©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 153 attorney fees “incurred to the date of this offer in the amount determined by the Court according to proof,” was sufficiently definite to constitute valid offer, but trial court abused discretion by awarding defendant more than $60,000 in costs without considering plaintiff’s ability to pay). See also § 6.13. 515 Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal. App. 5th 525, 552 (2018) (“We resolve the conflict in favor of the FEHA provision, which the Legislature enacted as part of a comprehensive statutory scheme designed to encourage victims of discrimination in employment or housing to seek relief.”). 516 Id. at 552-56. 517 Formal Opinion No. 517: Indemnification of Client’s Litigation Costs (April 2006) (re Rule 4-210(A)(3)). See also Ripley v. Pappadopoulos, 23 Cal. App. 4th 1616, 1626 n.17 (1994) (“It was formerly considered unethical for an attorney to agree to advance the costs of litigation if reimbursement was made contingent upon the outcome. … Rule 4-210 of the California Rules of Professional Conduct now permits an attorney to advance the costs of prosecuting or defending a claim and also permits repayment to be made contingent on the outcome of the matter.”). See generally Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510 (2006) (mere filing of meritless lawsuit could not give rise to cause of action for abuse of process). 518 Earley v. Superior Court (Washington Mut. Bank), 79 Cal. App. 4th 1420, 1435 (2000) (written notice to class members is not to tell the workers deciding whether to opt out that they might be liable for defendant’s attorney fees or costs: “Defense fees and costs could easily dwarf the potential overtime compensation recovery each worker might obtain. With potential risks far outweighing potential benefits, workers may well forego asserting their statutory wage and hour rights.”). 519 Joaquin v. City of Los Angeles, 202 Cal. App. 4th 1207, 1231 (2012) (CACI fails to include “retaliatory intent” as essential element for claim of unlawful retaliation; rather, CACI instruction here made jury verdict “inevitable” because instruction simply required plaintiff to show (1) he reported sexual harassment, (2) the City terminated his employment, (3) the report was a “motivating reason” to terminate him, (4) he was harmed, and (5) the City’s conduct was a substantial factor in causing his harm; CACI did not apply here, where the termination of employment was not for reporting as such, but for reporting falsely; “We urge the Judicial Council to redraft the retaliation instruction and the corresponding special verdict form so as to clearly state that retaliatory intent is a necessary element of a retaliation claim under FEHA.”) 520 Harris v. City of Santa Monica, 56 Cal. 4th 203, 213 (2013) (rejecting CACI No. 2500, which made employers liable if a protected status was merely “a motivating factor/reason” for the employer’s adverse action, where a “motivating factor” is “something that moves the will and induces action even though other matters may have contributed to the taking of the action”). 521 Veronese v. Lucasfilm Ltd., 212 Cal. App. 4th 1, 20 (2012) (reversing jury verdict for plaintiff in pregnancy discrimination case). The Judicial Council then issued a new jury instruction, CACI 2513, which is a disappointingly semi-adequate response to Veronese. CACI 2513 reads in pertinent part: “[A]n employer may [discharge] an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair reason, as long as its action is not for a [discriminatory] reason.” 522 SB 41, 2019 bill amending Civ. Code § 3361 (“Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”). 523 Id. 524 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). 525 Lab. Code § 1171.5(a). See also Civ. Code § 3339; Gov’t Code § 7285. 526 Lab. Code § 1171.5(b). 527 Reyes v. Van Elk, Ltd., 148 Cal. App. 4th 604, 617 (2007). 528 Id. at 618. 529 Id. 530 Farmers Bros. Coffee v. WCAB, 133 Cal. App. 4th 533 (2005). 531 Incalza v. Fendi N. Am., Inc., 479 F.3d 1005 (9th Cir. 2007). 532 8 U.S.C. § 1324a(a)(2). 533 Incalza, 479 F.3d at 1010-11. 534 Salas v. Sierra Chem. Co., 59 Cal. 4th 407, 414 (2014). 535 Id. at 416-17. 536 Salas v. Sierra Chem. Co., 198 Cal. App. 4th 29, 44-45 (2011). 537 59 Cal. 4th at 414. 538 Id. at 419 (citing Gov’t Code § 7285(a)). 539 Id. at 431-32. 540 Lab. Code §1024.6. 541 Lab. Code § 244(b) (employer engages in “adverse employment action” for purposes of establishing a violation of rights if employer, in retaliation for the exercise of California statutory rights, reports to a government agency the “suspected citizenship or immigration status” of either the employee, former employee, or prospective employee, or a member of that individual’s family). 542 SB 432, effective 2016, repealing Labor Code §§ 1725 and 2015. 543 AB 450, codified in Gov’t Code §§ 7285.1, 7285.2, 7285.3, and Labor Code §§ 90.2, 1019.2. 544 Gov’t Code § 7285.1 (violations trigger penalties of $2,000-$5,000 for a first violation and $5,000- $10,000 for further violations, recoverable by the Labor Commissioner or Attorney General through a civil action).
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