Blythe v. County of Riverside CA4/2 (2014) · DecisionDepot
Blythe v. County of Riverside CA4/2
California Court of Appeal Jul 16, 2014 No. E055186Unpublished
Filed 7/16/14 Blythe v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEPHANIE BLYTHE et al.,
Plaintiffs and Respondents, E055186
v. (Super.Ct.No. RIC395109)
COUNTY OF RIVERSIDE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed with directions.
Kinkle, Rodiger & Spriggs; Disenhouse & Ivicevic, Bruce E. Disenhouse; Arias &
Lockwood and Christopher D. Lockwood for Defendant and Appellant.
Haight Brown & Bonesteel, Rita Gunasekaran, and Jules S. Zeman for Plaintiffs
and Respondents.
I
INTRODUCTION
Defendant County of Riverside (the County) appeals judgment awarding plaintiffs
Stephanie Blythe and Michelle Swanson1 (plaintiffs) attorney fees in their employment
discrimination action brought under California’s Fair Employment and Housing Act
(FEHA; Gov. Code, § 12900 et seq.)2 against the County. The County contends the trial
court should have denied plaintiffs’ motion for attorney fees because it was untimely and
plaintiffs failed to establish good cause for the over two-year delay in filing the motion.
The County also argues the trial court miscalculated the amount of attorney fees awarded
and the fees were excessive. In addition, the County argues that plaintiffs had no
standing to seek attorney fees on behalf of their previous attorney, Andrew Roth
(Andrew). The County further asserts that the trial court erred in awarding attorney fees
for Andrew’s legal services because he abandoned his clients and awarding fees to
plaintiffs would constitute an unjustified windfall. The County also contends plaintiffs’
contingency fee agreement violates California State Bar rules and public policy against
fee splitting, and encourages counsel to grossly pad fee applications and the trial court to
award excessive fees. We reject the County’s contentions and affirm the judgment.
II
FACTS AND PROCEDURAL BACKGROUND
Blythe worked for the County for over 20 years and Swanson was employed with
the County for seven years. Up until the County installed a new manager in plaintiffs’
department in July 2000, plaintiffs had never been disciplined or received any warnings.
1 The record on appeal indicates that during this litigation Michelle Swanson’s name changed to Michelle Rivera. 2 All statutory references are to the Government Code unless otherwise stated. 2
Shortly after the new manager arrived, plaintiffs were stripped of their supervisory
authority and filed grievances with the Human Resources Department for being subjected
to a hostile workplace. Plaintiffs’ grievances were not resolved. In February 2001,
plaintiffs filed complaints with the California Department of Fair Employment and
Housing.
On March 15, 2001, within a day after the County’s director of human resources
received notice of plaintiffs’ FEHA claims, the County’s director of human resources
decided to terminate plaintiffs’ employment, along with five other female County
hospital supervisors. On April 10, 2001, the seven County employees were served with
termination notices alleging insubordination, dishonesty and discourteous treatment of
employees. In May 2001, the County terminated plaintiffs’ employment.3 Plaintiffs
appealed their termination through their union representative and participated in
posttermination arbitration.
In 2001, plaintiffs retained Diane Roth (Diane), and later retained Andrew in
August 2007, to represent plaintiffs in litigating their employment claims against the
County. The retainer agreements between plaintiffs and the Roths and Reid & Hellyer
were contingency agreements, which provided for dividing all recovery, including all
awarded attorney fees, as follows: “A. Preceding 45 days of Trial: 35 percent to
attorneys; 65 percent to Rivera/Blythe. [¶] B. Within 45 days of Trial or as a result of
Trial: 45 percent to attorneys; 55 percent to Rivera/Blythe.” Since the case went to trial,
3 Patricia Hinojos was also named as a plaintiff in this case but is not a party to this appeal. 3
the gross proceeds were to be divided, with 45 percent paid to plaintiffs’ attorneys as
attorney fees and the remaining 55 percent paid to plaintiffs.
Diane represented plaintiffs during administrative proceedings, including an
arbitration, during a writ proceeding under Code of Civil Procedure section 1094.5,
reversing the arbitrator’s decision, and the County’s unsuccessful appeal from the trial
court decision granting plaintiff’s writ petition. Diane also represented plaintiffs in
federal proceedings.
In January 2002, plaintiffs filed an employment related complaint in federal court,
alleging (1) violation of their right to due process under Title 42 United States Code
section 1983, (2) violation of their First Amendment rights under Title 42 United States
Code section 1983, and (3) employment discrimination in violation of section 12940 et
seq. In April 2002, plaintiffs filed in federal court a motion for a mandatory injunction
asking the federal court to order the County to reinstate plaintiffs’ employment or,
alternatively pay them back pay and benefits, continuing until their arbitration claims
were decided. Plaintiffs asserted that the pending arbitration hearing was unduly delayed,
and sought immediate reinstatement until the arbitrations were concluded.
In May 2002, the federal court denied plaintiffs’ motion for a mandatory
injunction on the grounds plaintiffs had not shown a probability of prevailing or suffering
irreparable injury if the court did not grant injunctive relief. In June 2003, plaintiffs
abandoned their federal lawsuit and filed the instant civil damages lawsuit for retaliatory
and discriminatory termination under section 12965.
4
Meanwhile, arbitration hearings were conducted in April and May 2002 and
February, March, April, and October 2003, with the arbitrator finding that plaintiffs were
terminated for cause. Plaintiffs filed a petition for writ of mandate in the superior court
challenging the arbitrator’s decision. The trial court granted plaintiffs’ writ petition. In
March 2006, this court affirmed the trial court’s ruling, holding that there was substantial
evidence supporting the trial court’s determination there was insufficient evidence to
support the arbitrator’s findings and decision. The County was ordered to set aside
termination of plaintiffs. In 2007, the County complied with the courts’ orders to
reinstate plaintiffs’ employment and reimburse them for lost back pay and benefits.
In 2007, the Roths moved to the law firm of Reid & Hellyer and plaintiffs filed a
substitution of attorney form substituting in as plaintiffs’ attorneys, the law firm of Reid
& Hellyer, in place of Roth & Roth as plaintiffs’ attorneys. In August 2007, Andrew
took over handling plaintiffs’ case for purposes of preparing the case for trial and
representing plaintiffs at trial. Diane, who had handled most of the preliminary issues in
the case, was no longer involved in the case after Andrew took over the case as plaintiffs’
trial attorney. Diane left Reid & Hellyer to become assistant City Attorney for the City
of San Bernardino.
The case was tried twice. In June 2008, after several weeks of trial, the first jury
trial ended in a mistrial on the County’s motion, over plaintiffs’ objection. The mistrial
ruling was based on a claim the County had relied on a hearsay report by Carmen Nerys,
the County’s human resources investigator. The trial court ruled the report was not
sufficiently reliable or objective and, therefore, was inadmissible. The trial court found
5
the allegations in the Nerys report to be untrue based on a review of the transcript of the
administrative hearings in 2002, 2003, and 2004. As a result, the County maintained it
needed to produce witnesses to testify as to plaintiffs’ alleged misconduct but such
witnesses were unavailable during the remaining period of time the jurors had been told
they would be required to sit on the jury. Because the County was unable to present its
defense, the County requested a mistrial, which the trial court granted.
The case was retried, beginning in September 2008, and continuing through
October and the first week of November 2008. On November 7, 2008, the jury returned a
verdict in favor plaintiffs on their retaliatory termination claims and rejected plaintiffs’
sex discrimination claims. The jury awarded Swanson $65,760.54 in damages and
Blythe $100,680.73 in damages.
By letter dated November 18, 2008, Andrew advised the County’s attorney, Bruce
Disenhouse, that plaintiffs would be seeking an award of attorney fees in excess of
$531,500 under section 12965, subdivision (b). Andrew made a settlement demand,
which included payment of plaintiffs’ judgment award, back pay, costs, and attorney fees.
In response to the County’s rejection of plaintiffs’ settlement demand, Andrew sent
Disenhouse a second letter on November 25, 2008, requesting a reasonable counter-
demand. The County did not respond.
Post-Verdict Proceedings
Judgment was entered on February 26, 2009. In March 2009, Andrew filed a
memorandum of costs, totaling $14,183.26. A request for attorney fees was not included
as costs. The County filed a motion to tax costs, which the trial court granted, with costs
6
reduced by $2,886.73. At the County’s request, on May 22, 2009, the trial court vacated
the judgment and entered a corrected new judgment. On June 18, 2009, plaintiffs filed a
notice of entry of amended judgment. In August and September 2010, the County issued
checks to Reid & Hellyer and plaintiffs, in payment of the judgment, plus interest.
Plaintiffs’ paid their attorneys 45 percent ($74,898.57) of the judgment proceeds received
from the County. According to Andrew, prior to expiration of the 60-day period to file
plaintiffs’ motion for attorney fees, he drafted most of the required supporting documents
but never filed the motion.
Beginning in February and March 2009, plaintiffs each began attempting to
contact Andrew, to discuss the issue of filing a motion for recovery of plaintiffs’ attorney
fees. Swanson called Andrew 33 times and left him messages through mid-October
2010. Blythe also emailed and called Andrew and left him 24 messages regarding
recovery of plaintiffs’ attorney fees. In addition, she sent Andrew a letter complaining
that he had not responded to her calls and emails and requesting him to advise her of the
status of her case and whether he had filed her claim for attorney fees. Blythe also sent a
letter to the managing partner of Reid & Hellyer, complaining that Andrew had not
responded to any of her calls or emails. The letter reveals that Blythe also contacted
Diane, who told her in January 2010 that Diane was unable to provide any information on
the civil case. Both letters were sent by certified mail. Finally, Andrew responded on
October 19, 2010, informing plaintiffs that he would not be representing plaintiffs on the
attorney fees issue and suggested plaintiffs retain another attorney to litigate the matter.
7
On November 2, 2010, plaintiffs contacted the law firm of Heiting & Irwin
regarding their attorney fees claim. Dennis Stout was assigned the handling of plaintiffs’
attorney fees motion and began investigating the matter. He attempted to obtain
documents and interview plaintiffs and Andrew. There were voluminous documents
because the case had been pending for over 10 years and tried twice. Although Stout was
assigned the case in November 2010, plaintiffs did not formally retain Heiting & Irwin
until May 20, 2011. Plaintiffs’ motion for attorney fees was completed and filed on
September 2, 2011. The day before, plaintiffs filed a substitution of attorney form,
substituting in Heiting & Irwin as their attorneys. The County filed opposition to the
motion for attorney fees.
During a hearing on the motion on October 12, 2011, the trial court continued the
hearing to allow plaintiffs to file a declaration by Andrew under seal. The court also
permitted the parties to file supplemental briefing. After the parties filed supplemental
briefing, the trial court heard plaintiffs’ motion for attorney fees on October 31, 2011,
took the matter under submission, and granted the motion on November 18, 2011. On
November 29, 2011, the trial court entered an order awarding plaintiffs $542,142.50 for
the Roths’ legal services and an additional $10,642.50 in attorney fees for legal services
provided by Heiting & Irwin in preparing the motion for attorney fees.
III
TIMELINESS OF MOTION FOR ATTORNEY FEES
The County contends plaintiffs’ motion for attorney fees should have been denied
as untimely because plaintiffs lacked good cause for the delay in filing their motion.
8
A. Applicable Law
A party seeking attorney fees authorized by statute may do so “upon a noticed
motion” or “upon application supported by affidavit made concurrently with a claim for
other costs.” (Code Civ. Proc., § 1033.5, subd. (c)(5).) Although plaintiffs timely filed a
memorandum of costs, they did not include a request for attorney fees. Instead, over two
years after entry of judgment, plaintiffs filed a separate motion for attorney fees under
section 12965, subdivision (b), which provides: “In civil actions brought under this
section, the court, in its discretion, may award to the prevailing party, including the
department, reasonable attorney’s fees and costs, including expert witness fees.”
Plaintiffs were prevailing parties on their employment retaliation claims brought under
FEHA.
Under California Rules of Court, rule 3.1702(b), normally a claim for attorney
fees “must be served and filed within the time for filing a notice of appeal . . . .” (Cal.
Rules of Court, rule 3.1702(b)(1)4; see also Carpenter v. Jack in the Box Corp. (2007)
151 Cal.App.4th 454, 468.) The County argues plaintiffs are precluded from recovering
attorney fees because plaintiffs did not file or serve the motion within the time limits
imposed by rule 3.1702(b).
Rule 3.1072(b), however, states: “For good cause, the trial judge may extend the
time for filing a motion for attorney’s fees in the absence of a stipulation . . . .” Under
this provision, a trial court has discretion to accept an untimely motion for attorney fees
4 Unless otherwise noted, reference to a “rule” will be to the California Rules of Court. 9
upon a showing of good cause. (Lewow v. Surfside III Condominium Owners Association
(2012) 203 Cal.App.4th 128, 134 (Lewow).) “Rule 3.1702(d) is ‘remedial’ and is to be
given a liberal, rather than strict interpretation. (E.g., Barragan v. County of Los Angeles
(2010) 184 Cal.App.4th 1373, 1382, [relief to be granted unless absolutely forbidden].)”
(Lewow, at p. 135.)
We review the trial court’s decision to extend the time for filing the attorney fees
motion under the abuse of discretion standard. (Lucci v. United Credit & Collection Co.
agreement to the contrary, to the attorneys who labored to earn them.” (Flannery v.
Prentice, supra, 26 Cal.4th at p. 590.) Our case substantially differs; the dispute here is
between defendant and plaintiffs, not between plaintiffs and their trial counsel.
As such, when dealing with attorney fee-shifting provisions in matters promoting
the public interest, both the party and their counsel have standing to bring a motion for
attorney fees. (See Ruiz v. California State Automobile Assn. Inter-Insurance Bureau
(2013) 222 Cal.App.4th 596, 606-610 [while expressly not addressing the question of a
party’s standing, both counsel and the party appealed from a trial court order setting the
amount of fees].)1
This point was illustrated in Lindelli v. Town of San Anselmo (2006) 139
Cal.App.4th 1499 (Lindelli). There, counsel for plaintiffs moved to intervene in an action
under Code of Civil Procedure section 1021.5 for purposes of seeking statutory attorney
fees; the only way counsel was going to get paid was by recovery of statutory fees, and
the plaintiffs refused to make the motion. In reversing the trial court’s denial of the
motion, the court initially indicated there was “no sound basis to distinguish between
1 Traditionally, “one who is not a party to a proceeding may not make a motion therein.” (Marshank v. Superior Court (1960) 180 Cal.App.2d 602, 605.) In Marshank, a former attorney for the wife sought from the husband by way of an order to show cause, payment of his attorney fees. In finding that the attorney in his own right could not seek attorney fees, the court stated: “[The attorney] . . . has no right to make a motion in his own behalf, as distinguished from a motion in behalf of his client for an award of attorney’s fees in said action. . . . The attorney for such party has no separate equity in the counsel fees awarded to his client but instead his right thereto is derived from his client.” (Id. at p. 607.) 2
Government Code section 12965 and Code of Civil Procedure section 1021.5 in the
construction of the word ‘party’ . . . .” (Lindelli, supra, at p. 1509).2
Continuing, the Lindelli court stated: “Were we to interpret [Code of Civil
Procedure] section 1021.5 as precluding intervention and an attorney’s request for fees
where the client declines to move for a fee award, we would diminish the certainty that
attorneys who undertake public interest cases will receive reasonable compensation and
dilute [Code of Civil Procedure] section 1021.5’s effectiveness at encouraging counsel to
undertake litigation enforcing important public policies. [Citation.] Were we to adopt
respondents’ position it would also provide a windfall to the wrongdoing defendant, at
the expense of the attorneys who labored in the public interest.” (Lindelli, supra, 139
Cal.App.4th at pp. 1512-1513, italics added.)
Further, Lindelli agreed that the terms “prevailing party” and “successful party”
were synonymous, and that both terms authorized an award of attorney fees to a litigant
or its counsel. (Lindelli, supra, 139 Cal.App.4th at p. 1509, citing Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 570 [“stating that ‘prevailing party’ and
‘successful party’ are ‘synonymous’ and characterizing Flannery as standing for the
proposition that ‘the word “party” as part of a prevailing party fee statute refers to litigant
or litigant’s attorney’”], fn. omitted.)
Unlike the plaintiffs in Lindelli, plaintiffs here did not decline to move for attorney
fees. Instead, plaintiffs moved for attorney fees, and their trial attorney submitted a
2 Government Code section 12965 refers to “prevailing party,” while Code of Civil Procedure section 1021. 5 refers to “successful party.” 3
declaration in support of their fee motion. From defendant’s standpoint, it owes attorney
fees. As between plaintiffs and their trial attorney, the fees may belong solely to the trial
attorney or there may be some other arrangement not before us. The defendant however,
owes the fees.
Between plaintiff and defendant there is nothing about the fee-shifting concept
which abrogates the traditional notion that a party has standing to seek attorney fees.
In sum, while I agree with the majority that plaintiffs have standing to bring the
motion, their standing does not depend on some underlying fee arrangement with trial
counsel wherein plaintiffs are to receive a portion of the fees.
KING J.
4
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in granting an extension of time to file a motion for attorney fees under FEHA, as the plaintiffs' original attorney's abandonment of the case constituted "positive misconduct" that provided good cause for the delay.
Issues
Whether the trial court abused its discretion in finding good cause for an untimely motion for attorney fees under FEHA.
Whether an attorney's abandonment of a client constitutes "positive misconduct" that prevents the imputation of the attorney's negligence to the client.
Whether the trial court erred in awarding attorney fees for the services of an attorney who allegedly abandoned his clients.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The conduct of Mr. [Andrew] Roth is considered by this bench officer as ‘positive misconduct.’ That conduct cannot be imputed to the client.”
“Imputation of the attorney’s neglect to the client ceases at the point where ‘abandonment of the client appears.’”
“The trial court reasonably found there was good cause for plaintiffs’ delay in filing their motion for attorney fees during the period of November 7, 2008, until October 19, 2010.”