwise support her argument. Because Howell’s cited
cases do not specifically address the issue of substitute benefits, they “are not
authority for propositions that are not considered.” (California Building
Industry Association. v. State Water Resources Control Board (2018) 4 Cal.5th
1032, 1043.)
Although based on federal precedent,13 DSH offers the more compelling
argument that a damages award should compensate the plaintiff for actual
losses caused by the discrimination. (See, e.g., Galindo v. Stoody Co. (9th
Cir. 1986) 793 F.2d 1502, 1517 [reversing “improper” award based on
anticipated insurance premiums without a showing that plaintiff “actually
incurred expenses for substitute medical . . . coverage”]; E.E.O.C. v. Farmer
Bros. Co. (9th Cir. 1994) 31 F.3d 891, 902; see also Rivera v. Baccarat, Inc.
(S.D.N.Y. 1999) 34 F.Supp.2d 870, 875 [a “plaintiff is entitled to
compensation for the costs she incurred in maintaining health insurance
13 “California courts look to pertinent federal precedent when applying
FEHA because of the similarity between that statutory scheme and title VII
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).” (Frank v. County
of Los Angeles (2007) 149 Cal.App.4th 805, 817, fn. 3, citing Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 355.)
12
coverage equivalent to that she received through” the former employer],
italics added.)
Because Howell failed to introduce any evidence that she suffered a
loss, e.g., paid insurance premiums or otherwise incurred out-of-pocket costs
related to the loss of insurance, the trial court properly struck the award for
health insurance benefits.
III. Howell’s Motion for Attorney Fees, Costs, and Interest
Last, Howell challenges the trial court’s ruling on her motion for fees,
costs, and interest. “The normal rules of appellate review apply to an order
granting or denying attorney fees; i.e., the order is presumed correct, all
intendments and presumptions are indulged to support the order, conflicts in
the evidence are resolved in favor of the prevailing party, and the trial court’s
resolution of factual disputes is conclusive.” (Apex LLC v. Korusfood.com
(2013) 222 Cal.App.4th 1010, 1017.)
Under FEHA, “the court, in its discretion, may award to the prevailing
party . . . reasonable attorney’s fees and costs, including expert witness
fees . . . .” (Gov. Code, § 12965, subd. (c)(6).) A “prevailing plaintiff should
ordinarily receive his or her costs and attorney fees unless special
circumstances would render such an award unjust.” (Williams v. Chino
Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)
The primary method for calculating a reasonable attorney fee award is
the lodestar method, which multiplies the number of hours reasonably
expended by a reasonable hourly rate. (Lealao v. Beneficial California, Inc.
(2000) 82 Cal.App.4th 19, 26.) Trial courts may increase or decrease the
lodestar “by applying a positive or negative ‘multiplier’ to take into account a
variety of other factors, including the quality of the representation, the
novelty and complexity of the issues, the results obtained, and the contingent
13
risk presented.” (Ibid.) The choice of a fee calculation method is generally
one within the discretion of the trial court, with the “ultimate goal” being to
calculate an award that fairly compensates counsel without encouraging
unnecessary litigation. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970,
985 (Chavez); Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 504.)
Accordingly, a “ ‘fee request that appears unreasonably inflated is a special
circumstance permitting the trial court to reduce the award or deny one
altogether.’ ” (Chavez, at p. 990.) “When the trial court substantially reduces
a fee or cost request, we infer the court has determined the request was
inflated.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315,
1323.)
A. Relevant Facts
Howell’s counsel “commenced its review and investigation” of Howell’s
termination on January 31, 2020. Between then and July 2023, Howell’s
counsel worked 1,444 hours in total, “over two-thirds of [which] were spent
preparing for and trying the case.” In a January 2023 settlement conference
statement, Howell estimated her “remedies” to include $29,818 for lost
wages, between $250,000 and $350,000 for noneconomic damages,
prejudgment interest of $6,854.06, and “Attorney’s Fees & Costs” of
$123,101.95.
But seven months later in her posttrial motion for attorney fees,
Howell’s counsel calculated the lodestar to be $997,400, based on hourly rates
of $750 and $650, and sought a 1.75 multiplier, resulting in a total attorney
fee request of $1,745,450, plus litigation costs in the amount of $33,735.29.
Howell also sought prejudgment interest at a rate of 7 percent from “the date
the lost wages should have been paid (October 2, 2020) to the date of entry of
Judgment (May 24, 2023),” totaling $5,356.04.
14
In its opposition before the trial court, DSH argued that Howell’s
lodestar should be reduced by 80 percent “as she obtained only nominal
success” and asked that the attorney billing rates be reduced to $500 per
hour for “shareholders” and $300 per hour for “associates.” DSH also argued
that further reduction and denial of Howell’s request for a multiplier would
be appropriate as a policy matter because “the award will be assessed against
a state entity, DSH, and would be inappropriately shouldered by the
taxpayers.” Notably, DSH did not challenge Howell’s requests for litigation
costs or prejudgment interest. On reply, Howell’s request for attorney fees
grew again to $1,769,425, based on a revised lodestar of $1,011,100.
The court ultimately granted Howell’s motion in part and awarded
Howell a total of $135,102. In doing so, the court called Howell’s fee request
“striking” and “unsupportable,” finding the time spent on various matters
“shocking” and “beyond all reason.” Thus, the court determined “that
awarding the requested fees would effect an injustice.”
But the court also found that awarding Howell no attorney fees “would
also effect an injustice as [Howell] did prevail on one of her claims at trial.”
Thus, the court explained that the “solution that presents the least risk of
effecting injustice is reliance on [Howell’s] January 4, 2023, estimate, which
sought $123,102 in fees and costs.” The court made “one adjustment” to
Howell’s pre-trial estimate by awarding “an additional amount to compensate
counsel for the need to re-prepare for trial,” considering an unforeseen
continuance of trial from February 2023 to May 2023. The court found “that
12 hours for each of [Howell’s] two trial counsel is a reasonable amount for
this purpose,” adding $12,000, for a total award of $135,102 in “fees and
costs.” The court declined to apply any multiplier and did not separately
address Howell’s request for prejudgment interest.
15
B. Analysis
Because there is no dispute that Howell is entitled to fees under
Government Code section 12965, subdivision (c)(6), we review the trial court’s
award for abuse of discretion. (Vines v. O’Reilly Auto Enterprises, LLC (2022)
74 Cal.App.5th 174, 184.) In asserting error, Howell makes nine arguments,
and we agree with only one—the trial court should have specifically
addressed Howell’s unopposed request for prejudgment interest.
Several arguments are easily disposed of because Howell fails to show
“ ‘ “abuse of discretion, a prejudicial error of law, or necessary findings not
supported by substantial evidence.” ’ ” (Bernardi v. County of Monterey
(2008) 167 Cal.App.4th 1379, 1394.) Howell claims the trial court “falsely
accused” her counsel of “inaccurate arithmetic,” marginalized Howell’s
success, improperly considered DSH’s settlement offer, and wrongly relied on
Steele v. Jensen Instruments Co. (1997) 59 Cal.App.4th 326, 330, where the
trial court awarded no attorney fees to a FEHA plaintiff. However, the trial
court did not reduce or otherwise augment the fee award based on Howell’s
arithmetic or success, DSH’s settlement offer, or Steele. The court raised the
discrepancy in Howell’s computation of total hours expended not as a basis
for reducing the requested fees, but rather, in noting that counsel did not
provide the court with a means of auditing “the block billing breakdown,”
which the court found to be “outside all bounds of reason.” That counsel
correctly added unreasonable hours together does not impact the court’s
finding of unreasonableness. Similarly, in recounting the “context” of the fee
motion, the court explained that Howell “asserted five causes of action” but
“prevailed on only one” and that DSH offered to settle Howell’s claims for
$30,000 “[s]ome four months before trial.” Both are accurate statements, and
there is no discussion of apportionment or reduction that would suggest the
16
trial court placed weight on either fact.14 Finally, it does not appear the trial
court inappropriately relied on Steele, since it awarded Howell attorney fees,
implicitly finding her the prevailing party.
Howell next challenges the court’s reliance her pretrial settlement
conference statement “[i]nstead of analyzing the evidence and using the
lodestar method.” We are not persuaded. The court, in detail and consistent
with approved methods of fee calculation, found that the total hours
expended were “outside all bounds of reason given the number of issues
involved in the matter and their relative lack of complexity.” Further,
Howell’s “surreptitious” addition of a multiplier rendered the requested rates
unreasonable. Thus, the court determined “that $500 per hour is a
reasonable hourly rate” but had “no systematic way to audit” the number of
hours because Howell’s counsel submitted only “block-billed” summaries.15
Given the unreasonably inflated fee request, the court was authorized to
substantially reduce the requested amount (or deny the request altogether).
(Chavez, supra, 47 Cal.4th at pp. 990–991.)
Howell also faults the trial court for purportedly considering the hourly
rates of “counsel’s home San Joaquin County” rather than “the rate where
the trial court was located in Napa County” and further argues that the trial
court was “prejudiced” by DSH’s argument that it is a public entity, and any
award will be paid by the taxpayers. Again, we see no error. Insofar as the
14 To the contrary, the court added $12,000 to Howell’s estimate for
trial preparation that occurred after DSH’s settlement offer.
15 The court was not required to accept Howell’s figures (Consumer
Privacy Cases (2009) 175 Cal.App.4th 545, 556 [“the ‘ “experienced trial judge
is the best judge of the value of professional services rendered in [their]
court” ’ ”]), and Howell proposes no alternative means of calculating a
reasonable number of hours expended.
17
court noted the prevailing rates in San Joaquin County, it did so to highlight
that Howell’s counsel had “surreptitiously” applied a risk multiplier to
counsel’s hourly rate, which was “not well received by the [c]ourt” and
supports the trial court’s reduction. (See, e.g., Robertson v. Fleetwood Travel
Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 819 [the court “first”
calculates the lodestar, “then” the lodestar may be augmented by a
multiplier].) Similarly, the court’s only discussion of taxpayers explains its
refusal to apply a positive multiplier, where courts expressly may consider
taxpayer status. (Lealao v. Beneficial California, Inc., supra, 82 Cal.App.4th
at p. 40, fn. 8 [in deciding whether to apply a multiplier, courts may consider
“ ‘the fact that an award against the state would ultimately fall upon the
taxpayers’ ”].)
We also disagree with Howell’s final argument that the award should
“be reversed because it is so small that it ‘shocks the conscience . . . .’ ” An
attorney fee award is to compensate counsel, not provide a windfall. (Chavez,
supra, 47 Cal.4th at p. 985.) As explained in the trial court’s order, this
action was not complex and was over litigated by Howell’s counsel. As
examples, the trial court noted that Howell brought 19 motions in limine,
none of which were successful, and spent 62 hours opposing DSH’s motion to
compel Howell’s mental exam in an action where Howell claimed pain and
suffering. “The unreasonable assertions of time spent persist[ed]” in Howell’s
reply brief in support of her attorney fee request.16 Counsel is “not entitled to
16 Howell initially sought a combined total of 15 hours for future “post-
trial work related to a Reply Brief regarding this Motion for Attorney’s Fees.”
But, in the reply brief, Howell increased her ask to 35 hours. The
represented increase in incurred hours is possible, since Howell’s 23-page
reply brief was more than twice the limit set forth in California Rules of
Court, rule 3.1113(d) (“No reply or closing memorandum may exceed 10
pages”), but that does not mean it is reasonable.
18
compensation for . . . work merely because it was performed.” (Baxter v. Bock
(2016) 247 Cal.App.4th 775, 793.) Rather, it is counsel’s burden “to persuade
the trial court the work was reasonably necessary, both as to the particular
tasks performed and the amount of time devoted to them.” (Ibid.)
Moreover, in January 2023, Howell estimated attorney fees and costs to
be $123,101.95. Howell argues that the estimate represented the fees and
costs “as of the time of the [Mandatory Settlement Conference],” not the fees
and costs through trial; however, Howell provides no justification for how she
reasonably incurred nearly a million dollars in attorney fees between
January and July 2023 in an action that had been pending since August
2020. Thus, we see no basis for finding the court’s awarded amount so small
that it shocks the conscience.
However, Howell argues that the trial court “altogether failed to
address the issues of litigation costs and pre-judgment interest.” We agree in
part. The court’s order addressed costs by awarding $135,102 in “fees and
costs” (italics added); however, DSH did not oppose Howell’s request for
prejudgment interest below, the calculation of which the parties apparently
stipulated “for the [c]ourt to decide.” Because the court’s order makes no
mention of Howell’s unopposed request, we remand to the trial court to
consider Howell’s request for prejudgment interest.
DISPOSITION
The orders denying Howell’s motion for new trial and granting DSH’s
motion for judgment notwithstanding the verdict are affirmed. Insofar as the
court failed to address Howell’s request for prejudgment interest, the matter
is remanded for further consideration. The judgment is otherwise affirmed.
DSH shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
19
_________________________
DESAUTELS, J.
We concur:
_________________________
RICHMAN, ACTING P. J.
_________________________
MILLER, J.
Howell v. Department of State Hospitals (A168526 & A169105)
20
Filed 12/5/24 after filing
nonpublished opinion on 11/7/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ASHLEY HOWELL,
Plaintiff and Appellant,
A168526, A169105
v.
DEPARTMENT OF STATE (Napa County Super. Ct.
HOSPITALS, No. 20CV000794)
Defendant and Respondent.
ORDER CERTIFYING OPINION
FOR PUBLICATION
The opinion in the above-entitled matter, filed on November 7, 2024,
was not certified for publication. For good cause, request for publication is
granted.
Pursuant to California Rules of Court, rule 8.1105, the opinion is
ordered certified for publication in the Official Reports.
Dated: _______________ _________________________
Richman, Acting P. J.
1
Trial Court: Napa County Superior Court
Trial Judge: Hon. Scott R.L. Young
Attorneys for Appellant: Law Offices of Corren & Corren
Adam Blair Corren
Spencer D. Sinclair
Attorneys for Respondent: Rob Bonta
Attorney General of California
Chris A. Knudsen
Senior Assistant Attorney General
Fiel D. Tigno
Deputy Attorney General
Gregory A. Call
Deputy Attorney General
Christopher D. Beatty
Deputy Attorney General
2