©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 145 331 City of Burlington v. Dague, 505 U.S. 557, 567 (1992) (rejecting use of enhancements in calculating attorney fees under fee-shifting provisions of two federal statutes). 332 Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 553-54 (2010) (“[W]e reject any contention that a fee determined by the lodestar method may not be enhanced in any situation. The lodestar method was never intended to be conclusive in all circumstances. Instead, there is a ‘strong presumption’ that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.”). 333 Ketchum v. Moses, 24 Cal. 4th 1122, 1130 (2001) (quoting lower court opinion). 334 Id. at 1137-39 (trial court can include fee enhancement to basic lodestar figure for contingent risk, exceptional skill, or other factors). 335 Amaral v. Cintas Corp., 163 Cal. App. 4th 1157, 1216-18 (2008); see also Pellegrino v. Robert Half Int’l, Inc., 182 Cal. App. 4th 278, 290 (2010) (affirming 1.75 multiplier to lodestar figure in multi-plaintiff Labor Code action). 336 Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Hum. Res., 532 U.S. 598 (2001) (rejecting “catalyst theory” in a FOIA case because the theory would allow an award of attorney fees where there is no judicially sanctioned change in the legal relationship of the parties, would discourage defendants to voluntarily change conduct that may not be illegal, and would foment a second major litigation requiring analysis of the defendant’s subjective motivations in changing its conduct). FOIA was amended, in 2007, to define “substantially prevailed” to include “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Congress intended this amendment to prevent federal agencies from denying meritorious FOIA requests, only to voluntarily comply with a request on the eve of trial to avoid liability for litigation costs. Warren v. Colvin, 744 F.3d 841 (2d Cir. 2014). 337 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004). The catalyst theory is available, however, only if the lawsuit had “some merit” and the plaintiff “engaged in a reasonable attempt to settle its dispute with the defendant prior to litigation.” Id. at 561. 338 Id. at 579-82. 339 Id. at 585 (Chin, J., dissenting). 340 Nishiki v. Danko Meredith, APC, 25 Cal. App. 5th 883, 896 (2018). See also Stratton v. Beck, 9 Cal. App. 5th 483, 497 (2017) (affirming $31,625 fee award while rejecting contention that it was “grossly disproportionate” to the $303 wage award). 341 See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney fees under 42 U. S. C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee.”). 342 Harman v. City & Cnty. of San Francisco, 158 Cal. App. 4th 407 (2007). 343 Chavez v. City of Los Angeles, 160 Cal. App. 4th 410, 416-22 (2008) (in ruling on motion for attorney fees by plaintiff who prevailed in FEHA case, trial court erred in denying fees solely because plaintiff’s recovery was below the $25,000 threshold for general civil jurisdiction), review granted, No. S162313 (Cal. May 14, 2008). 344 Chavez v. City of Los Angeles, 47 Cal. 4th 970, 989-92 (2010). 345 Muniz v. United States Parcel Serv., 738 F.3d 214, 218 (9th Cir. 2013) (“although there was a clear disparity between the damages recovered and the fees awarded, California law did not require the district court to reduce the disparity”). 346 See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (approving 28 percent fee as justified by a benchmark of 25 percent adjusted according to specified case circumstances); In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 942 (9th Cir. 2011) (Ninth Circuit district courts “typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special circumstances’ justifying a departure”). 347 Laffitte v. Robert Half Int’l, Inc., 1 Cal. 5th 480, 486 (2016). 348 Id. at 487. 349 Bus. & Prof. Code § 17200 et seq. 350 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1150-51 (2003) (UCL not an all-purpose substitute for tort or contract claim; disgorgement of profits allegedly obtained by unfair business practice not an authorized UCL remedy where profits are neither money taken from plaintiff nor funds in which plaintiff has ownership interest); Feitelberg v. Credit Suisse First Boston, LLC, 134 Cal. App. 4th 997, 1018 (2005) (extending Korea Supply to class-action context: affirming dismissal of claim for nonrestitutionary disgorgement in class action brought under UCL, as UCL authorizes only restitutionary disgorgement; “class action status does not alter the parties’ underlying substantive rights”). See also Pineda v. Bank of Am., NA, 50 Cal. 4th 1389, 1401-02 (2010) (Labor Code § 203 penalties are not recoverable as restitution under the UCL, because employees have no ownership interest in those penalties). 351 Pineda v. Bank of Am., 50 Cal. 4th 1389, 1401 (2010). For a discussion of waiting-time penalties due under Labor Code section 203, see §§ 7.5, 13.3. 352 Bus. & Prof. Code § 17203. 353 Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 179 (2000). 354 Pellegrino v. Robert Half Int’l, Inc., 181 Cal. App. 4th 713 (2010), review granted, No. S180849 (Cal. April 28, 2010) (the review was granted on issues relating to the administrative exemption, and then the case was remanded without a decision by the California Supreme Court). The Pellegrino decision is also notable for holding that the employer could not enforce a provision in its employment contract that shortened the deadline to sue. The Court of Appeal reasoned that shortening the limitations period was inconsistent with the fact that wage and hour laws protect unwaivable statutory rights supported by strong public policy. 355 See Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal. 4th 116 (2000). But see Arias v. Superior Ct. (Angelo Dairy), 46 Cal. 4th 969, 979-80 (2009) (recognizing the effect of Proposition 64, see § 5.13.2).
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