The opinion
Filed 4/25/23 Thomas v. City of Los Angeles
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MALCOLM THOMAS, B305051
(c/w B308622)
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC416182)
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEALS from a judgment and an order of the Superior
Court of Los Angeles County. Victor E. Chavez, Judge. Affirmed.
Shegerian & Associates, Inc., Carney R. Shegerian and Jill
McDonell for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Chief Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney, and
Michael M. Walsh, Deputy City Attorney, for Defendant and
Appellant.
______________________________
Plaintiff Malcolm Thomas (Thomas), a former employee of
the Los Angeles Police Department (LAPD), brought a Fair
Employment and Housing Act (FEHA) action against defendant
City of Los Angeles (the City), alleging six causes of action. The
matter was originally tried in July 2010, with a defense verdict
on all causes of action except the claim for disability
discrimination; the jury found in favor of Thomas on that cause of
action. The City successfully appealed. On December 6, 2012, we
reversed the judgment in favor of Thomas and remanded the
matter for a new trial on Thomas’s disability discrimination
claim. In July 2019, the matter was retried. The jury again
found in favor of Thomas, awarding him $1,014,000. The trial
court later awarded Thomas attorney fees in the amount of
$2,311,662.50 and costs of $272,270.01.
On appeal, the City argues: (1) Because Thomas was not a
qualified person, he failed to present a prima facie disability
discrimination case; (2) Jury misconduct requires a new trial; and
(3) The trial court awarded Thomas excessive attorney fees.
We affirm.1
1
Thomas also filed a protective cross-appeal. According to
his appellate brief: “In this protective Cross-Appeal, Thomas
asks that the Court reverse the Trial Court’s October 3, 2018,
Order, granting [the City’s] Motion to Dismiss claims under
Thomas’s 2012 complaint pursuant to the three-year and five-
year statutes, only if this Court reverses the judgment pursuant
to [the City’s] appeal.” We presume Thomas is referring to the
trial court’s October 10, 2018, order; on October 3, 2018, the trial
court took the City’s motion to dismiss under submission. In any
event, since we are affirming the judgment, we need not reach
the issues raised in the cross-appeal.
2
FACTUAL2 BACKGROUND
I. Thomas’s employment with LAPD
Thomas began working as an LAPD police officer in May
1997, then worked for the District Attorney’s Office, returning in
February 2007 and transferring to the training division in
September 2007. He trained extensively and worked as an
instructor in ARCON/PT,3 assisting primary instructors teaching
recruits and teaching classes to in-service officers getting
recertified.
II. Thomas injures his knee
On May 9, 2008, during a training session, Thomas tore his
left knee medial meniscus and injured his back.
On Monday, May 12, 2008, Thomas provided a doctor’s note
to his supervisor, Sergeant Christopher Costley (Costley),
informing LAPD that Thomas’s physical restrictions included no
squatting, kneeling, running, jumping and limited use of knee.4
2
We review the record in the light most favorable to the
judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Because
the City only challenges one element of Thomas’s discrimination
claim (whether he was a qualified individual), we limit our
discussion of the detailed facts to those pertaining to that
contention.
3
Arrest and Control/Physical Training unit.
4
Part of Thomas’s disability discrimination claim was that
Costley disregarded these restrictions.
3
III. Thomas undergoes knee surgery and then returns to work
with restrictions
A. Surgery
On June 30, 2008, Thomas underwent knee surgery, which
required months of recovery.
B. LAPD policies regarding returning injured officers to
work
The LAPD has two statuses for officers returning from
injury, temporary and permanent. If a doctor places temporary
medical restrictions on an LAPD officer, the officer can work if it
does not violate his restrictions. The LAPD has an obligation to
return injured workers back to work without violating
restrictions. “There’s a lot of inside jobs that the department has
to accommodate people who are light duty.” For example,
Captain Michelle M. Veenstra (Veenstra) testified that Thomas
could have worked with restrictions in her office. From 2008 to
2009, the LAPD had a number of officers working day-to-day
desk jobs, which included Police Officer II (Thomas’s position).
Former Assistant LAPD Chief Sandy Jo MacArthur
(MacArthur) testified that returning to active duty, not full duty,
is the LAPD’s concern regarding injured officers; LAPD would
like them to come back and actively participate in light duty.
Officers are not expected to perform like full duty officers when
they are on light duty.
C. Thomas’s return to work; Costley’s failure to comply
with LAPD policy and the medical restrictions
Thomas spoke with Costley twice postsurgery while on
leave. First, he called and said he would be returning with strict
restrictions; Costley said to get longer time off from his doctor
because there was not much to do “‘unless you’re full-go.’” Later,
4
when Thomas reported that he still had strict restrictions and
provided LAPD with a doctor’s note detailing the restrictions,
Costley responded, “‘We’ll put you on the fourth floor,’” the
administrative floor.
In the October 13, 2008, duty certificate that Costley
created using Thomas’s doctor’s note, Costley wrote, “[s]edentary
work only” after returning from surgery.
Thomas returned to work on October 15, 2008. But, he
never worked fourth floor administrative, and his work was not
sedentary. Instead, he worked his normal duties as an assistant
instructor, helping teach recruit classes and demonstrating
techniques, but not going on runs. Thomas discussed his
restrictions with Costley and requested projects that would be
sedentary; Costley said, “‘I’ll let you know.’”
D. Thomas notifies Veenstra of discrimination and/or
harassment
Thomas felt that Costley was not recognizing his
restrictions by not placing him on the fourth floor and expecting
him “to go out there with the recruits.” Thus, on November 10,
2008, Thomas notified Veenstra of disability discrimination
and/or harassment.
E. Thomas gives Costley a November 11, 2008, doctor’s
note; he is placed on medical leave (Nov. 12, 2008)
On November 11, 2008, Thomas obtained a doctor’s note
from Dr. Emmett Cox II, an orthopedic surgeon and the agreed
medical examiner, that returned Thomas to work on modified
duty. The following day, he gave that note to Costley; Costley
responded angrily. He told Thomas: “‘Veenstra told me to give
you a project,’” his first time offering administrative duties to
Thomas. Costley was “visibly upset” at roll call and looked at
5
Thomas, stating, “[W]e’re all adults here. If you have a problem
fix it yourself.’” After roll call, no one spoke to Thomas; they
turned their backs on him, which was not normal.
After work that day, Thomas went to his primary care
doctor, Dr. Amanuel Sima, because he was anxious, headachy,
and suffering from irregular breathing. He was placed on leave
until December 26, 2008, for multiple medical conditions.
On November 13, 2008, Costley received Dr. Sima’s note.
IV. Meanwhile, Thomas begins mental health treatment
From October 2008 through January 2009, Thomas had
varying levels of depression.
A. Dr. Adam Herdina
Starting on October 30, 2008, Thomas began obtaining
treatment from Dr. Adam Herdina, a police psychologist.
Dr. Herdina saw improvement in February/March of 2009,
which he attributed to Thomas being away from work. At no
time did he opine that Thomas’s police powers should be
removed.
B. Dr. Rodney D. Collins
On November 24, 2008, psychiatrist Dr. Collins began
treating Thomas. On January 29, 2009, Dr. Collins issued a stay
away order to the LAPD, advising Thomas’s supervisors and the
LAPD as a whole to cease contact with Thomas.
After 60 days, Thomas improved, so on March 28, 2009,
Dr. Collins issued a release to return to work.5 Dr. Collins did
not believe that Thomas’s ability to be a police officer was
restricted at that time.
5
His office’s standard practice is to fax these notes to the
employer.
6
Dr. Collins verbally informed Thomas of this release within
a few days of its transmittal to Thomas’s employer.
After his conversation with Dr. Collins, Thomas informed
Sarah Richardson (Richardson), an investigator with the
Inspector General’s Office, that his “psych” had cleared him. On
April 24, 2009, Richardson e-mailed Detective Christopher Leo
Casey (Casey) and then-Sergeant Timothy Nordquist (Nordquist)
at Internal Affairs that Thomas “stated that he had been cleared
by the psychologist.”
Casey explained that even though Thomas had been
“cleared,” that assessment had to go through the LAPD “Medical
Liaison” so that LAPD could trust and verify that the officer
could return to work. But, Casey did nothing in response and
was unaware if LAPD followed up on it.
V. LAPD’s investigation into Thomas’s discrimination complaint
Eventually, the LAPD launched an investigation into
Thomas’s discrimination complaint. Nordquist led the
investigation and submitted his report to the adjudicator,
Captain Don Schwartzer, who identified no misconduct.
VI. Thomas’s police powers are suspended
A. Suspension of police powers
On April 6, 2009, Thomas’s police powers were removed.6
Veenstra notified Thomas: “Your peace officer status shall
remain suspended until you are returned to full and active
6
At trial, Nordquist testified that the removal of police
powers including badge and gun constitutes an adverse
employment action.
7
duty,”7 directing him to relinquish his duty weapon and
identification, “[b]ased on your medical condition, the
Department hereby withdraws your authority to act in the
capacity as a peace officer.”
VII. Thomas is cleared to return to work
A. Conflicting evidence regarding when Thomas was
cleared to return to work
There was conflicting evidence regarding when Thomas
was cleared to return to work. On July 2, 2008, Dr. Ronald E.
Glousman, Thomas’s surgeon, notified LAPD that Thomas was
“temporarily totally disabled for 6 weeks.” But on July 31, 2008,
Dr. Glousman reported that Thomas could return to work that
date with certain physical restrictions.
A September 8, 2008, treatment and disability information
form completed for Thomas’s workers’ compensation claim
indicated that he could return to work on restricted duty only
effective that date. But, another treatment and disability
information form, also dated September 8, 2008, indicated that
Thomas was temporarily totally disabled until October 13, 2008.
As set forth above, Dr. Cox returned Thomas to work on
modified duty on November 11, 2008. In other words, as Dr. Cox
explained at trial, Thomas could have performed his job with
7
MacArthur testified that the letter’s reference to “full duty”
was not necessary and an oversight because officers return and
work light duty; MacArthur would not have put “full duty” in the
letter because LAPD’s concern is active duty, even if light.
Although she signed it, Veenstra could not explain why the letter
referenced full duty, because Thomas did not have to come back
full duty.
8
accommodations; he could be a police officer who performed
administrative or sedentary work. While Dr. Cox testified that
Thomas could not return to work as a patrolman, he also attested
that Thomas could return to a police position that did not involve
hand-to-hand combat.
Dr. Collins issued a release for Thomas to return to work
on March 28, 2009. Dr. Sima cleared Thomas to return to work
on May 24, 2009.
Dr. Douglas Jackson, an orthopedic surgeon, signed a
workers’ compensation document authorizing Thomas to return
to work as a police officer as of August 14, 2009.
Dr. Robert Wilson, an orthopedic surgeon, offered expert
testimony that by 2009, Thomas would have been cleared to
return to full activities.
Thomas also saw Dr. Yuan in 2009. In May, Dr. Yuan
placed him off work for six weeks. On August 27, he indicated
that Thomas was to remain off work for four weeks because of
back pain.
Derwin Henderson (Henderson) of the return to work
section8 opined that Thomas’s restrictions did not allow him to
return to work until 2016.
8
The return to work section finds reasonable
accommodations for employees with permanent and temporary
work restrictions. Donna Baylosis (Baylosis) testified that the
return to work section does not handle situations where an officer
brings his supervisor a light duty notice and the officer can be
accommodated by the division. However, if the training division
could not accommodate a light duty, the return to work section
would step in and assist.
9
B. Conflicting evidence regarding whether Thomas had to
return to work full duty
Thomas believed that he had been cleared to work with
restrictions, i.e., light duty. But, Thomas understood from the
LAPD that he was required to return to full duty, making light
duty not an option. After all, before he returned to work after his
surgery, Costley told him not to return “‘unless you’re full-go.’”
Veenstra’s April 6, 2009, letter also said so. And, two employees
with the return to work section, Baylosis and Henderson, advised
Thomas that he was required to return to full duty. Thomas was
never told that he did not have to return to work full duty in
2009.
According to Veenstra, removal of his police powers did not
prevent Thomas from returning to work. She testified: “[A]ll he
had to do was come back with a doctor’s note putting him back to
full duty—coming back, and . . . I have to correct. [¶] He doesn’t
have to come back full duty. He could come back light duty like
he did prior. [¶] . . . [T]hen at that time everything would be
reevaluated.” In fact, LAPD had officers who worked in
administration. And officers in the training division do not make
arrests.
PROCEDURAL BACKGROUND
I. The complaint; first trial; appeal; remand for new trial
In June 2009, Thomas initiated this lawsuit against the
City, alleging claims for (1) workplace harassment in violation of
FEHA; (2) retaliation in violation of FEHA; (3) failure to
investigate in violation of FEHA; (4) disability, racial, and sexual
orientation discrimination in violation of FEHA; (5) retaliation in
violation of statutory policy; and (6) declaratory and injunctive
relief.
10
The matter proceeded to a jury trial in July 2010, with the
jury returning a verdict in favor of Thomas on the sole claim of
disability discrimination. The City successfully appealed.
Finding prejudicial error in the trial court’s jury instructions, we
reversed the judgment and remanded the matter for a new trial
on that lone cause of action.9 (Thomas v. City of Los Angeles
(Dec. 6, 2012, B229265) [nonpub. opn.].)
II. Three new trials on the remanded disability discrimination
claim
In October 2014, the trial court retried the remanded
disability discrimination cause of action. A mistrial occurred.
Thereafter, a new trial on the remanded disability
discrimination claim commenced in April 2015, but the jury could
not reach a verdict.
The third retrial began in July 2019.10
III. Jury instructions
As pertains to the issues in this appeal, the jury was given
joint instructions as filed by the parties. These instructions
included CACI No. 2543, which defines “‘Essential Job Duties’”
9
While the City’s appeal was pending, Thomas initiated a
second lawsuit against the City in 2012 (Thomas II). The parties
later stipulated to dismiss Thomas II without prejudice, with
Thomas filing a supplemental complaint in the instant action,
adding each of the causes of action in Thomas II to the disability
discrimination claim. On October 10, 2018, the trial court
dismissed those claims that were originally pleaded in Thomas II.
Thus, the only claim that went to trial was Thomas’s original
cause of action for disability discrimination.
10
After Thomas rested, the City moved for a directed verdict.
That motion was denied.
11
and specifically references Government Code sections 12926,
subdivision (f), and 12940, subdivision (a)(1). The jury was also
given the following special defense instruction: “The City has no
obligation to accommodate Plaintiff if he was totally disabled and
could not perform all of the essential functions required to be a
police officer.”
IV. Jury
On July 25, 2019, 15 jurors were sworn in. On August 15,
2019, alternate jurors were chosen after both parties rested, after
closing arguments, and after the joint jury instructions were
read. Alternates were randomly selected by drawing “because,
obviously, 15 can’t make the decision that 12 are required to
make.” The trial court erroneously informed that “Alternate
Number 1 will be–Juror Number 1, Mr. Bindoy.” However,
Mr. Bindoy was Juror No. 2; Mr. Hernandez was Juror No. 1.
V. Jury verdict
Ultimately, the jury returned a verdict for Thomas on
August 20, 2019, awarding him $714,000 for past economic loss,
$300,000 for past noneconomic loss, and no future damages, for a
total verdict of $1,014,000.
VI. Jury poll and new deliberations/verdict
The City requested a poll on Question No. 611 of the special
verdict. At that point, the parties learned that Mr. Hernandez
11
Question No. 6 asked the jury whether the City would have
subjected Thomas to an adverse employment action had the City
not been substantially motivated by his actual or perceived
disability. The City does not explain why the answer to this
question was so important, given the jury’s findings in response
to Question Nos. 1 through 5 that the City did discriminate
against Thomas.
12
(Juror No. 1) had believed himself to be an alternate and not
voted, while Mr. Bindoy (Juror No. 2) had voted.
The trial court corrected the roster of jurors and sent the
jury back for additional deliberations and a new vote.
Specifically it told the jury: “You have to go back into the jury
room. Ignore the vote—this vote. Start all over again and take a
vote again. [¶] Hear whatever Mr. Hernandez has to say to
speak to the issues. [¶] I ask you to please return and do that.”
It did not explicitly instruct them to disregard the improper
deliberations.
After the jury departed, the trial court and counsel
discussed how this confusion could have occurred. The trial court
asked the clerk to confirm the three alternates with the jury.
Identifying Juror Nos. 2, 10, and 16, the trial court told the clerk:
“Those should be jurors that shouldn’t be deliberating, and they
should start their deliberations all over again.” The clerk then
located blank verdict forms to give to the jurors. The trial court
confirmed with counsel that this proceeding was satisfactory;
defense counsel did not object.
After approximately 30 minutes, the jury returned with the
identical verdict.
VII. The City’s motion for a new trial
A. Motion and opposition
On December 23, 2019, the City moved for a new trial on
the grounds of juror misconduct. It argued that “a non-juror
participated in the deliberation process from its inception and for
over two days as if he was a designated juror and then voted on
the Special Verdict which was read in open court.” According to
the City, the alleged jury misconduct was pervasive “since it
invalidated the entire deliberation over more than two days—and
13
therefore went to the very heart of the deliberation process.” And
the trial court did not provide a cure. “The only thing the jury
was told here was to ignore the previous vote on the special
verdict when reconvening, and no mention was made of the two
days of invalid deliberation. [Citation.] In fact, the jury should
have been required to disregard all previous deliberations—
which were inherently improper and legally invalid—and
anything that the misplaced alternate may have said during
those deliberations. [Citations.] That did not happen here.”
The City added: “It is not even clear from the court’s
comments that the jury was instructed to begin deliberations
over from the beginning. The court’s comment that the jury
should ‘start all over again and take a vote again’ is ambiguous,
particularly since the jury was not instructed to disregard any of
the prior invalid deliberations. [Citation.] A fair reading of this
comment, followed by an instruction to let the missing juror
speak, would be to let him speak and then vote again, with full
consideration of the improper deliberations. Given the fast
turnaround by the jury after restarting deliberations (about
30 minutes), particularly given the length of the special verdict
and that the previous deliberations took over two days, it appears
that the jury did rely on the improper deliberations.”
Thomas opposed the motion.
B. Trial court order
On February 21, 2020, the trial court denied the City’s
motion, finding that the jurors’ conduct did not cause prejudice or
result in a miscarriage of justice. The trial court first found that
the City waived any challenge to the verdict on the grounds of
juror misconduct. Defense “counsel knew about the misconduct
involving the alternate juror deliberating with the other jurors
14
before the verdict. There is no evidence that he promptly
objected after learning about the misconduct. Further, [defense]
counsel could have immediately objected or discussed his
concerns during the thirty minutes when the jury was absent and
deliberating. Since the [City] did not make any prompt objection
after learning about the alleged juror misconduct, the [City]
waived this ground for a new trial.”
Setting that procedural obstacle aside, the trial court
turned to the question of whether there was juror misconduct and
a resulting miscarriage of justice. It found “that there was jury
misconduct because the jurors did not follow the court’s
instructions.” In particular, “the jury did not follow the Court’s
instructions regarding which jurors should participate in the
deliberations.” But, “this misconduct was not prejudicial and did
not result in a miscarriage of justice.” “[W]hen the Court
discovered that the alternate juror had deliberated and voted
with the other jurors, the Court promptly corrected the
misconduct by ordering the jurors to ignore the prior vote and to
vote again. As a result, any prejudice created by the alternate
juror’s misconduct was not prejudicial.”
Furthermore, there was no “showing that it was reasonably
probable that the jury would have reached a different verdict.”
The fact that the second deliberation was shorter than the first
deliberation was “not enough to show [that] there was jury
misconduct.”
VIII. City’s motion for judgment notwithstanding the verdict
(JNOV)
On December 23, 2019, the City filed its JNOV motion. It
argued, inter alia, that “the evidence introduced at trial
15
established that [Thomas] was not a qualified individual and
could not perform the essential functions of a police officer.”
Thomas opposed the City’s motion.
On February 21, 2020, the trial court denied the City’s
motion. After summarizing the applicable law, the trial court
noted: “First, the [City’s] burden of persuasion is to specify the
evidence received by the jury that identified the essential
functions of [Thomas’s] job. The [City] must specify the evidence
that identifies the essential functions because legal authority
cannot define those essential functions. Each job, even those
with the same employer or category of employer, differs and, as a
result, the [City] must cite to the record to identify these
essential functions.
“Second, if the [City] meets its burden of showing that the
evidence identified the essential functions, the [City] must then
show that the jury received evidence that [Thomas] was not
qualified to perform those identified essential functions and that
there was no substantial evidence that [Thomas] was qualified.
This is necessary to show that a motion for [JNOV] should be
granted on the ground that there was no evidence supporting the
jury’s decision.
“First, the [City] does not specify the evidence in the record
that identified the essential functions of [Thomas’s] position as a
police officer. The [City] directs the Court to no evidence
establishing the essential functions of [Thomas’s] job. In the
reply papers, the [City] argues that the essential functions of a
police officer involve making forcible arrests and controlling and
transporting suspects [citation]. However, it is improper to raise
this argument for the first time in the reply and, as a result, the
[City] cannot rely on this to meet its burden. [Citation.]
16
“Instead, the [City] attempts to meet its burden by focusing
on the evidence that [Thomas] was unable to perform the
essential functions because he ‘was off work and totally disabled’
[citation]. The [City] claims that, since the evidence shows that
[Thomas] was unable to return to work, he was not qualified to
serve as a police officer and, as a result, there can be no
discrimination when it removed its police powers.” In other
words, the City’s “argument is premised on showing that
[Thomas] was totally disabled because he was not released to
return to work.”
The trial court went on to set forth some of the evidence
supporting the inference that Thomas was qualified because he
had been cleared to work, including Dr. Collins’s note, Dr. Sima’s
note, and the e-mail exchange between two police officers
confirming that Thomas had been cleared to return to work.
The trial court concluded: “When viewing the evidence in
the light most favorable to [Thomas], this shows that there was
substantial evidence to support the jury’s finding . . . that
[Thomas] was able to perform the essential job duties, i.e., that
[Thomas] was a qualified individual. As a result, this is not
grounds to grant a [JNOV] in [the City’s] favor.”
IX. Thomas’s motion for attorney fees
A. Motion and opposition
On February 10, 2020, Thomas moved for attorney fees
pursuant to Government Code section 12965, subdivision (b). He
sought $3,081,273 and a multiplier of 1.75.
The City opposed Thomas’s motion. In support, the City
offered an expert declaration from Gerald G. Knapton (Knapton).
He opined that Thomas’s counsel “should not be allowed any fee
recovery at this stage of the proceedings because they have not
17
explained the circumstances such that . . . the total fees they seek
to have awarded to them would not be ‘unconscionable’ and in
violation of the Rules of Professional Conduct, Rule 1.5.”
“However, if the Court finds that the conditions necessary for an
award are satisfied, then it is my opinion that reasonable fees are
no more than $357,089.45.”
B. Trial court order
In a 20-page order, the trial court granted Thomas’s motion
for attorney fees. Its detailed order sets forth the legal
standards, including a summary of the lodestar method.
Thereafter, it assessed Thomas’s motion, finding that he “met his
burden of demonstrating that the hourly rates sought for his
attorneys [were] reasonable.” However, it reduced the number of
hours requested, ultimately awarding a reduced amount of
$1,849,330.
In so ruling, the trial court systematically addressed each
of the City’s challenges. For example, the trial court rejected the
City’s attempt to characterize Thomas’s success as moderate,
specifically noting that after 10 years of litigation, Thomas was
awarded $1,014,000 in compensation for the City discriminating
against him. “To qualify [Thomas’s] success as moderate is
fallacious.”
After establishing the lodestar amount, the trial court
turned its attention to whether a multiplier should be applied.
After summarizing and analyzing the relevant factors to
determine whether a multiplier was appropriate, the trial court
found that a 1.25 multiplier was appropriate. “The multiplier
reflects the fact that counsel undertook a considerable amount of
risk in litigating [Thomas’s] case and their ultimate success in
18
doing so. A modest enhancement of 1.25 times the lodestar
amount will give effect to the purposes underlying the FEHA.”
Ultimately, the trial court awarded Thomas a total of
$2,311,662.50.
X. Appeal
The City’s timely appeal from the judgment, the posttrial
motions, and the costs award ensued.
DISCUSSION
I. Thomas presented a prima facie case of disability
discrimination
The City challenges the judgment of disability
discrimination against it in two manners: (1) The trial court’s
order denying its JNOV motion; and (2) The jury verdict.
A. Standards of review
The parties dispute the appropriate standard of review.
According to the City, whether Thomas presented a prima facie
case is a question of law.
“Recent decisional law is replete with the statement that in
order to establish a prima facie case for [disability]
discrimination . . . , the plaintiff must prove he was qualified for
the position. [Citations.]” (Quinn v. City of Los Angeles (2000)
84 Cal.App.4th 472, 480, italics added (Quinn).)
“‘Care must be taken in distinguishing between the “prima
facie” elements of a claim for employment discrimination and the
“essential” elements of the same case which the jury must decide.
[¶] ‘Whether a plaintiff has met his or her prima facie burden
and whether or not the defendant has rebutted the plaintiff’s
prima facie showing, are questions of law for the trial court and
not questions of fact for the jury. [¶] ‘The prima facie burden
that rests upon plaintiff will depend on the facts. For example, if
19
the adverse decision is a failure to hire or promote, the plaintiff
has as part of his or her prima facie case, the burden of producing
evidence that he or she was qualified for the employment or the
promotion.’” (Quinn, supra, 84 Cal.App.4th at p. 481.)
As applied to the issues in the instant case, in order to
establish a prima facie case, Thomas was required to present
evidence that he was qualified to perform the essential functions
of a police officer. If he failed to present that evidence, then he
would not have satisfied his burden of presenting a prima facie
case as a matter of law. However, if he presented evidence that
he was qualified, the question becomes whether that evidence is
sufficient. We review sufficiency of the evidence claims for
substantial evidence if the facts are disputed and de novo if the
facts are undisputed. (Ellins v. City of Sierra Madre (2016)
244 Cal.App.4th 445, 452.)
“‘Where findings of fact are challenged on a civil appeal, we
are bound by the “elementary, but often overlooked principle of
law, that . . . the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,” to support the findings
below. [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative
Services USA, Inc. (2020) 46 Cal.App.5th 1007, 1015.)
“‘“In applying this standard of review, we ‘view the
evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference and resolving
all conflicts in its favor . . . .’ [Citation.]” [Citation.]
“‘Substantial evidence’ is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid
value.” [Citation.] We do not reweigh evidence or reassess the
credibility of witnesses. [Citation.] We are “not a second trier of
20
fact.” [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative
Services USA, Inc., supra, 46 Cal.App.5th at p. 1015.)
That said, “‘[q]uestions of statutory interpretation, and the
applicability of a statutory standard to undisputed facts, present
questions of law, which [we review] de novo.” (Lui v. City and
County of San Francisco (2012) 211 Cal.App.4th 962, 969 (Lui).)
“On appeal from the denial of a JNOV motion, an appellate
court must review the record de novo and make an independent
determination whether there is any substantial evidence to
support the jury’s findings. [Citations.]” (Hirst v. City of
Oceanside (2015) 236 Cal.App.4th 774, 782.) In other words, “[a]
motion for [JNOV] may be granted only if it appears from the
evidence, viewed in the light most favorable to the party securing
the verdict, that there is no substantial evidence in support.
[Citation.] [¶] . . . As in the trial court, the standard of review is
whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion. [Citations.]”
(Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th
62, 68.)
B. Relevant law
To establish a prima facie case of physical disability
discrimination under FEHA, the employee must demonstrate
that he is disabled and otherwise qualified to do the job and was
subjected to an adverse employment action because of such
disability. (King v. United Parcel Service, Inc. (2007)
152 Cal.App.4th 426, 432–433, fn. 2.) The employee must
establish that he is a “qualified individual,” i.e., an employee who
can perform the essential functions of the job with or without
reasonable accommodation. (Green v. State of California (2007)
42 Cal.4th 254, 260–261.)
21
Government Code section 12926, subdivision (f), defines the
phrase “‘Essential functions’”: “‘Essential functions’ means the
fundamental job duties of the employment position the individual
with a disability holds or desires. ‘Essential functions’ does not
include the marginal functions of the position. [¶] (1) A job
function may be considered essential for any of several reasons,
including, but not limited to, any one or more of the following: [¶]
(A) The function may be essential because the reason the position
exists is to perform that function. [¶] (B) The function may be
essential because of the limited number of employees available
among whom the performance of that job function can be
distributed. [¶] (C) The function may be highly specialized
. . . . [¶] (2) Evidence of whether a particular function is
essential includes, but is not limited to the following: [¶] (A) The
employer’s judgment as to which functions are essential. [¶] . . .
[¶] (C) The amount of time spent on the job performing the
function. [¶] (D) The consequences of not requiring the
incumbent to perform the function. [¶] . . . [¶] (G) The current
work experience of incumbents in similar jobs.” (Gov. Code,
§ 12926, subd. (f).)
“‘Whether a function is essential is evaluated on a case-by-
case basis by examining a number of factors.’” (D’Angelo v.
Conagra Foods, Inc. (11th Cir. 2005) 422 F.3d 1220, 1230.) This
determination is “highly fact specific.” (Hoskins v. Oakland
County Sheriff’s Dept. (6th Cir. 2000) 227 F.3d 719, 726; see also
Lui, supra, 211 Cal.App.4th at p. 971.)
C. Analysis
On appeal, the City does not challenge the jury’s findings
that Thomas suffered a disability and that he suffered an adverse
employment action. Rather, the only issue is whether Thomas
22
was a qualified individual who could perform the essential
functions of his job. In raising this challenge, the City seems to
be making a factual argument (i.e., there is no evidence that
Thomas could perform the essential functions of his job) and a
legal argument (i.e., pursuant to statute and case law, Thomas
could not perform the essential functions of a police officer as a
matter of law). We address each in turn.
1. Factual argument
As aptly noted by the trial court in its order denying the
City’s JNOV motion, Thomas presented substantial evidence that
he was a qualified individual able to perform the essential
functions of his job. There was evidence presented at trial that
Thomas was cleared to return to work. Dr. Collins and Dr. Sima
both cleared Thomas to return to work in Spring 2009. From
Dr. Wilson’s expert testimony, the jury could reasonably infer
that Thomas could have returned to work. And, Dr. Jackson, an
orthopedic surgeon, signed a workers’ compensation document
authorizing Thomas to return to work as a police officer as of
August 14, 2009. Even Dr. Cox confirmed that Thomas could
have worked modified duty as an officer in a primarily sedentary
position.
Urging us to conclude otherwise, the City directs us to
contrary testimony from Dr. Cox12 and a note from Dr. Yuan, who
12
The jury was properly instructed that it could believe all or
part of an expert and a layperson’s opinion. It was also told that
it could “believe all, part, or none of a witness’s testimony.” (See
People v. Langley (1974) 41 Cal.App.3d 339, 348 [“the trier of fact
may reject a part of the testimony of a witness while believing
other portions of his testimony”].)
23
did not testify at trial, that Thomas was permanently disabled
and unable to perform the duties of a police officer. At best, the
City offers evidence that conflicts from the evidence proffered by
Thomas. And it is well-settled that a conflict in the evidence does
not render it insubstantial. (See Stephens v. County of Tulare
(2006) 38 Cal.4th 793, 804; People v. Lawson (1952)
114 Cal.App.2d 217, 219 [“it is not the province of this court to
weigh conflicting evidence”].)
And there was evidence of the essential functions of his job,
functions that Thomas could perform.13 There was ample
testimony that there were light duty options for police officers.
There was an administrative floor that Costley could have
assigned him to. He could have done projects that did not violate
his restrictions. He could have worked in Veenstra’s office. (See,
e.g., Lui, supra, 211 Cal.App.4th at p. 973 [noting that not all
police officer positions exist for the purpose of performing
strenuous duties].)
Not surprisingly, the City directs us to contrary evidence,
including MacArthur’s testimony that, among other things, a
police officer must be able to make forcible arrests, control
suspects, and “transport, book, and handcuff.” But, as Veenstra
testified, Thomas worked in the ARCON/PT unit; he did not have
to make arrests. Given that Thomas worked at ARCON/PT, the
jury could reasonably infer that he did not have to engage in
strenuous physical activities. (Contra, Atkins v. City of
13
During Henderson’s and MacArthur’s testimonies, the City
tried to admit into evidence documents listing the essential
functions of a police officer. Thomas objected to the admission of
these documents, and the trial court sustained the objections.
The City does not challenge these evidentiary rulings on appeal.
24
Los Angeles (2017) 8 Cal.App.5th 696, 718 [evidence established
that the essential functions of a police recruit included rigorous
physical demands].)
In fact, defense counsel highlighted the functions of an
instructor during his closing argument: “He’s an instructor.”
And instructors, who teach, demonstrate, and understand safety,
are “very useful.” Defense counsel said nothing about
MacArthur’s description of the essential functions of a police
officer. Under these circumstances, the jury was free to weigh
the conflicting evidence in making its determination as to what
the essential functions of the job were and whether Thomas could
perform them.14
Certainly Government Code section 1031, subdivision (f),
requires that peace officers “be free from any physical, emotional,
or mental condition that might adversely affect the exercise of the
powers of a peace officer.” In light of the evidence that Thomas
was cleared by his doctors to be a police officer, there is no
violation of this statute.
2. Legal argument
Relying upon Raine v. City of Burbank (2006)
135 Cal.App.4th 1215 (Raine); Lui, supra, 211 Cal.App.4th 962;
and Quinn, supra, 84 Cal.App.4th 472, the City argues that
Thomas did not prove that he could fulfill all of the essential
14
While the City criticizes the trial court for declining to
consider evidence first presented in its reply brief in support of
the JNOV motion, it does not demonstrate, let alone argue, that
the trial court abused its discretion in doing so. (Jay v. Mahaffey
(2013) 218 Cal.App.4th 1522, 1538.)
25
functions of an LAPD officer as a matter of law.15 These cases
are readily distinguishable.
The issue in Raine was whether an employer who
“reassigns an employee to a temporary light-duty position to
accommodate the employee’s injury [has] an affirmative
obligation under [FEHA] to make that temporary light-duty
assignment available indefinitely once the employee’s temporary
disability becomes permanent.” (Raine, supra, 135 Cal.App.4th
at pp. 1217–1218.) The Court of Appeal held that the answer was
no; the permanent accommodation sought by the employee was
unreasonable as a matter of law. (Id. at p. 1218.) That is not the
issue in this case. Thomas is not arguing that the City should
have made permanent the light duty assignment he sought while
recovering from knee surgery.
In Lui, a police officer who had suffered a major heart
attack retired from his position after the police department
“informed him [that] there were no administrative positions
available that did not require him to perform the strenuous
physical activities regularly performed by patrol officers in the
field.” (Lui, supra, 211 Cal.App.4th at p. 965.) The officer filed a
disability discrimination action, and the matter proceeded to a
court trial. (Id. at p. 968.) The trial court found in favor of the
defendant, and the plaintiff-employee appealed. (Ibid.) Thus,
15
While this argument was raised in the City’s motion for a
directed verdict and its JNOV motion, the City never asked that
the jury be instructed that Thomas had to prove he could fulfill
certain physical functions. And, as set forth above, this
argument was not presented to the jury in the City’s closing
argument.
26
“the key issue on appeal [was] whether the record support[ed] the
trial court’s finding that [certain strenuous duties were] essential
functions of the administrative positions sought by [the]
plaintiff.” (Id. at pp. 968–969.) Because the plaintiff-employee
did not demonstrate that the trial court’s finding was
unsupported by the record or contrary to FEHA, the Court of
Appeal affirmed the judgment. (Id. at p. 969.)
Just as in Lui, the issue here is whether the judgment is
supported by substantial evidence. And, as set forth above, it is.
Nothing in Lui stands for the proposition that there are certain
essential strenuous job functions that a plaintiff must prove in
order to establish a disability discrimination claim, particularly
here where the jury was not so instructed.
At best, an officer who is working full duty may be expected
to perform essential strenuous job functions, such as, for
example, the functions identified by MacArthur during her
testimony. But as several witnesses at trial explained, there is a
difference between full duty and light duty assignments. And,
Thomas did not have to return to work full duty. Officers are not
expected to perform like full duty officers when they are on light
duty.
Finally, in Quinn, the plaintiff, who suffered a significant
hearing impairment, was hired as a police officer as the result of
a clerical error. (Quinn, supra, 84 Cal.App.4th at p. 475.) When
his hearing impairment was discovered, his employment was
terminated. (Ibid.) The plaintiff sued on the grounds that his
discharge constituted illegal disability discrimination. After the
defendant’s motion for a directed verdict was denied, the matter
proceeded to trial, and the jury found in favor of the plaintiff.
(Ibid.) The defendant appealed, and the Court of Appeal reversed
27
the judgment on the grounds that the “plaintiff failed to produce
evidence on a critical element of his claim: his qualification to be
hired as a police officer.” (Id. at p. 476.)
The City relies upon Quinn’s statement that the essential
duties of a police officer “is a matter solely to be determined by
the police department itself.” (Quinn, supra, 84 Cal.App.4th at
p. 482.) At the risk of sounding redundant, the parties presented
evidence from LAPD officers as to what those duties were, and
Thomas presented ample evidence that he was qualified to
perform them.
II. Alleged jury misconduct
A. Standard of review and relevant law
Code of Civil Procedure section 657 provides that a verdict
may be vacated and a new trial granted if jury misconduct
“materially affect[s] the substantial rights of [a] party.” (Code
Civ. Proc., § 657.)
“In ruling on a request for a new trial based on jury
misconduct, the trial court must undertake a three-step inquiry.
[Citation.] First, it must determine whether the affidavits
supporting the motion are admissible. [Citation.] If the evidence
is admissible, the trial court must determine whether the facts
establish misconduct. [Citation.] Lastly, assuming misconduct,
the trial court must determine whether the misconduct was
prejudicial. [Citations.] A trial court has broad discretion in
ruling on each of these issues, and its rulings will not be
disturbed absent a clear abuse of discretion.” (People v. Dorsey
(1995) 34 Cal.App.4th 694, 703–704.)16
16
Holdings concerning juror misconduct in criminal cases
may be applied in civil cases. (People v. Hill (1992) 3 Cal.App.4th
28
“[M]isconduct creates a presumption of prejudice which
may be rebutted by a showing that no prejudice actually
occurred.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 255–
256.) “Some of the factors to be considered when determining
whether the presumption is rebutted are the strength of the
evidence that misconduct occurred, the nature and seriousness of
the conduct, and the probability that actual prejudice may have
ensued.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.)
“In determining whether juror misconduct occurred, ‘[w]e
accept the trial court’s credibility determinations and findings on
questions of historical fact if supported by substantial evidence.’
[Citations.]” (People v. Schmeck (2005) 37 Cal.4th 240, 294;
Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th
567, 624–625.)
“‘“It is the trial court’s function to resolve conflicts in the
evidence, to assess the credibility of the declarants, and to
evaluate the prejudicial effect of the alleged misconduct
. . . . However, in reviewing an order denying a motion for new
trial based on jury misconduct, as distinguished from an order
granting a new trial on that ground, a reviewing court has a
constitutional obligation . . . to review the entire record, including
the evidence, and to determine independently whether the act of
misconduct, if it occurred, prevented the complaining party from
having a fair trial. [Citations.]”’ [Citations.] This court must
undertake a de novo review to determine whether there was
misconduct, and, if so, whether that misconduct” was prejudicial
to the appellant and requires reversal of the judgment. (People v.
Cumpian (1991) 1 Cal.App.4th 307, 311.) “Although we
16, 37–38, fn. 8, disapproved on other grounds in People v. Nesler
(1997) 16 Cal.4th 561, 582, fn. 5.)
29
independently review the record upon the denial of a motion for
new trial based on jury misconduct, we still give deference to the
trial court’s discretionary determinations.” (Vomaska v. City of
San Diego (1997) 55 Cal.App.4th 905, 912.)
B. Waiver
As set forth above, the trial court found that the City
waived its jury misconduct objection. This finding is supported
by ample evidence. When the error came to everyone’s attention,
at no time did the City request a mistrial. The City did not object
to the trial court’s instruction that the properly seated jurors
deliberate anew. And, it did not request further instructions
after the trial court gave its instruction to begin deliberations
anew. Not until the jury gave its verdict for Thomas and the City
was dissatisfied with the result did the City file a motion for a
new trial on the grounds of jury misconduct. (See, e.g., People v.
Russell (2010) 50 Cal.4th 1228, 1250; People v. Lewis (2009)
46 Cal.4th 1255, 1308.)
C. Analysis
For the sake of completeness, we turn to the merits of the
City’s argument.
Assuming without deciding that there was jury misconduct,
we agree with the trial court that the presumption of prejudice
was rebutted. When the error was called to the trial court’s
attention, it immediately corrected the error by replacing the
alternate juror with the correct juror and sending the correct
jurors back to the jury room to deliberate, with
Mr. Hernandez’s viewpoint to be considered. We presume the
jury followed the trial court’s instruction, and “there is not the
slightest indication in the record that they were unable to do so.
While the jury reached a verdict fairly swiftly, this fact alone
30
does not tend to show prejudice.” (Brassfield v. Moreland School
Dist. (2006) 141 Cal.App.4th 67, 74.) As the error was not
prejudicial, reversal is not required.
To the extent the City suggests that 13 jurors improperly
deliberated, we disagree. At no time did 13 jurors deliberate.
Before the jury left to deliberate for the first time, the trial court
made clear that only 12 jurors were supposed to make the
decision. There is no reason to think that the jury did not comply
with this direction, either the first time (with the wrong alternate
juror) or the second time (with the correct 12 jurors).
Relying upon Griesel v. Dart Industries, Inc. (1979)
23 Cal.3d 578, 583–584, overruled on other grounds in Privette v.
Superior Court (1993) 5 Cal.4th 689, 696, the City argues that
the trial court committed instructional error because it did not
instruct the jury to disregard prior deliberations. We disagree.
By specifically telling the jurors to “[s]tart all over again and take
a vote again,” that is exactly what the trial court did. (Griesel v.
Dart Industries, Inc., supra, at p. 584; see also People v. Renteria
(2001) 93 Cal.App.4th 552, 558 [jury must be instructed to
disregard all past deliberations and begin deliberating anew];
People v. Odle (1988) 45 Cal.3d 386, 405–406 [“[by] instructing
the jury to ‘start from scratch,’ the court [properly] implied [that]
the jury should disregard previous deliberation”], disapproved on
other grounds in People v. Prieto (2003) 30 Cal.4th 226, 256.)
In any event, “there is no rule of automatic reversal or
‘inherent’ prejudice applicable to any category of civil
instructional error.” (Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 580.) “A defendant must also show that the error
was prejudicial . . . and resulted in a ‘miscarriage of justice’
[citation].” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
31
“[I]nstructional error is prejudicial ‘where it seems probable’ that
the error ‘prejudicially affected the verdict.’ [Citation.]” (Soule v.
General Motors Corp., supra, 8 Cal.4th at p. 580.) “[W]hen
deciding whether an error of instructional omission was
prejudicial, the court must also evaluate (1) the state of the
evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself
that it was misled.” (Id. at pp. 580–581.)
Applying these factors, even if the trial court had erred as
the City asserts, that alleged error was not prejudicial. The
jurors were instructed to “[s]tart all over again.” Throughout the
initial deliberations, Mr. Hernandez was present but silent. But
during the second deliberations, he openly expressed his
viewpoints and opinions while Mr. Bindoy remained quiet. There
is no indication of any error.
III. Attorney fees
A. Standard of review
We review an order granting or denying attorney fees, as
well as the amount of a fee award, for abuse of discretion.
(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th
140, 148.) After all, “‘[t]he “experienced trial judge is the best
judge of the value of professional services rendered in his court,
and while his judgment is of course subject to review, it will not
be disturbed unless the appellate court is convinced that it is
clearly wrong”’—meaning that it abused its discretion.” (PLCM
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
“‘An abuse of discretion occurs only where it is shown that
the trial court exceeded the bounds of reason. [Citation.] It is a
deferential standard of review that requires us to uphold the trial
court’s determination, even if we disagree with it, so long as it is
32
reasonable. [Citation.]’” (Bloxham v. Saldinger (2014)
228 Cal.App.4th 729, 753.) “We will reverse the trial court’s
determination only if we find that ‘in light of all the evidence
viewed most favorably in support of the trial court, no judge could
have reasonably reached a similar result.’” (Bates v. Presbyterian
Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.)
In other words, “[w]e presume the fee approved by the trial court
is reasonable.” (Karton v. Ari Design & Construction, Inc. (2021)
61 Cal.App.5th 734, 743.)
The burden is on the party seeking attorney fees to prove
that the fees it seeks are reasonable. (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 98.) It is also the
appealing party’s burden to prove that the trial court abused its
discretion. (Ibid.)
B. Relevant law
The fee setting inquiry in California ordinarily begins with
the “lodestar,” namely the number of hours reasonably expended
multiplied by the reasonable hourly rate. (PLCM Group, Inc. v.
Drexler, supra, 22 Cal.4th at p. 1095.) “‘After the trial court has
performed the calculations [of the lodestar], it shall consider
whether the total award so calculated under all of the
circumstances of the case is more than a reasonable amount and,
if so, shall reduce the [Civil Code] section 1717 award so that it is
a reasonable figure.’” (PLCM Group, Inc. v. Drexler, at pp. 1095–
1096.) In determining “reasonable” compensation, trial courts
must carefully review attorney documentation of hours expended;
“padding” in the form of inefficient or duplicative efforts is not
subject to compensation. (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132.)
33
In adjusting the lodestar figure, the trial court makes its
determination after consideration of a number of factors,
including the nature of the litigation, its difficulty, the amount
involved, the skill required in its handling, the skill employed,
the attention given, the success or failure, and other
circumstances of the case. (Melnyk v. Robledo (1976)
64 Cal.App.3d 618, 623–624.) Our Supreme Court has never
“carved the factors used [to calculate the lodestar] into concrete
or barred consideration of other relevant and nonduplicative
factors; nor have the courts of appeal sought to do so.” (Lealao v.
Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 40,
fns. omitted.)
The value of legal services performed in a case is a matter
in which the trial court has its own expertise. (Melnyk v.
Robledo, supra, 64 Cal.App.3d at p. 623.)
C. Analysis
The City has not met its burden of demonstrating that the
trial court abused its discretion. The trial court reduced the fee
award from the requested amount ($3,081,273) to the lodestar
amount ($1,849,300) and then applied a 1.25 multiplier to arrive
at a total of $2,311,662.50. Its reasons for doing so are more than
sufficiently explained in its detailed order.
1. Alleged fees related to the 2014 mistrial
Relying upon Knapton’s expert declaration, the City argues
that the trial court erroneously awarded Thomas fees incurred in
connection with the 2014 trial that ended in a mistrial. Because
the mistrial was the result of Thomas’s counsel’s “malfeasance,”
counsel should not be entitled to recoup these fees.
While the trial court seems to have rejected this legal
argument in its order, the City cannot establish that these fees
34
were actually awarded to Thomas. “‘[I]t is incumbent on the
party who is dissatisfied with the court’s calculation of the
number of allowable hours to request specific findings.’” (Taylor
v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1250.) But
the City failed to request specific findings; thus, the City cannot
conclusively establish, and we cannot find, that any fees that
arguably should not have been awarded were in fact awarded.17
2. Fees related to the Thomas II claims
The City further argues that Thomas cannot recover fees
for the 110.6 hours involving the Thomas II motion to dismiss
and 371.9 hours regarding “events and proceedings” exclusively
directed at Thomas II.
Again, due to the lack of specificity in the trial court’s
order, the City cannot demonstrate that Thomas was awarded
attorney fees for hours expended regarding Thomas II. All we
know is that the trial court did award plaintiff a reduced fee
award given his success on his disability discrimination claim
approximately 10 years after he suffered his knee injury.
3. Multiplier
The City argues that the trial court erred in applying a
multiplier to the lodestar figure. We find no abuse of discretion.
In awarding attorney fees, the trial court expressly relied upon
Ketchum v. Moses, supra, 24 Cal.4th at page 1132, which
reaffirmed that a trial court may employ a multiplier “based on
17
In its reply brief, the City acknowledges that the trial
“court reduced hours to the total fee award to 60% of the hours
requested with only a couple of small exceptions.” Because of
“the global reduction in fees,” the City asks that “the specific fees
addressed [in its appeal be] similarly reduced.” For the reasons
set forth herein, we decline to do so.
35
factors including . . . the extent to which the nature of the
litigation precluded other employment by the attorneys” and “the
contingent nature of the fee award.” (Ketchum v. Moses, supra, at
p. 1132.) It then went on to explain why those two factors
weighed heavily here, including the fact that Thomas’s “counsel
expended resources in this matter without receiving any
compensation for over ten years.” Because Thomas demonstrated
that counsel “took on a considerable degree of risk by litigating
this case on a contingency basis” and “advanced costs and spent a
lot of time on the case while deferring any compensation and
risking no compensation,” it awarded a reduced multiplier of
1.25, largely because of “the contingency nature of the
representation.”
There was no abuse of discretion.
DISPOSITION
The judgment and order are affirmed. Thomas is entitled
to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
36