Petition for Writ of Certiorari — U. A. Local 38 Convalescent Trust Fund v. Braden

Supreme Court, U.S.

FIL £&D

92-556 SEP 28 1992

OFFICE OF AMIE CLERK

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

U.A. LOCAL 38 CONVALESCENT TRUST FUND, ESTATE OF

JOSEPH P. MAZZOLA, and ARISTOCRAT HOTELS, INC.,

Petitioners,

VS.

CAROLE BRADEN, JUANITA RAYMOS, CHRISTINE

CHRAPOWICZ and WANDA BROOKS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH L. ALIOTO LAWRENCE ALIOTO

650 California Street, Suite 2500 465 California Street

San Francisco, CA 94108 Suite 736

(415) 434-2100 San Francisco, CA 94104

Attorney for U.A. Local 38 (415) 399-0533

Convalescent Trust Fund Counsel of Record and

PETER P. MACHI erny pr ae

Petitioners

246 Van Ness Avenue

San Francisco, CA 94102

(415) 621-1501

Attorney for Estate of

Joseph P. Mazzola

BOWNE OF SAN FRANCISCO. INC + 190 NINTH ST. + SF. CA 94103 + (415) 864 2300

QUESTIONS PRESENTED

1. In a non-diversity case removed from California Supenor

Court, did the U.S. District Court abuse its discretion in failing to

remand the case to state court after all federal claims and causes

of action had been voluntarily dismissed, at which point, over a

year before trial, the District Court’s participation in the case had

been insubstantial, but after which point the Court formed a class,

ruled on dispositive motions and tried the case with a jury?

2. Did the U.S. District Court properly grant summary jud -

ment of discriminatory and retaliatory non-rehiring under Califc -

nia Government Code 12940(f) to one who did not apply {or

rehiring? Was the District Court free at trial to retreat from his

summary judgment ruling in this connection?

3. Did the U.S. District Court properly direct a verdict of

gender discrimination under California Government Code 12940

where the record contained substantial evidence that the allegedly

favored employees were better qualified than plaintiffs for the

work in question?

4. Where the amount of lost wages damages found by the jury

was several times greater than what the evidence would support,

and there was reliable evidence that the verdict of lost wages and

tips was made on the jury’s assumption that all waitpersons

underreport their tips, as to which assumption there was no

evidence in the record, should the U.S. District Court have

granted a new trial on the issue of lost wages damages?

5. In fixing attorney fees and costs of $619,700 in respect of

the services of two young lawyers (2000 hours at $170 equals a

lodestar of $340,000, enhanced by a multiplier of 1.75 for an

additional $255,000, plus $16,200 for work on the fee application

and $8,500 in costs, totalling $619,700), did the U.S. District

Court abuse its discretion in:

a. Denying petitioners’ request for discovery of the fee

agreement between plaintiffs and their counsel?

b. Denying petitioners’ request for discovery of plain-

tiffs’ attorneys’ orginal time records, and instead relying

completely for the finding of hours-worked on recently pre-

pared hearsay summanes, in a case in which plaintiffs lost

the verdict and judgment on substantial portions of their

claims, including the class action and age discnmination?

6. Does the “no-enhancement” rule of City of Burlington v.

Dague U.S. ___, 112 S. Ct. 2638 (June 24, 1992) apply

only where the night to fees is granted by a federal statute, or does

it also apply in federal court when the right to fees is granted by a

state statute?

List of Parties

Plaintiffs and Defendants and

Respondents Petitioners

Carole Braden U.A. Local 38 Convalescent

Juanita Raymos Trust Fund

Chnstine Chrapowicz Estate of Joseph P. Mazzola

Wanda Brooks Aristocrat Hotels, Inc.

Anstocrat Hotels, Inc. has no affiliates, parents or subsidianes.

It is a closely held Colorado corporation engaged in hotel man-

agement, with its principal place of business in San Francisco.

ill

TABLE OF CONTENTS

et a4 44k a eke es toad Mu eans aa wens

NE SSR ge eR a Ps

INGA CLAMS Ga eee ab dis de Kaha ke we

re ee Seka De bh an aee ch Chea we ene

Pendent Jurisdiction. The District Court’s retention of

jurisdiction in this case after all federal claims had been

voluntarily dismissed early in the case involves important

issues touching this Court’s supervision of the business of

Pan me

II

Interlocutory Summary Judgment. This case presents

important issues regarding the interpretation of Rules

54(b) and 56 of the Federal Rules of Civil Procedure. . .

ill

Proof of Discrimination. In directing a verdict on the

central issue of the case, discrimination, which is almost

always an issue of fact, the District Court ignored the

guidelines for proof of discnmination which this Court set

in McDonnell Douglas Corporation vs. Green, 411 U.S.

792 (1973) and Texas vs. Burdine, 450 U.S. 257 (1981).

IV

New Trial. The trial judge’s historic duty to set aside an

excessive verdict, one not supported by the evidence,

te, crew i ws n'y Wea RACER OD

10

1]

12

13

1V

TABLE OF CONTENTS

Page

Vv

Attorney Fees.

A. Discovery of the Fee Agreement Between Plaintiffs

and Their Counsel. For the guidance of parties in

applications under fee-shifting statutes, this Court

should announce a rule that the terms of any fee

agreements between plaintiff and plaintiff's counsel

are always a relevant consideration on the setting of

fees. The unpublished decisions of both lower courts

in the present case conflict with the decisions of the

D.C. Circuit (Nat'l Assn of Concerned Veterans v.

Sec of Defense 675 F.2d 1319, 1328 (1982) and the

Third Circuit (Sullivan v. Crown Paper Board Co.

719 F.2d 667, 668-9 (1983) on this subject. They also

conflict with statements of this Court in Pennsylvania

v. Delaware Valley Citizens Council 483 U.S. 711

(1987) and in Blanchard v. Bergeron 489 U.S. 87

(1989). There is a conflict among the circuits on the

role and treatment of fee agreements in statutory fee

determinations. See cases cited in Hamner vy. Rios,

769 F2d 1404 (9th Cir. 1985). .................. 13

B. Discovery of Plaintiffs Counsel's Original Time

Records. For the guidance of parties in applications

under fee shifting statutes, this Court should hold that

Original contemporaneous records of hours worked

must at least be available for the opposing parties’

inspection before the Court can consider recently

prepared summaries of those records, expecially

where the fee applicant has been unsuccessful in large

Ee I kos cd eee Ra OAS Wo Cee eka ees 16

VI

Application of this Court's Holding in City of Burlington v.

Dague U.S. ___,, 112 S.Ct. 2638 (June 24, 1992).

In Ackerman v. Western Electric Co. Inc. 643 F. Supp.

836, affd 860 F.2d 1514 (9th Cir. 1988), the District

TABLE OF CONTENTS

Court addressed the very issue presented by this case,

whether under Eric v. Tompkins 304 U.S. 64 (1938)

federal or state law is applied in determining the method

of computing the amount of fees due in federal court

under a state statute, California Govt. Code 12465(b), the

same state statute involved in the present case. The Court

there notes a division among the circuits on that issue, and

the fact that that issue has never been cleariy decided.

Ackerman v. Western Elec. Co. Inc., supra, 643 F. Supp.

BI SSP COUR GA SWUEs 6 ioc d cesses ravecenceas 17

Conclusion

vi

TABLE OF AUTHORITIES

Cases

Puge

Ackerman v. Western Electric Co. Inc. 643 F.Supp. 836,

od. 960 F.20 (S146. (90h Cie. TOGBR). . 0. eee ec ecces iv

Blanchard v. Bergeron 489 U.S. 87 (1989)............. iv, 13

Blum v. Stensen 465 U.S. 886 (1984).................. 17

Carnegie-Mellon Univ. v. Cohill 484 U.S. 343 (1988) .... 11

Celotex v. Catrett 477 U.S. 317 (1986) ................ 1]

City of Burlington v. Dague US. any 112 S.A. 2658

( We DA TOO 4.6 sbvda Cia beck wes es eamea cease ce rsan li, iv

City of Riverside v. Rivera 477 U.S. 561 (1988) ......... 13

Continental Ore v. Union Carbide 370 U.S. 690 (1962) .. 13

Department of Fair Employment and Housing v. Cairo CEB

Reports of the FEHC, No. 84-04 (1984) ............. 17

Ene v. Tompkins 304 U.S. 64 (1938) ...... 2... ccceces iv, 17

Hamner v. Rios 769 F.2d 1404 (9th Cir. 1985) .......... iv

Hensley v. Eckerhart 461 U.S. 424 (1981).............. 16

Lingle v. Norge 486 U.S. 399, 108 S.Ct. 1877 (1988) .... 6

McDonnell Douglas Corporation v. Green 411 U.S. 792

CISTEY auc écnacnka Seneca ce eee eee lil

Nat'l. Ass'n. of Concerned Veterans v. Sec. of Defense 675

wok Biriegis 8) eee iv, 15, 16, 17

Pennsylvania v. Delaware Valley Citizens Council 483 U.S.

FEe LIBS o4xcacdccerpa bens sbewee centres eecbes iv, 10

SOE V. CARO Te Te RE cok bt ta cas bo eeereenuce 17

Stephens v. Coldwell Banker 199 Cal.App.3d 1394 ....... 13

Sullivan v. Crown Paper Board Co. 719 F.2d 667 (3rd Cir.

FOESD 6 iv vcs knncddcanoee heer eee eae ees eee iv, 15

Sundance v. Municipal Court 192 Cal.App.2d 269 (1987) =(17

Texas v. Burdine 450 U.S. 257 (1981) ................. ill

Statutes and Rules

California Government Code 12465(b) ................. iv

California Government Code 12940 .................. i, 2, 11

California Government Code 12940(f) ................. i

Federal Rules of Civil Evidence 1006 .................. 16

Federal Rules of Civil Procedure 54(b) ............... iii, 12

vu

TABLE OF AUTHORITIES

STATUTES AND RULES

Page

Federal Rules of Civil Procedure 56 ................... ill

Judicial Improvements Act of 1990 (Pub. L. 101-650) 28,

[foils SS RE ae PEA SE SD et SNP Lan SARE 11

Labor Management Relations Act of 1947, 61 Stat. 156, 29

ee odd teen ee CARER DSSS ROEE OES 2

ee ec wk Wawa ee aed Ree eke Bea 2

pe oR ee ee era ee re rere ee 2

Other Authority

Wigmnere GR Evacenes, FTZO .. nn cs cee ce eccccceen 16

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

U.A. LOCAL 38 CONVALESCENT TRUST FUND, ESTATE OF

JOSEPH P. MAZZOLA, and ARISTOCRAT HOTELS, INC.,

Petitioners,

VS.

CAROLE BRADEN, JUANITA RAYMOS, CHRISTINE

CHRAPOWICZ and WANDA BROOKS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners above-named respectfully pray that a writ of certio-

rari issue to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit, entered in the above-

entitled proceeding on June 24, 1992.

OPINION BELOW

The opinion contains a notation that disposition is not appropri-

ate for publication. The opinion is reprinted in the appendix

hereto, p. la, infra. The Order on Petition for Rehearing is

included in the Appendix at p. Ib.

JURISDICTION

All four plaintiffs — Braden, Raymos, Chrapowicz, and Brooks

— were waitresses at the Konocti Harbor Inn, a Lake County,

California hotel and resort owned by petitioner UA Local 38

2

Plumbers and Pipefitters Convalescent Trust Fund. The four

plaintiffs were all members of the Hotel, Motel and Restaurant

Employees and Bartenders Union, Local 18. At all times perti-

nent hereto there was a collective bargaining agreement in effect

between Local 18 and Konocti Harbor Inn.

In 1986 plainuffs were denied continued employment in the

Konocti Harbor Inn dining room. In 1987 three of the plaintiffs

were not rehired at Konocu, and a fourth did not apply. Having

pursued the administrative steps required by the California Fair

Employment and Housing Act, California Gov't Code 12940 et

seq., the plaintiffs filed the present case on November 17, 1987 in

Lake County, California Superior Court. The complaint alleged

violations of California’s anti-employment discrimination statute

but also alleged several causes of action — wrongful discharge in

breach of plaintiffs’ contractual nghts, breach of implied covenant

of good faith and fair dealing, discharge in violation of public

policy, negligent infliction of emotional distress — which required

interpretation of the collective bargaining agreement between

Local 18 and Konocti Harbor Inn. These petitioners therefore

removed this case to the Federal District Court in San Francisco

under 28 U.S.C. 1441(a), on the ground that the above-refer-

enced causes of action implicating the collective bargaining

agreement were within the orginal jurisdiction of the federal

district courts under 301(a) of the Labor Management Relations

Act of 1947, 61 Stat. 156, 29 U.S.C. 185(a). After jury tial in

federal court, the U.S. District Court entered judgments totalling

$311,949, apportioned among the four waitresses. After a hearing

on attorney fees, the Court awarded plaintiffs $619,700 in fees

and costs, costs representing only $8,500 of that total. Petitioners

appealed to the Ninth Circuit, which affirmed on June 24, 1992.

A petition for rehearing was denied on August 21, 1992.

The jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. 1254(1).

nin peneeeenaneaeaeaaiimanaiaia Nina iii

3

STATUTES INVOLVED

California Fair Employment and Housing Act, Government

Code Section 12940

Sec. 12940. Employers, labor organizations, employment

agencies and other persons; unlawful employment practices;

exceptions

It shall be an unlawful employment practice, unless based upon

a bona fide occupational qualification, or, except where based

upon applicable security regulations established by the United

States or the State of California:

(a) For an employer, because of the race, religious

creed, color, national ongin, ancesiry, physical handicap,

medical condition, marital status, or sex of any person, to

refuse to hire or employ the person or to refuse to select the

person for a training program leading to the employment, or

to bar or to discharge the person from employment or from a

training program leading to employment, or to discriminate

against the person in compensation or terms, conditions or

privileges of employment.

= * e

(f) For an employer, labor organization, employment

agency, or person to discharge, expel, or otherwise discrimi-

nate against any person because the person has opposed any

practices forbidden under this part or because the person has

filed a complaint, testified, or assisted in any proceeding

under this part.

California Government Code Section 12965(b)

as m *

In actions brought under this section, the court, in its discretion

may award to the prevailing party reasonable attorney fees and

costs.

4

STATEMENT OF THE CASE

For years the four plaintiffs had worked as waitresses at

Konocti Harbor Inn. Konocti usually closed in the winters. In the

spring the plaintiffs would work in the coffee shop. When business

picked up, the dining room would open and they worked in there.

In the fall the dining room closed and the plaintiffs would retum

to the coffee shop until the resort closed.

The dining room served standard American fare. Food was

prepared in the kitchen and there put on the customer's plate.

There was no tableside preparation of food.

Tie dining room always lost money. In 1986 Konocti manage-

ment decided to remodel the dining room and to change the menu

and wine list completely. The new menu, in Italian with transla-

tions, contained some 40 items of Northern Italian cuisine and

was the same as that which had had some success in a Palm

Springs, California restaurant called the Marquis. Konocti hired

the head chef from the Marquis, one Pirro, and Pirro brought

with him to Konocti a maitre’d and waiter who had worked at the

Marquis. They then proceeded to hire Italian waiters from San

Francisco and Los Angeles to round out the staff. All of them

were males.

In May of 1986 Konocti management told the four plaintiffs

there was not enough time to train them in the new menu, which

required tableside preparation cf almost all items, including

preparation of sauces. Konocti management told plaintiffs they

cou.d work in the coffee shop in the 1986 season. Three of them

did that, and the other, Braden, left Konocti to work elsewhere.

In June of 1986 three of the plaintiffs — all but Braden — filed

complaints with the California Department of Fair Employment

and Housing. Konocti and Mazzola, who until his death in

August of 1989 had been the head of Local 38 for 30 years, were

named as respondents. In 1987, when these three women reap-

plied for work at Konocti, they were tured down. Braden did not

file a DFEH complaint in 1986 and did not apply for work at

Konocu in 1987.

5

Turned down at Konocti in the spring of 1987, the three women

found work elsewhere. In August of 1987, Henri Lewin, whose

company, Petitioner Anstocrat Hotels, Inc. had a management

contract at Konocti in 1987 and 1988, offered all four women

their jobs in the dining room back, the Italian cuisine policy

having been abandoned after 1986. Raymos and Chrapowicz

chose not to come back to Konocti. Braden and Brooks returned

to work there in 1988 and 1989 before quitting.

In 1986 working in the coffee shop at Konocti, Raymos,

Chrapowicz and Brooks made as much or more money in wages

and ups than did most of the waiters working in the dining room

in 1986. In 1986 working in the coffee shop Raymos made more.

money than she had made in 1985 working in the dining room.

The 1987 wages and tps of plaintiffs from employment in other

restaurants were only slightly less than wages and tips of waitper-

sons working in the Konocti dining room in that year. Plaintiffs’

lost wages and tips damages were not great.

After Braden filed a DFEH complaint in September of 1987

and obtained a mght-to-sue letter, this case was filed in Lake

County Superior Court in November of 1987.

There is no diversity jurisdiction in this case, all parties being

ciuzens of California.

After removal to federal court, plaintiffs filed a First Amended

Complaint, seeking to delete all causes of action which conferred

federal junsdiction under section 301(a) of the Labor Manage-

ment Relations Act. They so informed the District Court on their

motion for remand, which was opposed by these Petitioners. The

Court denied remand. Plaintiffs then filed a Second Amended

Complaint, adding a 301(a) cause of action against their union,

Local 18, for breach of duty of fair representation. They also

inserted in their basic Cal. Gov't Code 12940 discrimination

cause of action an allegation that defendants had violated the

collective bargaining agreement. Nothing ever came of the allega-

tions pertaining to the collective bargaining agreement. The

collective bargaining agreement contained a grievance procedure

which plaintiffs never pursued.

6

On June 8, 1988 this Court decided Lingle v. Norge 486 U.S.

399, 108 S.Ct. 1877 (1988), holding that the assertion of non-

waivable statutory rights is not the basis of 301(a) junsdiction,

even though the same facts which show infringement of those

rights might also show breach of a collective bargaining agree-

ment. Shortly thereafter, in October of 1988, plaintiffs announced

that they had settled with Local 18. This left in the case only

California Government Code claims. Trial was still a year and a

half away.

In March of 1989 plaintiffs moved for certification of a class.

The Court certified a class of all present and former female

employees of Konocti. Notice was sent to the class members and

a class of about 350 women was closed. On the trial the jury

found in favor of defendants on the issue of class-wide discrimina-

tion, the evidence clearly demonstrating substantial representa-

tion of women in all seventeen departments of Konocti, the 1986

dining room waiter crew being the lone exception.

In November of 1989 plaintiffs moved for summary judgment

on the issues of 1986 discrimination and 1987 retaliation for the

DFEH filings. Judge Legge denied the motion on the first ground,

later changing his mind and directing a verdict on that issue for

plaintiffs at trial. On the second matter, 1987 non-rehiring of the

plaintiffs who in June of 1986 had filed DFEH complaints, these

petitioners filed no opposition and the motion was granted. It was

also granted, however, over Petitioners’ opposition, as to Braden,

who had neither filed a DFEH complaint in 1986 nor applied for

work at Konocti in 1987.

Jury trial started in June of 1990. There was received in

evidence without objection and without qualification plaintiffs’

Exhibit 15. This was Konocti’s 13 page agency response to the

three plaintiffs’ 1986 DFEH complaints. It set forth the reasons

why in managment’s opinion the 1986 dining room waiters were

better qualified than each of the plaintiffs to serve the 1986 menu.

At trial Ted Hudson, a 1985 dining room waiter who was retained

in the dining room in 1986, testified that he had operated his own

Italian restaurant for several years, that tableside preparation of

the items on the 1986 menu required years of experience, that

serving the 1986 menu required skills and knowledge not required

7

for serving the 1985 menu, and that one of plaintiffs, Wanda

Brooks, needed training in the use of a tableside cooking device

known as a gueridon. Another 1986 dining room waiter, Di Pietro,

testified that he attended a hotel and restaurant school in Italy for

three years, and worked in restaurants there for ten years, before

coming to the United States. Judge Legge curtailed evidence

from Di Pietro concerning specific examples of tableside prepara-

tion of sauces and other tableside blending of ingredients, having

already announced without a motion from plaintiffs that he

intended to direct a verdict for plaintiffs on the issue of discrin i-

nation. Di Pietro testified that he worked with plaintiffs in tie

dining room when the place was crowded, that then there was :i0

tableside preparation, that in his opinion plantiffs were not quaii-

fied to serve the 1986 menu and that there was not enough time to

train them for the 1986 season. A waitress at Konocti, Marjorie

Wright, testified that in her opinion it would take a month and

one half to two months to learn how to serve the 1986 menu.

The trial judge instructed the jury to find against Konocti and

Anstocrat and in favor of all four plaintiffs on the only two

liability issues in the case: 1986 discrimination and post-1986

discriminatory non-rehiring and retaliation. While these defend-

ants conceded liability for 1987 post-DFEH complaint non-

rehiring of three plaintiffs, and that condition prevailed only from

April of 1987 until the three plaintiffs were offered their jobs back

in August of 1987, all other matters as to which Judge Legge

directed a verdict were contested and presented issues for the

jury.

Chief among these was the Court’s instruction that defendants

illegally retaliated against Carole Braden in 1987, when Braden

did not even reapply for employment in that year.

The jury was asked to find whether Mazzola had participated in

the violations which the Court directed the jury to find, and the

jury found that he did.

Ted Hudson was the top wage and tp earner in the Konocti

dining room in 1986 and 1987, reporting a total of only $16,700

for both years. Juanita Raymos reported wages and tps of

$13,050 in those two years. Yet the jury awarded Raymos $13,200

8

for lost wages and tips in those two years. It did this by adding to

the difference between Hudon’s and Raymos’ 1986-1987 earnings

an amount equal to 15% of the dining room gross receipts for

those years (the 15% equaled $60,300) and giving Raymos 16%

of that $60,300, i.e. $9,650. This latter calculation has no bearing

on Raymos’ losses of wages and tips. As appears, in Raymos’ case

it resulted in an illegal enhancement of $9,650. Chrapowicz made

$14,200 in wages and tips in 1986 and 1987, against Hudson's

$16,700 but the jury enhanced her damages of $2,500 by award-

ing her 32% of the $60,300, an additional $19,300. The enhanc :-

ment which the jury awarded to Brooks for 1986-87 was the sar e

$9,650 which it awarded to Raymos, but in Braden’s case tie

enhancement was $21,700 for those two years, i.e. the jury

awarded Braden 36% of the $60,300 amount.

Braden and Brooks worked at Konocti in 1988 and 1989 but

contended they were discriminated against in those years, in the

matter of work assignment, due to their pnor DFEH complaints.

The trial judge over the competent countervailing evidence of

Marjorie Wnght, who was Brooks’ and Braden’s supervisor,

instructed the jury so to find. The best dining room wage and tip

earner in 1988 was Robert Susumilch and in 1989 Bonnie

Crummer. Their combined wages and tips for those two seasons

were about $22,000. Brooks’ reported 1988 and 1989 earnings

were $11,150. Instead of allowing as lost wages and tips for those

two years only the difference of $10,850, the jury enhanced the

$10,850 by $9,690, being tctal dining room gross times 15%

(which in 1988-89 was $53,840) times 18%, which the jury

believed Brooks would have received. Finally, in 1988 and 1989

Braden reported $17,540 in wages and tips compared to the top

earnings of $22,000. Her true damages for loss of wages and tips

were $4,460. To this the jury added $11,843, being 22% of the

1988-89 amount of $53,840.

The enhanced wage loss figures were brought to the attention of

the trial judge on motion for new tnal, but he declined to grant

any remittitur or other relief. The Court entered judgmeat for

plaintiffs in the total amount of $311,949. The judgment included

$35,000 to each plaintiff for emotional distress and a $50,000

punitive damage award against Konocti.

9

Plaintiffs then moved for attorney fees, seeking the sum of

$841,305.15. The $841,305.15 included a lodestar of $394,441,

enhancement of 1.1 (i.e. an additional $433,885.10) and fee

motion hours of $12,979.05. Submitted with the application were

two recently prepared summaries showing the hours of plaintiffs’

two lawyers from the beginning of the case. No data supporting

the summaries was submitted, although both lawyers submitted

declarations indicating they maintained contemporaneous time

records. The summaries manifestly were made from some record.

The fee agreement between plaintiffs and their counsel was not

produced on the motion for fees. All we know about the fee

agreement is what can be gleaned from plaintiffs’ memorandum

on the fee motion (“Ms. Sher, joined by Ms. Dietrich. . . agreed

to represent them on a contingent basis in a lawsuit challenging

defendants practices. Other than a nominal initial sum, ($450

each), the plaintiffs were unable to afford to pay any legal fees to

Ms. Dietrich or Ms. Sher or even to reimburse them for costs.”

Memorandum in Support of Motion for Fees, Nov. 12, 1991, p. 4.

Soon after receiving the fee motion defense counsel contacted

Mr. Pearl, who is special counsel who joined the case for the fee

applications. Defendants suggested to Pearl the dates of Decem-

ber 6 and 7, 1991 for the deposition of Sher and Dietrich,

plaintiffs’ attorneys. Pearl said he would get back but had not

done so by the time it was necessary for defendants to respond in

writing to the fee motion. Defendants’ response included a request

that the Court stay its hand on the fee application pending

reasonable discovery. Specifically defendants sought discovery of

the fee agreement between plaintiffs and their counsel and plain-

tiffs’ counsel’s original time records. Several attempts to reach

Pearl by phone were unsuccessful. In a declaration filed Decem-

ber 7, 1990, Pearl stated plaintiffs counsel declined to be deposed.

Deiendants therefore served a subpoena duces tecum requesting

the fee agreement and the records underlying the hours summa-

nes. Pearl wrote back on December 10, 1991 that plaintiffs’

attorneys would ignore the subpoenas.

The fee hearing was held on December 14, 1991. It lasted

about twenty minutes. Defendants asked the Court to stay his

10

hand pending the specifically defined discovery defendants had

requested.

The trial court denied the request for original time records and

the fee agreement. He proceeded solely on the basis of the hours

summanies to find 2,000 compensable hours. The hourly rate was

fixed at $170. Expressly relying on the now disapproved case of

Fadhi v. City and County of San Francisco 859 F.2d 649, the

Court enhanced the lodestar by a multiplier of 1.75. This created

additional fees of $255,000. The Court added compensation for

the fee application effort in the amount of $16,200 and $8,500 in

costs, for total fees and costs of $619,700. The trial court denied a

subsequent motion to alter or amend the fee award.

On appeal the Ninth Circuit affirmed in all respects. Both in

the trial court and in the Ninth Circuit defendants strenuously

objected to any enhancement of the lodestar, relying on Justice

White’s opinion in Pennsylvania v. Delaware Valley Citizens

Council 483 U.S. 711 (1987). The Ninth Circuit’s unpublished

opinion did not deal with the enhancement issue. That opinion

was rendered on the same day this Court decided the Dague case.

Petitioners filed a rehearing petition based on Dague in the Ninth

Circuit, but that petiton was summarily denied.

REASONS FOR GRANTING THE WRIT

I. Pendent Jurisdiction

If this case was free of reversible error Petitioners would not at

this post-judgment stage ask the Court to dismiss or remand on

the ground that the District Court abused its discretion in choos-

ing to exercise pendent jurisdiction of the state law claims when

all federal claims had been voluntarily dismissed and the case was

stili in its early stage. But the direction of a verdict on the

discrimination issue in this case was reversible error, as Petition-

ers are attempting to show herein. That being so, there is no

unfairness to plaintiffs, no estoppel of defendants, to assert that

the judgment should be vacated also on the jurisdictional ground

and the case remanded to state court.

1]

This Court’s opinion in Carnegie-Mellon Univ. vs. Cohill 484

U.S. 343 (1988) opens the door to remandment of this case to

state court. This Court should adhere to a policy of letting the

state courts decide state law causes of action, unless there is a

very good reason why a federal court should decide state law

issues among citizens of the same state. In the case at bar there is

no such good reason, or in fact any reason at all, why Judge Legge

should have continued to exercise pendent jurisdiction of the Cal.

Gov't. Code 12940 claims after the last federal claim was volunta-

rily dismissed in October of 1988, but there are many good

reasons why at that point he should sua sponte have remanded the

action. Among these reasons are comity, the crowded federal

docket, and the avoidance of Erie problems. The new Supplemen-

tal Jurisdiction statute (Judicial Improvements Act of 1990 (Pub.

L. 101-650) 28 U.S.C. 1367, does not apply in cases filed before

December 1, 1990. However, all of the reasons for declining

jurisdiction listed in subsection (c) of that statute are present in

the case at bar.

Il. Interlocutory Summary Judgment

This Court’s opinion in Celotex Corp. vs. Catrett 477 U.S. 317

(1986) emphasizes the importance of summary judgment in

relieving the District Courts of unnecessary tnal time. At oral

argument of this case in the Ninth Circuit, the Court seemed to

adopt a position that once summary judgment has been rendered

there is no mandatory duty for the trial judge to change it, even if

the summary judgment order is non-dispositive, even if evidence

at tnal shows the summary judgment order was wrong. Petitioners

urge this Court to repudiate that view. Trial by affidavit at early

sta ses of a case before the evidence is fully developed can lead to

the wrong result. In the case at bar Judge Legge held on summary

judgment, and on that basis instructed the jury, that petitioners

had unlawfully retaliated against Carole Braden in 1987. 1987 was

the year the other three plaintiffs were turned down in their

request for employment at Konocti. But Carole Braden quit

Konocti in May of 1986, when the new dining room policy was

announced, and she worked elsewhere through 1986 and 1987,

not applying to Konocti in 1987. Except one banquet job near the

end of 1987, there were no relations between Braden and Konocti

12

in 1987. These matters were brought to Judge Legge’s attention at

the November 17, 1989 hearing on summary judgment and in

written submissions on the settlement of the summary judgment

order. Nevertheless, the jury was instructed, on the basis of the

summary judgment order, that Konocti and Aristocrat had unlaw-

fully retaliated against Braden in 1987. This Court should reaffirm

the principle of Rule 54(b) of the Federal Rules of Civil Proce-

dure, that a non-dispositive summary judgment order is subject to

revision at any time before final judgment, and that such orders

should be revised when the evidence indicates they are wrong.

IIL Proof of Discrimination

The directed verdict on discrimination in this case was in error.

The jury reasonably could have found that the four waitress

plaintiffs were excluded from the Konocti dining room in 1986 not

because they are women, but because management believed they

were less qualified to serve the 1986 menu than the seven waiters,

all but two of them Italian-speaking, and a// of them with

extensive prior experience in tableside preparation of Italian

dishes, who did work in the dining room in 1986. This Court

should reaffirm the principles and procedure of Mc Donnell

Douglas Corporation vs. Green 411 U.S. 792 (1973) and Texas

vs. Burdine 450 U.S. 257 (1981). It is true that these plaintiffs

offered evidence in the case at bar to the effect that they were

qualified to do the tableside preparation required by the 1986

menu. But their evidence did not rise to the level of a directed

verdict. There was ample countervailing evidence (e.g. plaintiffs

Exhibit 15) indicating that Konocti management in good faith

believed that plaintiffs were not qualified to serve the 1986 menu,

that there was not enough time before the 1986 season to train

them in those qualifications, and that the waiters actually hired

were better qualified to serve the 1986 menu than plaintiffs were.

The directed verdict on discrimination in this case was error.

Viewing the evidence in the light most favorable to Petitioners,

Continental Ore vs. Union Carbide 370 U.S. 690, fn. 6 (1962), it

is clear that the directed verdict on discrimination must be

reversed. This Court should grant the writ in order to reaffirm the

salutory principle that discrimination is an issue of fact to be

resolved by the factfinder on all the relevant evidence. The

——EeEeEeEe————

13

California Courts do not hold otherwise, Stephens vs. Coldwell

Banker 199 Cal.App.3d 1394, 1401. In federal Court the Mc

Donnell Douglas rules for proof of discrimination must govern the

proceedings.

IV. New Trial

This Court should reaffirm the centunes-old rule that a tnal

judge must set aside excessive damages or damages not supported

by the evidence. In our case it was proper for the jury to fix

damages of lost wages by taking for 1986 and 1987 what the

highest earning waitperson earned and deducting therefrom the

actual earnings of the plaintiffs. But such earnings, both for

plaintiffs and the highest-earners, already included both wages

and tips. When the jury went further, under the rubric of lost

earnings, and applied 15% to the restaurant grosses and distrib-

uted that 15% among plaintiffs, the jury was outside the evidence

and was also compensating plaintiffs twice for the same loss.

Plaintiffs, not these Petitioners, put before the trial judge the

evidence of precisely how the jury calculated damages. On motion

for new trial, the tnal court could and should have reduced the

verdict by eliminating the illegal enhancements, offering plaintiffs

the option of a reduced judgment or a complete new tnal on

damages.

V. Attorney Fees

A. Discovery of the Fee Agreement Between Plaintiffs and

Their Counsel

In City of Riverside vs. Rivera, 477 U.S. 561, this Court held

that a reasonable attorney fee need not be proportionate to the

amount of damages recovered. In Blanchard v. Bergeron 489 U.S.

87 (1989) this Court held that a contingent fee agreement does

not impose a limit on fees available under 42 USC 1988.

Blanchard did say that the fee agreement is one of the factors

which the Court might consider in arriving at a proper fee. In

Vanegas vs. Mitchell, 495 U.S. 82, 110 S.Ct. 1679 (1990) this

Court held that the fact of lower court-awarded fees does not

prevent an attorney from recovering against his client a higher

contingent fee provided for in their agreement.

14

It seems quite clear that in fixing a statutory fee we start with

the lodestar, being productive hours times reasonable rate. The

question which the present care presents is whether there are any

circumstances under which the terms of the fee agreement would

cause the tnal court to reduce the lodestar amount. Petitioners

believe there are such circumstances. Respondents below took the

position, citing Vanegas vs. Mitchell, 495 U.S. 82 (1990), that no

matter what the fee agreement says, it will not affect the amount

of the award. The lower courts agreed: “What we are concerned

with here is an adequate award of attorneys fees to the defend-

ants, not a question of how the money might be shared between

plaintiffs and their counsel.” (Dkt. No. 370, E.R. 14:22-25).

(Remarks of the trial judge.)

There are injunctive relief cases and there are damages cases.

The case at bar is purely a damage case, all claims for injunctive

or monetary relief having long since been abandoned. There are

class actions, which usually involve no fee agreements, and there

are individual plaintiff cases, where written fee agreements are

common, if not required by law. The case at bar had both of these

aspects, but we are dealing here with the private plaintiff aspect.

Cal. Gov't. Code § 12965(b) provides for an award to the

party, not to his attorney. When the att ney and party contract,

the attorney presumably has advised the . ‘ient of the possibility of

court-awarded fees against the defe’ sant. The Courts should

enforce the fee agreement between che attorney and client, and

should not make a new contract for the plaintiff and his attorney.

Vanegas vs. Mitchell, supra. In fixing fees under a fee shifting

statute a court is trying to decide how much money a losing

defendant should pay to a victorious plaintiff, not to the plaintiff's

lawyer. In so doing the court should be guided by the objective of

making sure that poor clients with good cases get good represen-

tation and the objective of providing compensation to the attorney

for his successful work. To do this the Court must look at the fee

agreement to see how much of the potential recovery of damages

and fees the client has agreed to pay the lawyer, and what

provisions have been made for costs. If the lawyer is to share in

the damage recovery and also take all of the court-awarded fee,

the lodestar should be reduced. If the parties have agreed that the

15

client will keep all damages and the attorney will receive the

court-awarded fee, a fee equal to the lodestar should be awarded.

If the agreement makes no distinction between damages and a fee

award, and provides merely for a percentage fee, the Court should

award a statutory fee only if the lawyer’s contingency fee is less

than the lodestar. In other words, the tnal court should fix the

lodestar and award the same, unless the fee agreement indicates

the lawyer will wind up with more than the lodestar, in which case

the lodestar should be reduced so that the lawyer’s share of the

damage recovery and the reduced lodestar equal the orginal

lodestar. This would reduce the amount of fees payable by

defendants, who after all are already paying the damage

judgment.

In the case at bar plaintiffs recovered damages of $311,949.

How much of this have they agreed to pay their attorneys? That

we do not know, because the court at plaintiffs’ instance denied

discovery of the fee agreement. If these four plaintiffs have agreed

to pay a third, quarter, or 40% of their damages to their lawyers,

plaintiffs should be held to that agreement and the lodestar

payable by these Petitioners should be reduced by the amount of

the contingent fee. In this way the fee agreement may indicate

that reduction of the lodestar is proper. It is idle to speculate on

what might be the terms of the fee agreement between Braden et

al. and their attorneys in this case. We do not know what those

terms are, but those terms may affect the amount of the fees

payable by Petitioners. See Sullivan vs. Crown Paper Board Co.

719 F.2d 667, 668-669 (3rd Cir. 1983), where the Court re-

manded for ascertainment of the contingent fee agreement’s

terms.

The fee-shifting statutes do not say that plaintiffs should be

relieved of their contractual obligations to their lawyers. It is not

the purpose of the typical fee-shifting statute providing for “a

reasonable fee” to relieve the plaintiff of any charges for fees and

cause legal services to be free of charge if plaintiff wins. The

purpose of such statutes is to get plaintiff a lawyer and adequately

compensate the lawyer for his successful work. These objectives

are well served by fixing fees in the light of the fee agreement.

16

In National Ass'n. of Concerned Veterans vs. Sec. of Defense

675 F.2d 1319 (D.C. Cir. 1982) at p. 1328, the Court stated:

“The initial inquiry therefore in determining whether a premium

for msk should be awarded must focus on the terms of any

agreement between the applicant and his counsel relating to fees.

The better practice would be for the applicant to include a copy of

any such agreement in the fee application. In any event, the

applicant should state whether any fee agreement exists and recite

its precise terms.”

In Pennsylvania vs. Delaware Valley Citizens Council 483 U.S.

711, (1987), this Court stated that the fee agreement may have a

bearing on the question of enhancement of the lodestar, since the

lawyer may have offset the risk of loss by negotiating a contin-

gency which, if it materializes, would produce compensation

greater than the prospective lodestar amount. For these reasons

this Court should vacate the fee award and direct plaintiffs to

produce their fee agreement in this case.

V. Attorney Fees

B. Discovery of Plaintiffs’ Counsel’s Original Time Records

Plaintiffs’ victory in this case was not complete. Plaintiffs lost

the verdict and judgment on their class action allegations and on

their age discrimination claims. Under Hens/ey vs. Eckerhart 461

U.S. 424 (1981) plaintiffs are not entitled to compensation for

the hours devoted to these two matters. A great deal of plaintiff

counsel's time was devoted to the class action aspects of this case.

Petitioners cannot say what plaintiffs counsel's original time

records would show because petitioners have never seen those

records. In declarations in the District Court both of plaintiffs

attorneys stated they maintained contemporaneous time records.

The document which the District Court relied on completely in

fixing hours was not an onginal record. It was a recently prepared

summary, apparently from original records. The general rule of

evidence in that summanies are not admissible unless the underly-

ing documents they summanize are available to the party against

whom the summanes are offered. Federal Rules of Evidence,

Rule 1006, 4 Wigmore on Evidence, {] 1230.

cian ai a

17

Attorneys who anticipate making fee applications should keep

accurate and current records of work done and time spent.

National Ass'n. of Concerned Veterans vs. Sec. of Defense, supra,

675 F.2d 1319, 1327 (D.C. Cir. 1982).

Such records should be produced to the Court and opposing

counsel as a matter of course on fee applications.

The entries on the summanes produced in this case are

elliptical and sometimes unintelligible. For this reason Petitioners

asked to depose plaintiffs’ attorneys, not for the purpose of

embarrassing them, but for the purpose of arnving at a just

conclusion as to the number of hours properly chargeable to

Petitioners in this case. The District Court accepted plaintiffs’

summanes almost entirely, reducing them by only 12% in arriving

at a figure of 2,000 hours. Petitioners think that a careful review

of the original records and specific deposition examination of

plaintiffs’ counsel will show that the number of compensable

hours in this case is closer to 1,000 than to 2,000. Again, in Nat.

Ass'n. of Concerned Vets vs. Sec. of Defense 675 F.2d 1319, 1334

(D.C. Cir. 1982) the Court held that specific discovery should

have been permitted to test the accuracy of plaintiffs’ fee

application.

The District Couris have the power to circumscribe the subject

matter and length of depositions. Taking depositions does not

entail an evidentiary hearing. The results of the depositions may

be put before the Court in wmitten form in the fee motion

procedure.

VL This Court should grant the Writ and Decide Whether the

Rule of City of Burlington v. Dague US. ung 282

S.Ct. 2638 (June 24, 1992) Appiies to Fee Awards in

Federal Court Where the Right to Fees is Granted by a

State Statute

In Ackerman vs. Western Electric Co., Inc. 643 F.Supp. 836,

857-868 (N.D. Cal. 1986), Judge Schwarzer considered whether

state or federal law should control the calculation of the amount

of fees in federal court under Cal. Gov't Code 12965(b). He there

pointed out conflicts among the circuits on this issue, and the fact

_—_—————

18

that there is no definitive law on the subject. In Ackerman, Judge

Schwarzer, relying on Blum vs. Stensen 465 U.S. 886, 895

(1984), declined to enhance the lodestar. He noted that the

California Agency charged with administering the Fair Employ-

ment and Housing Act had not followed Blum vs. Stensen, supra,

in the matter of enhancement DFEH vs. Cairo (1984) FEHC

Sec. No. 84-04 at p. 25 note 8. To the similar effect are Serrano

vs. Unruh 32 Cal.3d 621, 639 fn. 29 (1982) and Sundance vs.

Municipal Court 192 Cal.App.2d 269, 274 (1987).

This Court should grant certioran and extend the salutary rule

of Dague to all fee application in federal court, including fee

applications based on state statutes. The federal courts must have

the {ast word on compensation of attorneys for the performance of

services in federal court. Also, the Dague arguments against

enhancement, such as double counting, encouragement of fee

ligation, rewarding the weakest cases and punishing the best

defenses, immoderate fees, do not necessarily refer to the intent of

Congress, and these objections have equal force whether en-

hancement is sought under a federal statute or a state statute.

It is clear that Judge Legge did not have the benefit of Dague

when he added $255,000 to the fee award in this case. He did

expressly rely on the Ninth Circuit's opinion in Fadhi vs. City and

County of San Francisco 859 F.2d 614 (9th Cir. 1988), which

Dague effectively overruled. Even if Dague is not controlling here,

the tral court should be given the opportunity to reconsider the

enhancement issue in the light of Dague.

19

Vil. Conclusion

On the merits of this case there are four judgments, one for

each plaintiff. A subsequent single judgment for attorney fees was

entered in favor of the four plaintiffs. Petitioners ask the Court to

grant the wnit of certiorari, determine that the directed verdict for

plaintiffs on discrimination and the summary judgment order in

favor of Braden were error, vacate all judgments favorable to

plaintiffs, and remand the case to the District Court, with instruc-

tions to remand the case to state court, or, alternatively, instruc-

tions to grant Petitioners a new trial. The fee judgment should be

vacated and the case remanded to the District Court with instruc-

tions to permit discovery of the fee agreement and onginal time

records and to permit reasonable deposition cross-examination of

those writings. This Court should hold that Dague precludes

enhancenient of attorney fee awards in federal court.

Respectfully submitted,

Joseph L. Alioto Lawrence Alioto

650 California Street

Suite 2500

San Francisco, CA 94108

(415) 434-2100

Attorney for UA. Local 38

Convalescent Trust Fund

Peter P. Machi

246 Van Ness Avenue

San Francisco, CA 94102

(415) 621-1501

465 California Street

Suite 736

San Francisco, CA 94104

(415) 399-0533

Counsel of Record and

Attorney for All Petitioners

Attorney for Estate of Joseph P. Mazzola

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 90-16634

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellees,

. A

PLUMBING & PIPEFITTING INDUSTRY

LOcAL 38 CONVALESCENT TRUST FUND,

dba Konocti Harbor Inn

Defendant-Appellant

No. 90-16635

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellees,

~s

PLUMBING & PIPEFITTING INDUSTRY

LOcAL 38 CONVALESCENT TRUST FUND,

dba Konocti Harbor Inn

Defendant

and

ARISTOCRAT HOTELS, INC.

Defendant-Appellant

2a

No. 90-16637

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellees,

Va

PLUMBING & PIPEFITTING INDUSTRY

LOCAL 38 CONVALESCENT TRUST FUND,

dba Konocti Harbor Inn

Defendant

and

JOSEPH MAZZOLA

Defendant-Appellant

No. 91-15457

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-Appellees,

¥.

PLUMBING & PIPEFITTING INDUSTRY

LOcAL 38 CONVALESCENT TRUST FUND,

dba Konocti Harbor Inn;

JOSEPH MAZZOLA;

ARISTOCRAT HOTELS, INC.

Defendants-A ppellants

3a

No. 91-16152

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-Appellants,

Ve

PLUMBING & PIPEFITTING INDUSTRY

LOCAL 38 CONVALESCENT TRUST FUND,

dba Konocti Harbor Inn;

JOSEPH P. MAZZOLA;

ARISTOCRAT HOTELS, INC.

Defendants-A ppellees

MEMORANDUM#*

Appeal from the United States District Court

for the Northern District of California

Charles A. Legge, District Judge, Presiding

Argued and Submitted January 17, 1992

San Francisco, California

BEFORE: CHAMBERS, TANG and PREGERSON Circuit

Judges.

This is a sex discrimination and retaliation case filed under Cal.

Govt. Code {| 12940 based on Konocti Harbor Inn’s policy of

hiring only male waiters for the 1986 summer season. The

Konocti Harbor Inn (“KHI”) is a resort complex in rural Lake

County, in Northern California. It is owned and operated by the

Convalescent Trust Fund (“Trust Fund”) of U.A. Local 38 of the

Plumbing and Pipefitting Industry. Joseph P. Mazzola was the

leader of Local 38.' Aristocrat Hotels, Inc. (“Aristocrat”) man-

* This disposition is not appropnate for publication and may not be

cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

'Mazzola died on August 12, 1989. In January 1990, the plaintiffs

substituted the Estate of Mazzola as a party-defendant.

4a

aged KHI from March 1987 through the 1988 season. Plaintiffs

are four women, Carole Braden, Juanita Raymos, Christine

Chrapowicz and Wanda Brooks, who had worked at KHI prior to

1986.

In November 1989, the district court granted summary judg-

ment in favor of the plaintiffs and against the Trust Fund and

Aristocrat on the issue of retaliation. The jury trial commenced in

June 1990. Pnor to submitting the case to the jury, the district

court granted the plaintiffs’ motion for a directed verdict on tie

issue of the Trust Fund’s and Anisstocrat’s liability for unlawful : :x

discrimination. The jury subsequently returned a verdict in fa\ or

of the plaintiffs and against Mazzola, finding that Mazzola had

discriminated against the plaintiffs on the basis of their sex. The

district court denied the defendants’ motions for Judgment Not-

withstanding the Verdict and New Tnial. The district court then

awarded attorneys’ fees to the plaintiffs.

We affirm the district court in all aspects.

Jurisdiction. Defendants assert that the district court should

have remanded this case to the state court once the plaintiffs

voluntarily dismissed their federal claims. The judgment of the

district court “ought not be lightly disturbed.” Schneider v. TRW.

Inc., 938 F.2d 986, 994 (9th Cir. 1991). See also Schultz v.

Sundberg, 759 F.2d 714, 718 (9th Cir. 1985). Given the time and

judicial resources already invested in the case, the district court

did not abuse its discretion by retaining jurisdiction over the case.

Sufficiency of Netice of Death upon the Record: Defendants rut

the notice of death of Mazzola on the very last page of ihe

Defendants’ Supplemental Responses to Plaintiffs’ Fourth Set of

Requests to Admit, Interrogatories and Request for Production of

Documents. Defendants contend this constitutes sufficient sug-

gestion of death under Fed. R. Civ. P. 25(a) and therefore,

Plaintiffs failed to file before the statute of limitations expired.

The Ninth Circuit has not addressed this issue of sufficiency of

notice. However, the Tenth Circuit has found that the “running of

the ninety-day limitations period under Rule 25(a)(1) is not

triggered unless a formal suggestion of death is made on the

record, regardless of whether the parties have knowledge of a

Sa

party’s death.” Grandbouche v. Lovell, 913 F.2d 835, 836 (10th

Cir. 1990) (per cunam). We adopt that mule and find that no

formal suggestion of death was made on the record and therefore

the statue of limitations had not run.

Admission of California Department of Employment and Fair

Housing (““CDEFH") Right-to-Sue Letter: Defendants argue that

plaintiff Braden’s CDEFH complaint was not filed within the one

year limitation. However, at trial the district court admitted into

evidence the CDEFH right to sue letter which indicated on its

face that her complaint was timely filed. At trial Braden testified

that she filed with the CDEFH in 1986 and that the wrong

violauion date on her 1987 CDEFH complaint was an innocent

mis:ake. The district court was in the best position to judge

credibility. We affirm the district court.

Summary Judgment on Retaliation: “Ordinarily, summary

judgment should not be granted when there are relevant facts

remaining to be discovered, but the party seeking discovery bears

the burden of shoiwing what specific facts it hopes to discover that

will raise an issue of material fact.” Harris v. Duty Free Shoppers

Ltd. Partnership, 940 F.2d 1272, 1276 (9th Cir. 1991) (citing

Continental Maritime v. Pacific Coast Metal Trades Dist. Council,

817 F.2d 1391, 1395 (9th Cir. 1987)). The summary judgment

motion on the issue of retaliation was granted against the Trust

Fund and Anstocrat in November 1989, seven months before

trial. Defendants argue there was sufficient evidence to defeat a

summary judgment motion.

At the time of the summary judgment motion, the court had

declarations about the rejected job applications; declarations that

oth:rs had been hired in place of the plaintiffs; an affidavit

reporting a direct assault on plaintiff Brooks; and affidavits

describing the lack of adequate work hours given to those rehired

in 1988 and 1989. The defendants offered no opposing affidavits

nor any excuse for failure to do so. Even the district court

commented that the summary judgment was granted “because

the defendants had not adequately responded to discovery and did

not make a legally adequate defense to the partial summary

judgment motion at the ume it was filed.”’ We affirm the district

court’s grant of summary judgment.

6a

Directed Verdict on Sex Discrimination: The Ninth Circuit

reviews a directed verdict under the same standard applied by the

district court; such a verdict is proper if, considered in the light

most favorable to the non-moving party, the evidence permits

only one reasonable conclusion. Peterson v. Kennedy, 771 F.2d

1244, 1256 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986).

Further, to benefit from favorable inferences, the party opposing

the directed verdict “must present ‘substantial evidence’ in sup-

port of its claims.” Feldman v. Simkins Industries, Inc., 679 F.2d

1299, 1303 (9th Cir. 1982). The district court directed a verdict

against defendants on the issue of sex discrimination because a

prima facie case had been established and the defendants failed

adequately to answer or rebut the plaintiffs’ evidence. We affirm

the district court.

Jury Verdict on Damage Awards: The standard for reviewing

jury verdicts is whether they are supported by “substantial evi-

dence,” that is, such relevant evidence as reasonable minds might

accept as adequate to support a conclusion. Oltz v. St. Peter's

Community Hospital, 861 F.2d 1440, 1450 (9th Cir. 1988).

Because of the variety of evidence, including tax records, tip

records, and gross income of the dining room, the district court,

who had viewed the tnal in its entirety, found the jury damage

awards reasonable. We cannot disagree.

Denial of JNOV: We review de novo the district court’s denial

of a motion for JNOV. Wilcox v. First Interstate Bank, N.A., 815

F.2d 522, 524-25 (9th Cir. 1987). JNOV is appropriate only

when the evidence, viewed in the light most favorable to the non-

moving party, could not reasonably support the verdict. Locricchio

v. Legal Services Corp., 833 F.2d 1352, 1356 (9th Cir. 1987).

Defendants did not place sufficient evidence in the record to

uphold their contentions about Aristocrat. On the other hand,

there was sufficient evidence on the record to permit a reasonable

jury to find that Aristocrat was in charge of the daily management

of KHI. We affirm the district court’s denial of the JNOV.

Attorneys’ Fees: Attorney fee awards are at the discretion of

the trial court and are reviewed for abuse of discretion. Cal. Govt.

Code § 12965(b).

|

Ta

In order to avoid turning the attorney fee proceedings into a

second tral, the district court was well within its discretion to

deny defendants discovery of plaintiffs’ attorneys’ time records.

Further, the district court was in the best position to judge the

reasonableness of the awards. Based on its knowledge of the case,

the district court reduced the amount of hours claimed by

plaintiffs and reduced the lodestar amount.

Defendants claim that the district court abused its discretion

because it did not consider the contingency fee arrangement the

plaintiffs’ attorneys had with the plaintiffs. However, review of

contingency fee arrangements is not mandatory. See Blanchard v.

Bergeron, 489 U.S. 87, 93-96 (1989).

Further defendants claim that the hourly rate awarded was

inappropnate for the amount of experence the plaintiffs’ attor-

neys had. However, the district court was presented with affidavits

verifying that the proposed hourly rate was consistent with some

other practitioners. We affirm the award of attorneys’ fees.

AFFIRMED.

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 90-16634

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellees,

va

PLUMBING & PIPEFITTING INDUSTRY

LOCAL 38 CONVALESCENT TRUST FUND,

dba KONocTI HARBOR INN,

Defendant-A ppellant.

No. 90-16635

D.C. No, CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-Appellees,

V.

PLUMBING & PIPEFITTING INDUSTRY

LocaL 38 CONVALESCENT TRUST FUND,

dba KONoctTi HARBOR INN,

Defendant.

and

ARISTOCRAT HOTELS, INC.

Defendant-Appellant.

2b

No. 90-16637

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-Appellees,

¥.

PLUMBING & PIPEFITTING INDUSTRY

LocaL 38 CONVALESCENT TRUST FUND,

dba KONOCTI HARBOR INN,

Defendant.

and

JOSEPH MAZZOLA

Defendant-Appellant.

No. 91-15457

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellees,

Vv.

PLUMBING & PIPEFITTING INDUSTRY

LocaL 38 CONVALESCENT TRUST FUND,

dba KONOcTI HARBOR INN;

JOSEPH MAZZOLA;

ARISTOCRAT HOTELS, INC.,

Defendants-Appellants.

3b

No. 91-16152

D.C. No. CV-87-06028-CAL

CAROLE BRADEN; JUANITA RAYMOS;

CHRISTINE CHRAPOWICS; WANDA BROOKS

Plaintiffs-A ppellants,

v.

PLUMBING & PIPEFITTING INDUSTRY

LOcAL 38 CONVALESCENT TRUST FUND,

dba KONOCTI HARBOR INN;

JOSEPH P. MAZZOLA;

ARISTOCRAT HOTELS, INC.,

Defendants-Appellees.

BEFORE: CHAMBERS, TANG and PREGERSON Circuit

Judges.

A majority of the panel has voted to deny the Appellants’

Petition for Rehearing. Accordingly, the Petition for Rehearing is

denied.