The opinion
Filed 1/8/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PAMELA POLLOCK, B320574
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC676917
v.
MICHAEL KELSO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lia Martin, Judge. Affirmed.
Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly,
and Julian Bellenghi for Plaintiff and Respondent.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre and
Tracy Forbath for Defendant and Appellant.
____________________
We affirm an attorney fee award.
I
In 2018, Pamela Pollock sued her supervisor Michael Kelso
for sexual harassment and, on grounds of race, refusing to
promote her. Pollock alleged Kelso asked her for sexual
intercourse in 2016 and, after she rejected him, he promoted five
less qualified people of other races to positions she sought. The
trial court ruled Pollock’s suit was time-barred. We affirmed.
(Ducksworth v. Tri-Modal Distribution Services (2020) 47
Cal.App.5th 532.)
In 2021, the Supreme Court reversed and rendered three
holdings. First, the statute of limitations in this type of case
begins to run when plaintiffs knew or should have known of the
adverse promotion decision. (Pollock v. Tri-Modal Distribution
Services, Inc. (2021) 11 Cal.5th 918, 941.) Second, the defense
bears the burden on this issue. (Id. at p. 947.) Third, under the
Fair Employment and Housing Act, an appellate court may not
award costs or fees on appeal to a prevailing defendant without
first determining that plaintiff’s action was frivolous,
unreasonable, or groundless when brought, or that plaintiff
continued to litigate after it clearly became so. (Id. at pp. 947–
951.)
Following the Supreme Court’s directions, in 2021 we
remanded and ordered costs for Pollock.
In the trial court, Pollock moved for $526,475.63 in
attorney fees under subdivision (c)(6) of Government Code section
12965 in late 2021. In March 2022, the trial court awarded
$493,577.10. Kelso filed his notice of appeal on May 9, 2022.
The trial court set a trial date of May 1, 2023.
Before that trial date, in February 2023, Kelso and Pollock
settled the bulk of their case. Pollock moved to dismiss her
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underlying case with prejudice, except for the attorney fee award
that Kelso was appealing. The trial court was to retain
jurisdiction regarding the fee award. Other terms of the
settlement were confidential.
In this court, Pollock offers to provide us with the
confidential settlement agreement in camera to substantiate that
it expressly identifies her as the prevailing party against Kelso.
Kelso objects, claiming this would be an improper augmentation
of the record. In support of this claim, Kelso cites Rule
8.155(a)(1)(A) of the California Rules of Court, which empowers
us to order certain record augmentations. This rule does not
prohibit stipulated augmentations.
On April 20, 2023, the parties filed a stipulation regarding
the settlement with the trial court. The court signed their
stipulated order, which stated “The court DISMISSES this entire
action, case number BC676917, with prejudice as to all parties
and all causes of action.” The court retained jurisdiction
regarding the fee award.
II
As an initial matter, we deny Pollock’s motion to dismiss
Kelso’s appeal. Pollock claims we lack jurisdiction over an appeal
from what she describes as a merely interlocutory order. Kelso is
appealing, however, from a final collateral order. Pollock also
complains of an insubstantial defect in Kelso’s notice of appeal.
This notice preserved Kelso’s right to appeal. (See K.J. v. Los
Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882.) Pollock
further notes her attorney, in the course of perfecting this appeal,
sent Kelso’s lawyer an email but received no response. This lapse
of professionalism is discreditable but not a basis for dismissing
Kelso’s appeal.
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III
Moving now to the merits, we affirm the fee award.
A
In civil actions brought under the Fair Employment and
Housing Act, the trial court, in its discretion, may award a
reasonable attorney fee to the prevailing party. (Gov. Code,
§ 12965, subd. (c)(6).)
Determining the prevailing party sometimes is easy and
sometimes not. In many cases, it can be obvious one side won
and the other lost. But other outcomes can be hard to figure.
Making judgments about who, if anyone, prevailed can be
intricate and nuanced.
Trial courts have an unparalleled perspective on who is a
prevailing party. They are uniquely positioned to observe telltale
ephemera, such as the parties’ reflexive reactions when the
verdict is announced. (E.g., Olive v. Gen. Nutrition Centers Inc.
(2018) 30 Cal.App.5th 804, 823 [no prevailing party when trial
court saw both parties were visibly dismayed by the jury
verdict].)
By statute, the fundamental factor governing fee awards is
reasonableness. (Gov. Code, § 12965, subd. (c)(6).) Quantifying
this factor requires the court to exercise discretion after
surveying the case’s landscape. (See Snoeck v. ExakTime
Innovations, Inc. (2023) 96 Cal.App.5th 908, 920–921 (Snoeck).)
Trial judges are in the best position to evaluate attorney fee
awards. (See Laffitte v. Robert Half Internat. Inc. (2016) 1
Cal.5th 480, 488 (Laffitte).) They see the lawyers’ day to day
labors and can judge quality over the long haul. Awarding fees is
a recurring task on a trial court’s docket. Experienced trial
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judges routinely see fee applications and develop a sense of what
is customary and reasonable.
We owe considerable deference to trial court
decisionmaking about attorney fee awards and thus review for an
abuse of discretion. We presume the trial court’s award is
reasonable and the court considered appropriate factors in
reaching its decision, even though the court may not have
rendered a written ruling. The trial court is not required to state
each charge it finds reasonable or unreasonable, nor need it issue
a statement of decision. (Snoeck, supra, 96 Cal.App.5th at pp.
920–921.) We will not disturb the trial court’s judgment unless it
is clearly wrong. We accept the trial court’s factual findings
supported by substantial evidence, and we imply findings to
support the court’s order. The burden is on the objector to show
error. (Laffitte, supra, 1 Cal.5th at p. 488; Rojas v. HSBC Card
Services Inc. (2023) 93 Cal.App.5th 860, 873.)
Two methods for determining whether a fee is reasonable
are the lodestar formula and the percentage-of-recovery
approach. (See Karton v. Ari Design & Construction, Inc. (2021)
61 Cal.App.5th 734, 744–745.) On this choice, parties and
lawyers can switch preferences opportunistically. (Ibid.) The two
methods can serve as cross checks on each other. (See Lafitte,
supra, 1 Cal.5th at p. 506.)
Equitable factors can be pertinent in calculating a
reasonable fee. (See PLCM Group, Inc. v. Drexler (2000) 22
Cal.4th 1084, 1095.)
B
Kelso argues that, first, Pollock was not a prevailing party,
and second, the award was too high.
We begin with the prevailing party issue.
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For purposes of analysis, we assume the trial court erred by
concluding before trial that Pollock was a prevailing party. Since
then, however, the parties have settled and the case is concluded,
save for this fee issue. We hold any assumed error was harmless.
When the trial court set a trial date and it grew near, Kelso
decided to settle. Kelso declines to lodge the settlement
agreement with this court in camera, which Pollock’s counsel
maintains expressly identifies Pollock as the prevailing party. At
oral argument, Pollock’s attorney brought the settlement
document to counsel table, but Kelso’s appellate attorney claimed
she had never seen it. She declined to view it. Kelso’s
reluctance, and Pollock’s willingness, reveal that Pollock won
something tangible. Pollock’s gain postdates the trial court’s fee
award, but it has significance for this appeal: the case is over
and, as a practical matter, the time is ripe to consider a fee
award.
We thus turn to issue number two: the size of the award.
Kelso maintains the amount of the trial court’s fee award—
$493,577.10—is unreasonable. The court abused its discretion,
Kelso asserts, by failing to apportion the award among “the
defendants involved in the appeal.” Kelso, however, fails to
identify who these other defendants were, how their issues might
have been different from Kelso’s, and in what degree. Kelso
forfeited this argument by failing to elaborate his argument in
meaningful detail in his opening brief. It is not fair for Kelso to
ask this court to spell out the particulars of his vague argument.
His approach, were we to indulge it, would not give Pollock
reasonable notice of the thrust she must parry.
Kelso complains Pollock’s counsel charged too high an
hourly rate. One lawyer submitted a declaration saying his rate
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was $850 per hour, while others on the case declared their rates
were $675 per hour. On a substantial evidence review, we accept
all evidence in support of the order, draw all reasonable
inferences to affirm it, and do not reweigh the evidence.
(Hoglund v. Sierra Nevada Memorial-Miners Hospital (2024) 102
Cal.App.5th 56, 75.)
The lawyers’ declarations were substantial evidence
supporting the trial court’s order. The trial court adjusted
Pollock’s fee request downward by $32,898.53. We presume this
was to account for a reduction in hourly rates.
Trial courts certainly are not bound to accept lawyers’ self-
interested declarations of their own worth. Judges regularly see
fee declarations more accurately described as aspirational than
believable. Trial courts are free to adjust downward, to demand
corroboration, or entirely to reject fee requests when lawyers’
claims are implausible, poorly supported, or do not match the
quality of the work the court has witnessed in the litigation. But
this trial court compared these declarations with what it knew of
these lawyers’ performances in this case. The court exercised
reasonable discretion in accepting this evidence.
This one-time finding does not set some floor for future fee
requests by these or other lawyers. No one-way ratchet is at
work. Supply and demand in the legal market, as in other
markets, can be dynamic. Price can fluctuate here as elsewhere.
Kelso contends Pollock’s lawyers billed too many hours.
Missing from Kelso’s briefing, however, is any mention of how
many hours his lawyers devoted to this years-long litigation.
Evidence of how much work one side did is an independent gauge
of how much the other side did on the same case. Absent this
comparative data, Kelso’s complaint rings hollow.
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Kelso faults the court for multiplying Pollock’s fee request
by a 1.8 multiplier. The primary purpose of a fee multiplier is to
compensate the attorney for the prevailing party at a rate
reflecting the risk of nonpayment in contingency cases. If a trial
court is concerned a particular award is excessive, it has broad
discretion to adjust the fee downward or to deny an unreasonable
fee altogether. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138;
see also Laffitte, supra, 1 Cal.5th at p. 505.) Given that
overreaching can backfire badly, fee claimants should understand
that moderation is a virtue.
The choice of the appropriate multiplier can have an
enormous effect on the total fee award. California law gives the
trial court vast discretion in deciding whether to employ a
multiplier and at what level to set it. No established criteria
calibrate the precise size and direction of the multiplier, thus
implying considerable deference to trial court decisionmaking
about attorney fee awards. This tremendous but ill-defined
quantitative potential erodes the apparent precision of the
lodestar method.
A multiplier of 1.8 was, in the context of this case, within
the acceptable range of trial court discretion. Kelso’s attorneys
presumably billed for their services every month and enjoyed
regular paychecks. The situation can be different for attorneys
working on a contingency who can labor for years solely in the
hope that someday a crop will come in. Some years the harvest is
a bounty. Other years there is nothing at all.
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DISPOSITION
We affirm and award costs to the respondent.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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