NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE B177637

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1 Filed 12/20/05 Gonzalez v. Roadway Express CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE MARTHA JANA GONZALEZ, Plaintiff and Respondent, v. B (Los Angeles County Super. Ct. No. BC266431) ROADWAY EXPRESS, INC. et al., Defendants and Appellants. APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed and remanded with direction. Appellant. Baker & Hostetler, Jack I. Samet and Loura L. Alaverdi for Defendant and Respondent. Excelus Law Group, Inc., John P. Dwyer and William W. Bloch for Plaintiff and

2 INTRODUCTION In this employment-related litigation, defendants and appellants Roadway Express, Inc. (Roadway) and its former employee Jordan Mossman (Mossman) (collectively defendants) appeal a post-judgment order awarding plaintiff and respondent Martha Jana Gonzalez (plaintiff or Gonzalez) the sum of $517, in attorney fees pursuant to Government Code section 12965, subdivision (b). 1 Roadway claims the trial court abused its discretion by setting the hourly rate of plaintiff s attorney, William Bloch (Bloch), at $375 per hour as opposed to $300 per hour. Finding no abuse of discretion, we affirm. In addition, we grant plaintiff s request for attorney fees on appeal. We therefore remand the matter to the trial court for a determination of plaintiff s attorney fees and costs on appeal. FACTUAL AND PROCEDURAL BACKGROUND In June 2000, plaintiff began her employment with Roadway as a billing clerk. After starting her employment, plaintiff s supervisor, defendant Mossman, subjected plaintiff to sexually harassing comments, threats, and assault. Among other acts, Mossman told plaintiff about sexual experiences with other women, used racial epitaphs towards plaintiff, commented inappropriately upon her work attire, approached her from behind to smell her skin scent, asked plaintiff to touch his bottom, told plaintiff dirty jokes, and swatted her on the rear-end. In January 2001, plaintiff and a co-worker complained to a higher supervisor. At that point in time, Mossman discontinued the overtly sexual comments and behavior. 1 Unless otherwise indicated, unspecified statutory references are to the Government Code. Section 12965, subdivision (b), provides in pertinent part: In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity. 2

3 Mossman, however, treated plaintiff with an angry demeanor. In August 2001, Mossman was terminated after an altercation with another employee. On January 15, 2002, Gonzalez filed suit against defendants for alleged violations of the Fair Employment and Housing Act (FEHA, et seq.), as well as other common law causes of action. Gonzalez alleged five causes of action against Roadway, including: (1) gender-based discrimination in violation of FEHA; (2) retaliation in violation of FEHA; (3) hostile work environment in violation of FEHA; (4) intentional infliction of emotional distress; and (5) negligence. 2 In addition, Gonzalez alleged four causes of action against Mossman, including: (1) assault; (2) battery; (3) hostile work environment; and (4) intentional infliction of emotional distress. Trial commenced on March 24, After 20 trial days, on May 17, 2004, pursuant to a special verdict form, the jury returned a verdict in favor of Gonzalez and against Roadway and Mossman for a total amount of $187,500. As against Roadway, the jury found in favor of Gonzalez on the cause of action for hostile work environment in violation of FEHA and awarded her $100,000 for past non-economic loss, including mental suffering. The jury also found in favor of Gonzalez on the cause of action for intentional infliction of emotional distress and awarded her $30,000 for past non-economic loss, including mental suffering. The jury found that Gonzalez failed to mitigate her damages and reduced the damages awarded against Roadway by $10,000. The jury did not award Gonzalez punitive damages against Roadway. Thus, the jury awarded Gonzalez a total of $120,000 against Roadway. The jury found that Roadway was not liable for the alleged gender-based discrimination in violation of FEHA, or the alleged claim for retaliation in violation of FEHA. As against Mossman, the jury found in favor of Gonzalez on the cause of action for hostile work environment in violation of FEHA; and awarded her $39,706 for past 2 On May 29, 2003, the trial court granted Roadway s motion for judgment on the pleadings as to the negligence cause of action. 3

4 non-economic loss including mental suffering. The jury also found in favor of Gonzalez on the cause of action for battery and awarded her $3,970 for past non-economic loss including mental suffering. The jury further found Mossman liable for intentional infliction of emotional distress and awarded Gonzalez $23,824 for past non-economic loss including mental suffering. The jury found Mossman liable for punitive damages. 3 Thus, the jury awarded Gonzalez a total of $67,500 against Mossman. The jury found that Mossman was not liable for the alleged assault. Following the jury verdict, plaintiff filed a memorandum of costs and a motion for attorney fees pursuant to section 12965, subdivision (b). Pursuant to the motion for attorney fees, plaintiff sought attorney fees in the amount of $519,018.75, for work performed by two attorneys, William Bloch and Mark Strom, as well as a paralegal and an expert witness. Plaintiff s attorneys represented plaintiff pursuant to a contingency fee contract. Plaintiff stated that a reasonable hourly billing rate for Bloch was $375 per hour, $300 for Strom, $125 for the paralegal, and $350 for the expert witness. In support of the motion for attorney fees, plaintiff submitted detailed time logs. In his supporting declaration, Bloch explained that he voluntarily reduced the fee request by 10 percent. In addition, in his declaration, Bloch presented his educational background, qualifications and experience in civil rights and employment litigation. Bloch graduated from UCLA in 1980 and from UC Berkeley School of Law (Boalt Hall) in He was admitted to the bar in In his declaration, Bloch noted that he charged hourly clients the rate of $300 per hour. Bloch explained, however, that with respect to civil rights litigation, he represented clients on a contingency fee basis. Based upon his education and background and 3 The parties stipulated to a $25,000 amount for the punitive damages awarded against Mossman, apportioned on a pro rata basis among the causes of action for which the jury found that Mossman was liable to plaintiff. 4

5 experience, plaintiff requested the trial court to set Bloch s reasonable hourly rate at $375 per hour. Bloch submitted declarations from other attorneys as to the reasonable rates for attorneys in the region. For example, plaintiff submitted the declaration of Attorney Marvin Krakow, who graduated from Yale Law School in Krakow explained his educational and employment history and declared that the hourly rates for experienced civil rights attorneys in the Los Angeles area varied from $350 to $750 per hour. Krakow also declared that he had worked with Attorney Bloch and that Bloch ranks with the most professional and skilled of the plaintiff s attorneys within the California employment lawyer s bar. Krakow declared that based upon his experience, the rate of $425 per hour for an attorney of Bloch s stature was within the market rate for the Los Angeles area. Plaintiff also submitted the declaration of Attorney Gerald Knapton, as an expert witness on the issue of attorney fees. Knapton attended Brown University, and the UCLA School of Law. Knapton declared that he had developed a specialty in litigation management and fee disputes, having been qualified to testify as an expert witness in 25 fee-dispute cases. Knapton declared that he was familiar with attorney fees cases and reviewed rate surveys as they became available. 4 Knapton reviewed the time sheets and declared that the total time submitted, 1,532 hours, during the 28 months of litigation, was reasonable and not excessive. As for the 4 Specifically, Knapton declared: As a result of reviewing legal bills and files, I am familiar with the legal billing practices and rates of a great number of medium-sized and small firms and almost all of the major law firms in the United States and have been called upon during the last twelve years to render hundreds of opinions regarding the reasonableness of billing practices, including hourly rate charges. In addition, I have conducted surveys of attorneys hourly rate structures in the Southern California area as well as across the United States. Because of this work, I am familiar with the usual and customary hourly rates actually charged for legal work, especially in the Los Angeles area. 5

6 hourly rate, Knapton declared that almost no attorneys litigate this type of case on an hourly basis. Thus, looking to what defense attorneys charge for defending a civil rights/employment related litigation matter, Knapton declared that an attorney of Bloch s stature would be entitled to an hourly rate between $250 to $600 per hour. Because Bloch was not associated with a large firm, Knapton declared that it would have been inappropriate to award plaintiff an hourly rate of $500 to $600 for Bloch s time. Instead, Knapton declared that the $375 hourly rate was appropriate for Bloch. Knapton also noted that he was under the understanding that Roadway considered this to be a test case and aggressively defended the lawsuit. In addition, plaintiff noted that defendants lead trial counsel, Jack Samet of Baker & Hostetler, charged $525 per hour. Plaintiff sought a multiplier of 2.5 due to the asserted complexity and risk associated with the case. Defendants filed an opposition. Among other arguments, defendants asserted, based upon an expert declaration, that a reasonable hourly rate for Attorney Bloch was $300 per hour. Defendants also presented a declaration from an expert witness, Attorney Kenneth Moscaret. Moscaret described the market layer theory for determining reasonable hourly rates. He declared that billing rates of attorneys from small firms, midsize firms and large firms constitute three recognizable market layers. Summarizing, Moscaret declared that the rates charged by small firms are not commensurate with the rates of large firms. Based upon his review of the rates, Moscaret declared that the $375 rate was excessive and Bloch should be entitled to no more than $300 hour. Based upon the parties briefing and oral argument, the trial court awarded Gonzalez $89, in costs and $517, in attorney fees. The trial court determined that the $375 hourly rate for plaintiff s counsel, Bloch, was reasonable. 5 The 5 The trial court also determined that the $300 lodestar hourly rate for plaintiff s cocounsel, Mark Strom, was reasonable. In addition, the trial court found that the reasonable hourly rate of plaintiff s counsel s paralegal was $90 per hour, not $125 per 6

7 trial court explained during the hearing: This requires the court to basically evaluate the expertise [and] performance of plaintiff s counsel. And I think Mr. Bloch, considering his very [formidable] opposition, performed very well in this case, and I think [$]375 is a reasonable amount. 6 The court also found that the number of hours submitted for plaintiff s counsel s time was reasonable and necessary. The court granted plaintiff an additional 15 hours at $375 per hour for work on the fee-related moving papers. The trial court denied Gonzalez s request for a multiplier to increase the attorney fee award. Roadway timely filed a notice of appeal from the order awarding attorney fees. CONTENTIONS Roadway contends that the trial court abused its discretion by determining the hourly rate of plaintiff s attorney to be $375 per hour as opposed to $300 per hour. STANDARD OF REVIEW We review for abuse of discretion. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134 [ The amount of an attorney fee to be awarded is a matter within the sound discretion of the trial court.... The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination. ].) In PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, the Supreme Court reiterated: 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 -- hour, and reduced the amount of fees requested by $7, Neither party contests any of these trial court findings. 6 In addition, at a prior hearing on the motion for attorney fees, the trial court stated: I m pretty familiar with what lawyers get, big firms, small firms. I see it all the time. I know what it is. Okay. 7

8 meaning that it abused its discretion. (Id. at p. 1095, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49; see also Children s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782 [ [A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of the fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances. ].) A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions [and ambiguities] are indulged in favor of its correctness.... [Citations.] (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) The burden of demonstrating error rests on the appellant. (Id. at p. 632.) DISCUSSION Defendants claim that the trial court abused its discretion by determining that $375 was a reasonable hourly rate for plaintiff s counsel, Bloch. We disagree and affirm the award of attorney fees. Defendants have failed to show that the amount awarded is so large that it shocks the conscience and suggests that passion and prejudice influenced the determination, or that the award is manifestly excessive in the circumstances. In this case, the trial court used the lodestar method to calculate plaintiff s attorney fees. In PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, the Supreme Court explained: [T]he fee setting inquiry in California ordinarily begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the 8

9 trial court s analysis to an objective determination of the value of the attorney s services, ensuring that the amount awarded is not arbitrary. (Id. at p ) In PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at page 1096, the Supreme Court further explained: The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or with the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. In addition, it is established that the trial court may determine the reasonable hourly billing rate based upon an expert declaration regarding prevailing rates in the region for lawyers with comparable skills and experience. (Children s Hospital & Medical Center v. Bonta, supra, 97 Cal.App.4th at pp ) Substantial evidence supports the trial court s determination that $375 per hour was a reasonable billing rate for plaintiff s counsel, Bloch. The trial court therefore did not abuse its discretion. The voluminous materials supplied by plaintiff in support of the motion for attorney fees provides ample support for the hourly rate set by the trial court. Bloch graduated with honors from UCLA in He graduated from Boalt Hall in There, he was an associate editor of the International Tax & Business Lawyer, and recipient of the American Jurisprudence Award in Insurance Law. Bloch has been a member of the California State Bar since During that period of time, he has represented numerous clients in employment and civil rights matters. In one employment-related jury trial lasting over three weeks, Bloch obtained a $2.37 million verdict. Plaintiff also submitted an expert declaration from Attorney Krakow attesting to the fact that Bloch ranks with the most professional and skillful lawyers within the 9

10 California State Bar. Krakow, a Yale educated attorney, declared that based upon his experience, a rate of $425 per hour was a reasonable rate for an attorney of Bloch s stature. 7 In addition, plaintiff presented the expert declaration of Attorney Knapton, who has testified as an expert witness in a number of fee-related disputes. Knapton reviewed Bloch s time sheets and indicated that he was familiar with the work performed by Bloch in this case. Knapton declared almost no attorneys handle this type of litigation on an hourly basis. Knapton rejected the proposition that the trial court should be primarily guided by what Bloch charges his hourly clients. Instead, Knapton looked to what defense attorneys charge on an hourly basis. In this regard, Knapton declared that an attorney of Bloch s stature would be entitled to a rate between $250 to $600 an hour. However, Knapton further explained that because Bloch was not associated with a large firm, it would have been inappropriate to award him a $500 to $600 hourly rate. On this point, Knapton further explained that Bloch was an efficient and experienced attorney. Knapton also noted that Roadway considered this a test case and poured a tremendous amount of resources into defending the matter. Based upon all of these issues, Knapton concluded that $375 was a reasonable hourly rate for Bloch s services. 7 In addition, plaintiff submitted the declarations of attorneys Michael Marx, David Mallen and Norman Pine. Marx, a real estate attorney at Dewey Ballantine, declared: Even with access to very skilled litigators at my firm (most of whom are engaged in this office in business-related litigation), I consider Mr. Bloch s knowledge, strategic insights, negotiating ideas, and judgment among the top of attorneys I know and consult with, and I work commonly with smart attorneys who are able negotiators, from many large firms in this and other cities. Mallen, a sole practioner focusing on employment law, declared that he considers Bloch s knowledge, strategic insights, and judgment among the top of the attorneys with whom he works. Pine, an appellate attorney focusing on employment law, declared that he considered Bloch knowledgeable and very skilled in employment law. 10

11 In addition, the trial court commented that it was familiar with the rates charged by large and small firms in the region. The trial court also praised Bloch s performance, stating that Bloch performed very well given his formidable opposition. The foregoing demonstrates that the $375 hourly rate allowed by the trial court is within the range of reasonable rates charged by comparable attorneys doing comparable work. The award is not excessive in these circumstances. (Children s Hospital & Medical Center v. Bonta, supra, 97 Cal.App.4th at p. 782.) Defendants, however, claim that the trial court abused its discretion by determining that $375, as opposed to $300, was a reasonable hourly rate for Bloch for the following reasons: (1) the $375 amount was in excess of the amount which would be reasonable under the market layer theory as explained by defendants fee expert Kenneth Moscaret; (2) the case did not involve novel or difficult issues; (3) the damages award was disproportionate to the award of attorney fees; (4) plaintiff did not prevail on most of the FEHA claims; (5) plaintiff failed to recover punitive damages against Roadway and there was the lack of congruity between this case and another case involving a plaintiff who sued Roadway in San Bernardino County; and (6) Bloch s lawyering abilities resulted in unnecessary delay and disrupted the trial. 8 Defendants assert that these factors support the conclusion that the trial court was not justified, and abused its discretion, by enhancing or setting Bloch s hourly rate at $375. We reject these contentions. 8 In their opening brief, defendants also asserted that the trial court erred because it did not apportion certain fees in relation to seven depositions which were relevant to this action and two other separate lawsuits against Roadway. In their reply brief, however, defendants acknowledged that this argument did not apply to the issue of the reasonableness of the hourly rate: Appellants do not dispute that the matter of apportionment of depositions costs is unrelated to the setting of Mr. Bloch s hourly rate. We therefore do not consider this issue on appeal. 11

12 1. The Market Layer Theory Does Not Apply Defendants have presented no authority that any court in California has adopted the market layer theory as the guideline for determining attorney hourly rates in feedispute cases. Defendants expert, Moscaret, declared that he was aware of no such authority. In light of the guidelines set forth by the California Supreme Court in PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1085 and Serrano v. Priest, supra, 20 Cal.3d 25, we reject application of the market layer theory. In any event, the record shows that the trial court awarded plaintiff an hourly rate that was fully consistent with defendants market layer theory. Defendants expert, Moscaret, declared that the hourly billing rates for partners in large firms is $400-$600. Moscaret did not provide a range for small firms or sole practitioners. He did declare, however, that a sole practioner may earn 60 percent more in a large law firm. Using these numbers, and accepting that a partner in a large firm making $600 an hour is making approximately 60 percent more than a sole practioner, the trial court was well within its discretion to award plaintiffs $375 an hour for Bloch s time. Moreover, Moscaret reviewed the billing rates from one small firm. There, a partner with 23 years of experience was billing her clients $340 per hour. This fact supports the conclusion that the trial court did not abuse its discretion by awarding plaintiff $375 an hour for Bloch s time. Finally, plaintiff s expert, Knapton, provided a declaration further showing that the trial court s determination of $375 per hour was consistent with the rates charged by small firms, which is consistent with defendants market layer theory. Knapton declared that the range for Bloch s services was $250 to $600 per hour, but cautioned that the $500-$600 range was too high because Bloch did not work for a large firm. Given Roadway s aggressive litigation tactics, the length of the trial, and the risk undertaken by Bloch, Knapton declared that the $375 rate was reasonable under the facts of this case. 12

13 2. The Alleged Absence of Novel Issues Does Not Show an Abuse of Discretion Defendants contend that the case involved no novel or difficult issues and therefore the trial court improperly enhanced or set Bloch s hourly rate. We reject this assertion. In PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at page 1096, the Supreme Court explained that the trial court may consider a number of factors in determining the lodestar amount, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. Whether or not the case involved novel issues is only one aspect of the weighing process. By all accounts this was a strenuously litigated matter. The jury trial consumed 20 court days. Defendants do not dispute that this case was a test case for Roadway, and one that they aggressively litigated. On this record, the alleged absence of novel issues does not show that the trial court abused its discretion. 3. The Proportionality of the Damages Award to the Fee Award Does Not Show an Abuse of Discretion We reject the assertion that the hourly rate of $375 was an abuse of discretion because the total amount of the fees awarded was twice the size of the damages awarded to plaintiff. In numerous cases, the appellate courts in California have upheld FEHA fee awards that substantially exceeded the monetary recovery in the case. (See Flannery v. Prentice (2001) 26 Cal.4th 572, 576 [fee award of $971,684 with damages of $250,000]; Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 422, 429 [affirmed fee award of $1,095, with damages of $490,000]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, [affirmed fee award of $470,000 with damages of $37,500]; and Weeks v. Baker & McKenzie (1998) 63 13

14 Cal.App.4th 1128, 1137, 1169 [affirming fee award of $921,565 with damages of $50,000]; see also Riverside v. Rivera (1986) 477 U.S. 561, 565 [affirming fee award of $245, with damages of $33,350].) 9 In any event, even if the trial court awarded plaintiff only $300 per hour for Bloch s time, as asserted by defendants, the amount of the attorney fee award would still be double the damages awarded to plaintiff. Bloch expended 1, hours in litigating this case. A $75-dollar reduction would have amounted to an approximate $95,000 downward fee adjustment for a total fee award of approximately $422,135. Defendants concede that this amount would not have constituted an abuse of discretion. Defendants have offered no rationale as to why, on one hand, the $422,135 does not show an abuse of discretion in relation to the damages award of $187,500, but, on the other hand, the actual fee award of $517, in relation to the damages award of $187,500 does show an abuse of discretion. 9 In Riverside v. Rivera, supra, 477 U.S. 561, the United States Supreme Court explained why attorney fees should not be limited to a proportion of a damages award in these types of civil rights cases: A rule that limits attorney's fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress purpose in enacting [42 United States Code] Congress enacted 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. [Citation.] These victims ordinarily cannot afford to purchase legal services at the rates set by the private market.... Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort but produce only small monetary recoveries. (Id. at pp ) A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. (Id. at p. 578.) 14

15 4. The Adverse Judgment on a Portion of Plaintiff s FEHA Claims Does Not Show an Abuse of Discretion In FEHA cases, [a]ttorneys generally must pursue all available legal avenues and theories in pursuit of their clients objectives; it is impossible, as a practical matter, for an attorney to know in advance whether or not his or her work on a potentially meritorious legal theory will ultimately prevail. (Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at p. 424, quoting Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250.) In Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th 418, the court addressed the issue of allocating fees between successful and unsuccessful FEHA causes of action. The court first noted that the plaintiff there voluntarily reduced total billed hours by over 20 percent to reflect lack of success on two causes of action. Then, the court explained: The [trial] court also agreed with [the plaintiff s] contention that the harassment and discrimination claims were so intertwined that a further allocation of fees between successful and unsuccessful claims was not possible because the claims were based on the same set of facts and course of conduct. The trial court was in the best position to understand the relationship between the claims and to determine whether time spent on a related claim contributed to [the plaintiff s] objectives at trial. [Citation.] Where a lawsuit consists of related claims, and the plaintiff has won substantial relief, a trial court has discretion to award all or substantially all of the plaintiff's fees even if the court did not adopt each contention raised. [Citation.] This rule is particularly apt here where [the plaintiff s] claims of harassment and retaliation were based on the common core of facts.... That he prevailed on only one theory under that claim is not dispositive. (Id. at pp ) This same rationale applies in this case. Plaintiff won substantial relief. A review of the trial testimony of plaintiff shows that the FEHA causes of action were sufficiently intertwined that an allocation of fees between the successful hostile work environment claims and unsuccessful gender discrimination and retaliation claims was not possible. 15

16 All of the claims were primarily grounded in the conduct of defendant Mossman. Thus, on this record, pursuant to the rationale of Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th 418, the trial court did not abuse its discretion. In addition, consistent with the Greene case, the record shows that Bloch voluntarily reduced his time, the number of hours, by 10 percent. This fact was stated in the motion for attorney fees, and a fact upon which the trial court impliedly relied in refusing to allocate fees further between successful and non-successful causes of action. 5. The Failure to Award Punitive Damages Against Roadway in This Case and the Khoury Case Are Irrelevant Defendants note that plaintiff did not obtain punitive damages in this case. Defendants also explain that in a sexual harassment case tried in San Bernardino County against Roadway, the Khoury case (Khoury v. Roadway Express, Inc. et al., Super. Ct. No. VCV016941), the plaintiff obtained punitive damages against Roadway for a total award of $6 million. In that case, the trial court awarded the plaintiff $295,960 in attorney fees, based upon a $200 hourly rate. Using a simple comparison, defendants contend that in this case because plaintiff obtained a substantially smaller damages award and no punitive damages, the hourly fee award of $375 as opposed to $300 was an abuse of discretion. We reject this comparison argument. As noted above, an award of attorney fees is based upon the prevailing rates in the community for similar work. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p ) Defendants presented no evidence that the prevailing rates in San Bernardino County are similar or comparable to rates in Los Angeles County. Moreover, the fee application in the Khoury case shows that the plaintiff s attorney did not request any more than $200 per hour. Thus, it is speculation as to what the trial court in that case would have done had Khoury s counsel requested a higher hourly rate. In addition, there is no evidence in this record as to how the trial court in the Khoury case appraised the abilities of the plaintiff s counsel. 16

17 Moreover, defendants argument is flawed for an additional reason. Defendants assert that the trial court would not have abused its discretion had it awarded plaintiff $300 an hour for Bloch s time. As explained above, a $75-dollar reduction in the hourly rate would have amounted to a total fee award of approximately $422,135. This amount would still have been greater than the fee awarded in the Khoury case. Defendants concede that such an amount would not have been an abuse of discretion. Defendants, however, fail to offer a meaningful distinction as to why $375 an hour is an abuse of discretion in comparison to the Khoury case and $300 an hour is not an abuse of discretion, when both fees awards are substantially larger than the actual fee award in the Khoury case. 6. Defendants Criticism of Bloch s Lawyering Abilities Do Not Show an Abuse of Discretion Defendants claim that Bloch s performance at trial showed that the trial court abused its discretion by awarding Bloch $375 an hour as opposed to $300 an hour. We reject this contention. Defendants cite three instances in which Bloch s trial tactics allegedly resulted in undue and unnecessary delay. First, Bloch made a reference in his opening statement about an incident of alleged sexual harassment in 2003 by someone other than defendant Mossman, which the trial court referred to as the Greenberg incident. This resulted in two additional depositions during trial. After a careful review of the facts and the legal authorities, the trial court denied plaintiff s motion to amend the complaint, and barred plaintiff from mentioning the event to the jury. Second, defendants assert that Bloch attempted to introduce evidence of other acts of alleged misconduct in the workplace involving other individuals as evidence probative of sexual harassment by Mossman against plaintiff. Apparently, the trial court barred plaintiff from presenting this evidence. Third, defendants assert that because of Bloch s trial tactics, Bloch was forced to put plaintiff on the stand a second time in relation to her claim for emotional distress. 17

18 Defendants have failed to show that the trial court abused its discretion. This case was litigated aggressively. Trial lasted over 20 court days. The reporter s transcript is voluminous and comprises of 13 separate volumes. Approximately 20 witnesses testified. In addition, we have been presented with a 15-volume clerk s transcript. On this record, Bloch s trial conduct appears to be nothing more than the normal course of events in a hotly contested piece of litigation. There is no evidence that plaintiff s counsel, Bloch, was sanctioned or otherwise reprimanded by the trial court for anything approaching unethical or dilatory conduct. In any event, the trial court was keenly positioned to observe Bloch s lawyering abilities. In fact, the trial court was complimentary, stating that Bloch performed very well considering his formidable opposition. 10 DISPOSITION The order is affirmed. Plaintiff Gonzalez is also to recover costs and attorney fees on appeal. (Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p [ Statutory authorization for the recovery of attorney fees incurred at trial necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise. ].) The matter is remanded to the trial court with direction to conduct a 10 Notably, defendants fee expert, Moscaret, declared: Mr. Bloch appears to be a good plaintiff s employment attorney with good credentials who has handled enough of these cases to deserve respect. 18

19 hearing to determine the reasonable amount of attorney fees and costs to be awarded to plaintiff Gonzalez in relation to this appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS We concur: KLEIN, P.J. KITCHING, J. ALDRICH, J. 19

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