Snoeck v. Exaktime Innovations, Inc.

96 Cal.App.5th 908

314 Cal.Rptr.3d 569

Steve SNOECK, Plaintiff and Appellant,

v.EXAKTIME INNOVATIONS, INC., Defendant and Respondent.

B321566

Court of Appeal, Second District, Division 3, California.

Filed October 2, 2023

Rehearing denied October 25, 2023

Barritt Smith Miner, Perry G. Smith and Danielle N. Riddles, Irvine, for Plaintiff and Appellant.

Jackson Lewis, Michael A. Hood, Irvine, and Dylan B. Carp, San Francisco, for Defendant and Respondent.

EGERTON, J.

Plaintiff Steve Snoeck appeals from the trial court's order awarding him $686,795.62 in attorney fees after the court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation "to account for [p]laintiff's counsel's ... lack of civility throughout the entire course of this litigation." The court awarded Snoeck fees after he prevailed on one of his six causes of action against his former employer ExakTime Innovations, Inc. on his complaint for disability discrimination under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ) and related causes of action. The jury awarded Snoeck $130,088 in damages on his claim ExakTime failed to engage in a good faith interactive process with him. On Snoeck's appeal, we affirmed that verdict.

Snoeck contends the $457,863 reduction in attorney fees based on his counsel Perry Smith's incivility must be reversed for several reasons. In essence, he argues that—because the fee reduction was not associated with any costs—the court impermissibly applied it to punish Smith and had no legal authority to shift attorney fees to defendant as a sanction. ExakTime argues the trial court's downward adjustment to the lodestar sum was permissible under Ketchum v. Moses (2001) 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735 ( Ketchum ) because civility is an aspect of an attorney's skill, as this District stated in Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 276 Cal.Rptr.3d 46 ( Karton ) and on which the trial court relied.

We agree a trial court may consider an attorney's pervasive incivility in determining the reasonableness of the requested fees. A court may apply, in its discretion, a positive or negative multiplier to adjust the lodestar calculation—a reasonable rate times a reasonable number of hours—to account for various factors, including attorney skill. ( Ketchum, supra , 24 Cal.4th at pp. 1131–1134, 104 Cal.Rptr.2d 377, 17 P.3d 735 ; Karton, supra , 61 Cal.App.5th at pp. 744–745, 747, 276 Cal.Rptr.3d 46.) The record before us amply supports the trial court's finding that plaintiff's counsel was repeatedly, and apparently intentionally, uncivil to defense counsel—and to the court—throughout this litigation. We thus find no abuse of discretion and affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Earlier proceedings

Snoeck sued ExakTime for six claims: five claims under the FEHA—failure reasonably to accommodate a known or perceived disability, failure to engage in a good faith interactive process, disability discrimination, failure to prevent discrimination and retaliation, and retaliation—and a claim for wrongful termination in violation of public policy. In June 2019, a jury returned a verdict in Snoeck's favor on his claim for failure to engage in a good faith interactive process and found in favor of ExakTime on Snoeck's five other claims. The jury awarded Snoeck $58,088 in economic damages and $72,000 in non-economic damages, for a total of $130,088. In October 2019, the trial court denied Snoeck's motions for judgment notwithstanding the verdict (JNOV) and for a new trial. Snoeck appealed, and we affirmed the judgment. (See Snoeck v. ExakTime Innovations, Inc. (Oct. 29, 2021, B302178) 2021 WL 5027485 [nonpub. opn.] ( Snoeck I ).¹ In affirming the judgment, we concluded the court erred in giving CACI No. 2512, a jury instruction applicable to mixed-motive cases, but the error was not prejudicial. ( Snoeck I .) Snoeck petitioned for rehearing, which we denied. The California Supreme Court denied Snoeck's petition for review and request for publication of Snoeck I .

After the matter was remanded, Snoeck filed a peremptory challenge under Code of Civil Procedure section 170.6 to disqualify the trial judge. The court denied the peremptory challenge as untimely. Snoeck did not file a writ petition to seek review of the denial.²

2. Snoeck's motion for attorney fees

Snoeck then filed a motion for attorney fees under Government Code section 12965, former subdivision (b), now subdivision (c)(6), as the prevailing plaintiff on a FEHA claim. He asked for the lodestar amount of $1,193,870 plus a 1.75 multiplier for a total of $2,089,272.50. ExakTime opposed the motion. It argued the lodestar should be reduced based on several grounds, including, evidence of excessive billing; and/or Snoeck's attorneys’ "[d]eceptive, improper and unprofessional conduct." That conduct, ExakTime said, should be considered in the court's discretion in "evaluating the credibility of the amount and reasonableness of" the requested fees.

ExakTime noted that, in the moving papers, Snoeck's attorneys had accused ExakTime of "exploiting the Court, utilizing ‘underhanded’ tactics, presenting a ‘sham defense,’ and, in general arguing that defense counsel perpetrated a fraud on the Court." It attached several emails from Snoeck's counsel to ExakTime's counsel sent in March, May, June, and December 2019; April, August, and November 2020; March 2021; and March 2022. In them, Smith accused ExakTime's counsel of knowingly misrepresenting the law and facts to the trial and appellate courts, misconduct, and lying; referred to counsel's actions as "the Marchlewski thing again" (referring to ExakTime's primary attorney Theresa M. Marchlewski) and stated Marchlewski was "cringeworthy" and sold the court "the big lie"; referred to defense counsel as having viewed the trial court "as an easy mark," having "made a total fool of" (all capitals omitted) and "exploited" the trust of the trial judge; having committed "a brazen con," and having "duped" the trial and appellate courts.

ExakTime argued Smith's emails "served no purpose in advancing Snoeck's cause," but it appeared he was seeking compensation for them in his block billing on eight dates. ExakTime argued Snoeck's attorneys’ fees should be reduced by the amount charged after the 998 offer, or alternatively reduced to 16.6 percent of the billed hours, proportional to their success rate. It also asked the court to apply a 25 percent "deduction of Smith's billings due to their patent excessiveness."³

Snoeck's reply described ExakTime's opposition "as an effort to profit from its successful misrepresentations of law and fact in this case" and "rewarding such wrongful conduct by reducing fees would be unjust." Snoeck asserted, "ExakTime successfully used deliberate misrepresentations of law and fact to hinder Snoeck's ability to seek and obtain verdicts/award based on accurate law and facts." (Original italics.) The reply accused ExakTime of having "engaged in a knowing fraud on the trial court" and "in calculated misrepresentations to the courts in this case as an effort to limit Snoeck's success in obtaining a remedy."⁴

3. The trial court's tentative ruling

The trial court posted a tentative ruling before the April 18, 2022 hearing that partially granted Snoeck's motion, awarding him $686,795.62 in attorney fees. The court posted a revised tentative announcing the same award, but with "mostly grammatical, ... [non-]substantive" changes, which the court ultimately adopted as its final order.⁵

The trial court found Snoeck's counsel's individual hourly rates—$750 per hour for Smith and $600 and $535 per hour for two other attorneys—were reasonable. The court also corrected the requested lodestar for computation errors. The court applied a 20 percent "across the board reduction," however, to the number of hours Snoeck's counsel had requested to address billing concerns ExakTime raised, including overstaffing, duplicative and vague billing, and other issues. That reduction reduced the arithmetically corrected lodestar figure from $1,192,353.50 to $953,882.80.

The court then applied a 1.2 positive multiplier to account for the contingent nature of Snoeck's counsel's fees, including the fact counsel had worked on the case for four years "without being paid." The court explained that, at the statutory 10 percent interest rate per year, Snoeck's counsel should be awarded a 1.4 multiplier for work performed four years ago, a 1.3 multiplier for work done three years ago, a 1.2 multiplier for work from two years ago, and 1.1 multiplier for one-year old work. As that calculation would be too cumbersome, the court applied the median of 1.2 for all work done. Applying the 1.2 multiplier "for the time value of money" to the reduced $953,882.80 lodestar resulted in a revised lodestar of $1,144,659.36. Snoeck does not challenge the court's 20 percent reduction of the lodestar or the application of a 1.2 multiplier rather than his requested 1.75 multiplier.

Finally, the court applied a negative multiplier to account for Snoeck's counsel's lack of civility. The court's order reproduced "some" of the "uncivil language" from Smith's emails that ExakTime had attached. The court included 13 quoted statements from 12 different emails—two from June 2019 before the verdict, three from 2020 after Snoeck filed his appeals from the judgment and order taxing costs, seven from March 2021 while those consolidated appeals were pending, and one email sent in March 2022 months after this court issued its opinion in Snoeck I .

After quoting Smith's emails for about two and half pages, the court noted Smith's "incivility was not only directed to opposing counsel; it was also directed to the Court." The court remarked that, in its October 8, 2019 minute order, more than two years ago, it had stated, " ‘Plaintiff's counsel's tone of voice (which was not reflected in the Court Reporter's record) was...