Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. S-1500-CV-252785 AEW. Sidney P. Chapin, Judge.
Clifford & Brown, Arnold J. Anchordoquy, John R. Szewczyk, Christopher J. Hagan, for Defendants and Appellants.
Thomas J. Anton & Associates, Thomas J. Anton, Stephen P. Wainer, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Plaintiff Adie Geiser, a wheelchair user, is a faculty member at Bakersfield Community College. He sued the college and the Kern Community College District for disability discrimination, alleging a lack of wheelchair-accessible bathrooms. A jury rejected a claim based on the lack of an accessible bathroom near plaintiff’s office, but plaintiff prevailed on a claim based on the lack of accessible bathrooms at a special event on campus. The jury awarded plaintiff $37,500 in compensatory damages and the court awarded him $167,202.20 in attorney’s fees. Defendants appeal from the fee award, claiming it should have been reduced because plaintiff’s success was only partial. We will reverse the fee award and remand since we cannot be sure from the appellate record that the trial court applied the correct legal standard when exercising its discretion. Specifically, it is not clear whether the court recognized that partial success standing alone can justify a reduction in the award if the court decides under the circumstances that it should. Remand is necessary to permit the trial court to exercise its discretion in light of the correct standard.
FACTUAL AND PROCEDURAL HISTORIES
Plaintiff filed his complaint on April 30, 2004. It alleged that, due to a spinal cord injury, he is paralyzed in his lower extremities and has limited use of his hands. He uses a wheelchair. Due to the injury, plaintiff “must take special care of the maintenance of bowel and bladder function to prevent increased infections and long term kidney problems. This requires him to drink significant amounts of fluids on a regular basis and results in the frequent need to use restroom facilities.”
In 1999, plaintiff was hired as an Accommodations Coordinator at Bakersfield Community College. He was promoted in 2001, becoming an Assistant Professor and an Assistive Technology Specialist.
When he was hired, plaintiff was assigned an office on the second floor of the Student Services building. The complaint alleged that this building lacked a wheelchair-accessible bathroom and that plaintiff was compelled to use one in the Humanities building. The trip to the Humanities building was too long and plaintiff often wet or soiled his clothing in attempting to get to the bathroom. In May 2003, according to the complaint, defendants responded to plaintiff’s requests and made modifications to the bathroom near plaintiff’s office, but the bathroom was still not accessible afterward. In January 2004, defendants offered to move plaintiff’s classroom, office, and laboratory to another building, but this had not happened yet at the time the complaint was filed.
The complaint also alleged that plaintiff attended a fundraising barbecue at the college’s football field in September 2003. Portable bathrooms were placed on the field but were not wheelchair accessible. Told there was an accessible bathroom in the gym, plaintiff went there and found the building locked. He urinated on himself and was forced to go home.
The complaint made several other allegations about accessibility issues on the campus. These included insufficient accessible parking and trip hazards on campus walkways. On one occasion, plaintiff’s wheelchair tipped over on a ramp the slope of which exceeded regulatory limits. He was hurt and missed two months of work.
The complaint alleged nine causes of action. The first five were statutory. The first cause of action alleged violations of Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.), which prohibits discrimination in employment based on disability. The second cause of action alleged violations of Title II of the ADA (42 U.S.C. § 12131 et seq.), which prohibits discrimination based on disability in providing government services. Third, the complaint alleged violations of the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.), which prohibits discrimination based on disability with respect to “accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever,” and which incorporates the ADA, making ADA violations also violations of the Unruh Act. (Civ. Code, § 51, subds. (b), (f).) The fourth cause of action alleged violations of the Disabled Persons Act (Civ. Code, § 54 et seq.). The Disabled Persons Act guarantees to persons with disabilities “the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, … public facilities, and other public places.” (Civ. Code, § 54, subd. (a).) Like the Unruh Act, the Disabled Persons Act incorporates the ADA. (Civ. Code, § 54, subd. (c).) Fifth, the complaint alleged violations of the federal Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) which prohibits discrimination on the basis of disability by recipients of federal funding.
The remaining four causes of action alleged torts. The sixth was negligence; the seventh, negligent infliction of emotional distress; the eighth, intentional infliction of emotional distress; and the ninth, dangerous condition of property and premises liability. The complaint prayed for damages of at least $1 million, punitive damages, injunctive and declaratory relief, and attorney’s fees.
At trial, plaintiff explained that he was a quadriplegic: he was paralyzed from the chest down and did not have full use of his hands. He used a manual wheelchair, not an electric one, and drove a van equipped with a wheelchair lift and hand controls. He could write holding a pen in both hands and could type using one finger. He worked at the college from 8:00 a.m. to 4:00 p.m. and urinated six to eight times a day.
Plaintiff testified that he notified a superior about the trouble with the bathroom on the second floor of the Student Services building within weeks of being hired in January 1999. The toilet stall was too narrow to be used by a wheelchair user. The sink, mirror, and soap dispenser were out of reach for a wheelchair user. The superior told him the problem would be taken care of, but no action was taken immediately. A bathroom on the first floor of the Student Services building had a larger toilet stall, but it was still too small to allow the door to be closed with a wheelchair inside. Also, to reach this bathroom, it was necessary to pass through a set of double doors which plaintiff found difficult to open.
Due to these conditions, plaintiff used the accessible bathroom in the Humanities building. The trip to that building and back was lengthy—20 to 30 minutes—and plaintiff heard remarks that he “was considered kind of a flake” because of the necessary absences from his desk. On a number of occasions, plaintiff wet or soiled his pants while trying to make it to the distant bathroom and had to go home to clean himself.
In April or May of 2003, more than four years after plaintiff was hired, defendants removed the walls of the stall around the single toilet in the bathroom on the second floor of the Student Services building. This made it possible for plaintiff to use the toilet there, although he still found it difficult to open the manual door to get into that bathroom. The sink was still not accessible to a wheelchair user. Plaintiff continued to use the Humanities building bathroom.
Defendants attempted at trial to show that they provided a reasonable accommodation during the four-year period before the stall walls were removed by not penalizing plaintiff for the time it took him to get to the Humanities building bathroom and back. “It was [defendants’] contention during the course of trial … that [they] made a reasonable accommodation for Mr. Geiser by providing him as much time as he needed to use [whichever] restroom he desired,” their appellate brief argues. A defense expert testified to this effect, saying, “We’ve already heard that he was told to take as much time as you want. That’s a reasonable accommodation.” Defendants’ counsel made the same argument in his summation: Allowing plaintiff to take the time to travel to the distant bathroom in the Humanities building was a reasonable accommodation.
Another defense witness testified that, because plaintiff sent an e-mail message expressing thanks after the stall walls were removed, she believed no more needed to be done to make that bathroom accessible. Plaintiff testified that he sent this message “prematurely,” before he realized that the bathroom was still not accessible to him.
Eventually, defendants moved plaintiff’s office to the library building, where an accessible bathroom was nearby. As a result of the move, plaintiff was separated from two staff members he supervised and from some equipment he used in doing his work. He told administrators that it would be better if work on the Student Services building bathroom could be completed so that he could remain in that building, but his suggestion was not heeded.
At the barbecue in September 2003, plaintiff saw several portable toilets on the football field, but none of them were wheelchair accessible. He asked someone where the nearest accessible restroom was and was told to try the gym. The gym was locked, however, and plaintiff went home after wetting his pants.
Plaintiff’s claims were narrowed before the case went to the jury. Three of the tort causes of action—the sixth, eighth and ninth—were dismissed after the court granted defendant’s motion for nonsuit with respect to them. The prayer for punitive damages was also rejected pursuant to the nonsuit motion. The remaining tort cause of action, the seventh, was dismissed at plaintiff’s request. Plaintiff also voluntarily dismissed his third cause of action, alleging violations of the Unruh Act. This left the claims under Titles I and II of the ADA, the Disabled Persons Act, and the Rehabilitation Act.
The jury received instructions on failure to provide reasonable accommodation in plaintiff’s employment and failure to provide reasonable accommodation at the barbecue. The jury also was instructed that any recovery for the fall on the ramp was precluded by workers’ compensation laws.
The four-year lapse of time between plaintiff’s first complaint about the bathroom on the second floor of the Student Services building and defendants’ first action to make that bathroom accessible appears to have been a subject of consideration by the jury. During its deliberations, the jury sent the judge a note asking, “‘How does time factor into … reasonable accommodation?’” The court answered, “‘That is for the jurors to decide in determining if an accommodation is reasonable or not.’”
The jury returned a special verdict, reproduced in the trial court’s judgment as follows:
“1. Were Defendants an employer of Plaintiff? ANSWER: YES.
“2. Did Adie Geiser have a physical condition that limited his major life activities? ANSWER: YES.
“3. Did Defendants know of Adie Geiser’s physical condition that limited his major life activities? ANSWER: YES.
“4. Did Defendants fail to provide reasonable accommodation for Adie Geiser’s physical condition? ANSWER: NO.
“Because the Jury answered NO to question 4, questions 5 and 6 went unanswered, and the jury proceeded to question number 7.
“7. Did Defendants deny full and equal accommodations and facilities to Adie Geiser at the Bakersfield College Foundation barbecue? ANSWER: YES.
“8. Was Defendant’s conduct a substantial factor in causing harm to Adie Geiser? ANSWER: YES.
“9. What are Adie Geiser’s damages: ANSWER: $37,500.”
Plaintiff and defendants characterize this as a verdict for defendants on the first cause of action, Title I of the ADA, and a verdict for plaintiff on the fourth cause of action, the Disabled Persons Act. Title I of the ADA was the basis for the claim of discrimination in employment, and it is evident from the special verdict that the jury found defendants to have provided plaintiff with reasonable accommodation in his employment. It is also apparent that the jury found for plaintiff with respect to the barbecue, at least under the Disabled Persons Act. It is not clear, however, why the verdict regarding the barbecue should not also be regarded as a plaintiff’s verdict on the second cause of action, Title II of the ADA, which prohibits discrimination in providing government services, and the fifth cause of action, the Rehabilitation Act, which prohibits discrimination by recipients of federal funding. These causes of action were neither nonsuited nor dismissed, and the verdict form and instructions did not distinguish them from the Disabled Persons Act claim.
After the verdict, the trial court granted defendants’ motion for nonsuit with respect to plaintiff’s claim for injunctive relief. In its judgment, the court stated:
“IT IS FURTHER ADJUDGED, ORDERED, AND DECREED that plaintiff ADIE GEISER’s request for injunctive relief as to the First, Second and Fifth Causes of Action is denied. Plaintiff failed to prove, by a preponderance of the evidence, that the defendants acted deliberately in a manner that had a discriminatory effect on plaintiff. Additionally, plaintiff failed to prove, by a preponderance of the evidence, that he has any ripe claim as to a possible move to another location on the Bakersfield Community College campus or that he has any ripe claim as to a possible future or ongoing request for accommodation.
“IT IS FURTHER ADJUDGED, ORDERED, AND DECREED that plaintiff ADIE GEISER’s request for injunctive relief as to the Fourth Cause of Action is denied. The finding of liability on plaintiff’s Fourth Cause of Action is based on a single, unintentional event that occurred at the Bakersfield College Foundation barbecue on September 17, 2003. Plaintiff failed to present evidence of a subsequent failure to provide accessible toilet and lavatory facilities for disabled persons, as provided for non-disabled persons on the floor of the Bakersfield Community College stadium. Additionally, plaintiff presented no evidence that the problem he encountered on September 17, 2003, is likely to be repeated in the future.”
Plaintiff filed a motion requesting statutory attorney’s fees and costs. Since bills for some claimed attorney hours were missing, the court reduced the fees from a requested amount of $210,833.20 to $167,202.20. It also reduced the costs amount.
The court rejected defendants’ request to reduce the attorney’s fees further due to plaintiff’s partial success. It reasoned:
“Partial success … may affect the amount of fees to which the prevailing party is entitled. When a plaintiff prevails on some, but not all, claims, the court may take that partial success into account by omitting the time spent on unsuccessful claims .… [¶] … [¶] Admittedly, there is no dispute that Plaintiff achieved only partial success on his claims. [¶] However, under Vo [v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440], a partial success adjustment to the lodestar would only be warranted when special circumstances would render a full lodestar award unjust. No ‘special circumstances’ have been shown. Thus, no partial success adjustment to the lodestar is warranted.”
The court issued its ruling on January 6, 2006, granting fees and costs. Defendants filed a notice of appeal from the order. The court then filed an amended judgment adding the fee and cost award to the original damages judgment. Defendants filed a notice of appeal from the amended judgment. After the two notices of appeal were assigned separate case numbers (F049788 and F050093) by this court, the parties filed a stipulation to consolidate the appeals. We ordered the appeals administratively consolidated under No. F049788. The stipulation stated that briefing would be separate, except that the parties could incorporate in one case the arguments and record from the other by filing a request for judicial notice. Defendants filed this request without opposition and the court granted it. The parties filed one set of briefs addressing both appeals, which are essentially identical.
DISCUSSION
We review for abuse of discretion a trial court’s determination of the amount of an award of statutory attorney’s fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 447; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1176.)
Defendants’ first argument is that plaintiff “cannot be considered the prevailing party as to his unsuccessful claims .…” They contend that the trial court erred as a matter of law in this regard and that we should therefore review the decision de novo.
A party either is or is not a prevailing party for attorney’s fees purposes. A party who succeeds with respect to any significant issue in the litigation, achieving some of the benefit the party sought, is a prevailing party. (Hensley v. Eckerhart (1983) 461 U.S. 424, 433; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) Defendants confuse the question of whether a party is a prevailing one, and therefore entitled to any fee award, with the question of whether fees should be reduced for partial success. Plaintiff’s failure on some but not all of his claims is relevant to the latter inquiry, not the former. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1345-1346.)
There is no doubt in this case that plaintiff was a prevailing party. He prevailed on one of his major factual claims—that the barbecue event lacked legally adequate bathrooms—and was awarded damages. Defendants’ lengthy explanation of why plaintiff should not receive damages under the catalyst theory is, consequently, beside the point. The catalyst theory is a basis for awarding fees to a party who did not obtain a judgment in his or her favor.
Defendants’ next argument is more substantial: The court abused its discretion when it refused to reduce the fee award because plaintiff’s success was only partial. We turn to this argument now.
As we have noted, the record on appeal does not make clear what statute the verdict for plaintiff was based on. In his request for attorney’s fees, however, plaintiff relied on the fee provisions in the Disabled Persons Act (Civ. Code, § 54 et seq.). The trial court’s order awarding fees also cited those provisions.
The Disabled Persons Act provides that, in an action for damages for a violation, the remedies include “attorney’s fees as may be determined by the court .…” (Civ. Code, § 54.3.) The act also provides that the prevailing party in an action for an injunction “shall be entitled to recover reasonable attorney’s fees.” (Civ. Code, § 55.)
There is not a great deal of authority applying the fee provisions of the Disabled Persons Act. We found none addressing the specific issue presented here—the trial court’s discretion to reduce or not reduce a fee because of partial success. There is ample authority, however, applying similar fee provisions in the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and the Unruh Civil Rights Act, as well as California’s private-attorney-general fee statute, Code of Civil Procedure section 1021.5. These fee provisions promote interests similar to those promoted by the fee provision in the Disabled Persons Act, so it is appropriate here to apply cases interpreting them.
We will not rely, however, on federal cases applying federal fee-shifting statutes, such as the Civil Rights Attorney’s Fees Awards Act (42 U.S.C. § 1988). Defendants cite several of these cases, in which fee awards were vacated on appeal because they exceeded the damages awards by too great an amount or because the trial court should have given more consideration to the plaintiff’s limited success. Federal precedents in this area are based in part on federal legislative history and therefore do not help us to apply the California statutes. California and federal law on attorney fee awards have diverged in some respects and we are, of course, obliged to follow the California cases. (Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at p. 1173; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 646-647; see also Beaty v. BET Holdings, Inc. (9th Cir. 2000) 222 F.3d 607, 611, fn. 1.)
The starting point for determining fees is the lodestar method. This method requires the trial court to determine a lodestar or touchstone figure based on the hours spent by counsel on the litigation and a reasonable hourly fee. After considering a variety of factors, the trial court may then augment or reduce the fee. (Serrano v. Priest, supra, 20 Cal.3d at pp. 48-49; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at pp. 445-446; Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at pp. 1171-1172.) Limited success is among the factors the court should consider as a basis for awarding a reduced fee, especially where the plaintiff failed to obtain a substantial part of the relief he or she sought. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249-250; Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1674; Bingham v. Obledo (1983) 147 Cal.App.3d 401, 407.) The purpose of augmenting or reducing the fee is to arrive at a reasonable figure which encourages litigation of meritorious claims without encouraging litigation of claims that have little value. (Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at pp. 1171-1172.) In the end, “a party who qualifies for a fee should recover for all hours reasonably spent unless special circumstances would render an award unjust.” (Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 446.) In reviewing the trial court’s application of these standards, our attitude is deferential. “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’” (Serrano v. Priest, supra, 20 Cal.3d at p. 49; see also Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at pp. 447-448; Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at p. 1176.)
In this case, it is not clear from the record that the trial court understood the full extent of its discretion. When the court stated in its order that “a partial success adjustment to the lodestar would only be warranted when special circumstances would render the full lodestar unjust” and that “[n]o ‘special circumstances’ have been shown,” the court might have been expressing the view that it had no discretion to reduce the fee amount based on partial success alone. We believe its discretion did include the ability to treat partial success alone as a special circumstance and to reduce the fees on that basis. At oral argument, plaintiff’s counsel agreed that the trial court’s discretion included this option. We will remand to ensure that the trial court exercises its discretion in light of the correct legal standard.
We express no opinion regarding how that discretion should be exercised in this case. On the one hand, we have no doubt that the trial court had discretion to reduce plaintiff’s attorney’s fees because of partial success. Several of plaintiff’s causes of action were nonsuited or dismissed; his claim for personal injury arising from his fall on the ramp was held to be precluded by workers’ compensation law; he failed on one of the two factual claims presented to the jury; and the damages awarded were much less than those sought.
At the same time, we see nothing in the record that would deprive the trial court of discretion to decline to reduce the fee award—i.e., nothing that would render “‘clearly wrong’” (Serrano v. Priest, supra, 20 Cal.3d at p. 49) a decision to award the full lodestar if the decision is made in light of the correct standard. Partial success does not eliminate that discretion. Nor does the history of plaintiff’s refusal of settlement offers, an issue examined in Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, which was decided after the trial court’s decision in this case and which counsel discussed at oral argument. Harman concerned the role of settlement offers in the context of a fee award under a federal fee-shifting statute. The court in that case observed that “the decisional law is by no means consistent on this point,” but held that the trial court “may” consider settlement offers when deciding whether to reduce attorney’s fees. (Id. at pp. 1315-1316.) Assuming for the sake of argument that Harman is applicable and states the law correctly, we see nothing in it that requires reduction of a fee award where the plaintiff turned down settlement offers. This is simply another factor for the trial court to consider in exercising its discretion.
DISPOSITION
The judgment awarding attorney’s fees is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. The judgment is affirmed in all other respects. This opinion disposes of both appeals, Nos. F049788 and F050093. The parties shall bear their own costs on appeal.
I CONCUR: Harris, Acting P.J.
CONCURRING OPINION
KANE, J.
In rendering its attorneys’ fee award, the trial court was under the mistaken belief that it did not have the discretion to reduce the award based on plaintiff’s partial success alone. I agree with the majority that California law permits a trial court to reduce a fee claim based solely on the prevailing party’s limited success. I therefore agree that this matter should be remanded so that the trial court can apply the correct legal standard.
I cannot join in the majority’s opinion for two reasons.
First, the majority opinion states that “we cannot be sure from the appellate record that the trial court applied the correct legal standard when exercising its discretion.” I disagree. The trial court’s written order makes clear that the wrong standard was applied. After confirming that plaintiff achieved only partial success on his claims, the order expressly states a partial success adjustment is warranted only when “special circumstances would render a full lodestar award unjust” and “No ‘special circumstances’ have been shown.” The order cites Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440 (Vo) as authority for the rule that the trial court is without discretion to reduce fees due to partial success unless special circumstances are also shown. Vo only states, in dictum, that reductions are permitted when special circumstances exist, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 632-633 (Serrano). (Vo, supra, 79 Cal.App.4th at p. 446.) Serrano explains that partial success itself is a special circumstance that may justify a fee reduction. (Serrano, supra, 32 Cal.3d at p. 635, fn. 21.)
Second, while stating “We express no opinion regarding how that discretion should be exercised in this case,” the majority opinion then declares “we see nothing in the record that would deprive the trial court of discretion to decline to reduce the fee award .…” (Italics in original.) The latter statement is both unnecessary to the decision at hand and one with which I disagree. The record demonstrates that this case is an extreme example of partial success.
Plaintiff’s action had several objectives. He lost on all of them except one. Many of his causes of action were dismissed by him, nonsuited by the court or rejected by the jury or by the court. All remaining claims for compensatory and punitive damages and for injunctive relief were decided in favor of defendants. Defendants presented undisputed evidence attesting that no more than one percent of the pretrial discovery and the trial testimony bore on the claim for which plaintiff was the prevailing party. Accordingly, I part company with my colleagues who claim that there is nothing in the record that would deprive the trial court of discretion to decline to reduce the fee award due to plaintiff’s limited success.
The fact that only one percent of the pretrial discovery and trial testimony was devoted to plaintiff’s successful claim does not mean that plaintiff is only entitled to recover one percent of his total fees.
Generally, limited success does not mandate a fee reduction, but is a crucial factor for the trial court to consider in exercising its discretion. (Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1674, fn. 8; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 248; Hensley v. Eckerhart (1983) 461 U.S. 424, 439-440.) On this record, however, plaintiff’s success was so attenuated that it is difficult to imagine that a trial court, applying a correct legal standard, would decline to reduce the fee award due to plaintiff’s very limited success. Indeed, a reading of the trial court’s order suggests that, but for the erroneous reading of Vo, the trial court would have made a fee reduction adjustment.