Pollock v. Kelso

Filed 1/8/25 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PAMELA POLLOCK, B320574

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BC676917 v.

MICHAEL KELSO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lia Martin, Judge. Affirmed. Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly, and Julian Bellenghi for Plaintiff and Respondent. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre and Tracy Forbath for Defendant and Appellant. ____________________

We affirm an attorney fee award.

I In 2018, Pamela Pollock sued her supervisor Michael Kelso for sexual harassment and, on grounds of race, refusing to promote her. Pollock alleged Kelso asked her for sexual intercourse in 2016 and, after she rejected him, he promoted five less qualified people of other races to positions she sought. The trial court ruled Pollock’s suit was time-barred. We affirmed. (Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532.) In 2021, the Supreme Court reversed and rendered three holdings. First, the statute of limitations in this type of case begins to run when plaintiffs knew or should have known of the adverse promotion decision. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 941.) Second, the defense bears the burden on this issue. (Id. at p. 947.) Third, under the Fair Employment and Housing Act, an appellate court may not award costs or fees on appeal to a prevailing defendant without first determining that plaintiff’s action was frivolous, unreasonable, or groundless when brought, or that plaintiff continued to litigate after it clearly became so. (Id. at pp. 947– 951.) Following the Supreme Court’s directions, in 2021 we remanded and ordered costs for Pollock. In the trial court, Pollock moved for $526,475.63 in attorney fees under subdivision (c)(6) of Government Code section 12965 in late 2021. In March 2022, the trial court awarded $493,577.10. Kelso filed his notice of appeal on May 9, 2022. The trial court set a trial date of May 1, 2023. Before that trial date, in February 2023, Kelso and Pollock settled the bulk of their case. Pollock moved to dismiss her