In Caldera v. Department of Corrections, published April 30, 2020, the Fourth District Court of Appeal, Division 3 reversed a fee award under FEHA and remanded it for recalculation. The plaintiff sued his employer for disability discrimination and harassment, based on mockery of his stutter. He contacted numerous lawyers in the Inland Empire area of California (San Bernardino and Riverside Counties), who turned him down. He eventually obtained counsel in Pasadena. He litigated the case through two appeals and a trial. His attorneys sought FEHA fees with a lodestar figure based on rates in the Los Angeles area. They sought a 2.0 multiplier, based on the importance and novelty of the suit, and the attorneys' preclusion from other work while they handled a litigation that spanned nearly a decade. The trial court calculated a lodestar rate based on the fees of attorneys in the San Bernardino area. The court found the factors for a multiplier present, but declined to grant one. It ruled that the factors considered in the multiplier had already been considered in calculating the lodestar rate, which it deemed at the higher end of San Bernardino hourly rates.
The Court of Appeal ruled that the court erred in setting the lodestar based on San Bernardino rates. When a plaintiff needs to hire out-of-town counsel, a trial court must consider counsel’s “home market rate” when setting the hourly rate, rather than the local market rate. That is necessary to encourage counsel to take cases. While the court did not necessarily abuse its discretion by declining a multiplier if the same factors went into calculating the rate, the appellate court could not determine the amount the court increased the rate based on those factors, since the trial court erred in setting the lodestar rate. The appellate court directed the trial court that its ruling would be more easily understood if it applied the factors in calculating a multiplier.
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