Some Notes on Awarding Attorney Fees in California

California Code of Civil Procedure section 1038 allows a public entity defendant to recover defense costs upon prevailing against a legal action, but only where the plaintiff brought or maintained he action in bad faith or without reasonable cause. A determination of good faith involves a factual inquiry into the plaintiff’s state of mind. Bosetti v. U.S. Life Ins. Co. in City of New York (App. 2 Dist. 2009) 175 Cal.App.4th 1208. Reasonable cause is determined by (1) analyzing the facts known to the plaintiff when he or she filed or maintained the action and (2) determining whether any reasonable attorney would have thought the claim tenable. Smith v. Selma Community Hosp. (App. 5 Dist. 2010) 188 Cal.App.4th 1, review denied. A defendant may not recover costs simply because it won a summary judgement or other dispositive motion; victory does not per se indicate lack of reasonable cause. Laabs v. City of Victorville  (App. 4 Dist. 2008) 163 Cal.App.4th 1242.

Government Code section 12965 authorizes an award of attorney fees and costs to the prevailing party in an action brought under the California Fair Employment and Housing Act (“FEHA”). Whereas a prevailing plaintiff “should ordinarily recover an attorney fee,” such an award to a prevailing defendant should be permitted “’not routinely, not simply becase he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’”Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412. The U.S. Supreme Court in Christianburg emphasized that:

[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial.

It is well settled that a party claiming reasonable attorney’s fees should support its fee motion with detailed time records, evidence of issues litigated and the precise services rendered as well as a justification for the hourly rates charged. Martino v. Denevi (1986) 182 Cal.App.3d 553, 558-559. “[I]n the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client’s behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney’s services. That practice is unacceptable and cannot be the basis for an award of fees.” Id. When the moving party fails to provide this type of supporting documentation, the Court can reduce the amount requested or deny the request outright. See City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 10.