Opinion

Pollock v. Kelso

Court
California Court of Appeal
Filed
Jan 8, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 33.6%

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.

5

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

6

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.

7

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.

///

///

///

8

DISPOSITION

We affirm and award costs to the respondent.

WILEY, J.

We concur:

GRIMES, Acting P. J.

VIRAMONTES, J.

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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