Maher v. Dept. of Dev. Services

Filed 6/29/06 Maher v. Dept. of Dev. Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Law Offices of Richard J. Papst and Richard J. Papst for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Vincent Scally, Jr., and Richard L. Manford, Deputy Attorneys General, for Defendants and Respondents.

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Appellant Ivette Maher challenges the trial court's award of $63,537.75 in attorney fees to the State of California and the Department of Developmental Services (Department) pursuant to the Fair Employment and Housing Act (FEHA), Government Code sections 12965, subdivision (b)^[1] and 12940 et seq., after the Department prevailed on a motion for summary judgment. The trial court erred in the dollar amount of its award of attorney fees to the Department, and we will vacate the award and remand for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

Maher filed a complaint on October 21, 2003, asserting that she had been the victim in her employment of harassment and discrimination because of her female gender and Egyptian ethnicity. She requested damages. Attached as exhibits were her complaint to FEHA and the right-to-sue letter received from FEHA. The complaint alleged that she was subjected to harassment by a coworker, including being the recipient of inappropriate and offensive remarks, and that the Department retaliated against her after she complained about her coworker and filed a FEHA complaint. The alleged retaliation included adverse employment actions.

The Department answered on November 19, 2003, denying the allegations. The Department asserted inter alia that (1) Maher had failed to exhaust her administrative remedies; (2) the Department had exercised reasonable care by disseminating workplace policies designed to eliminate discriminatory treatment and that Maher failed to avail herself of the remedies available under the workplace policies; and (3) the complaint failed to state sufficient facts to constitute a cause of action.

On July 2, 2004, the Department filed a motion for summary judgment. The motion asserted that Maher had been unable to establish that any harassment or discrimination was related to her gender or ethnicity, and that adverse employment actions had been taken because of the quality of Maher's work.

The trial court granted the motion for summary judgment, finding that the Department had three nonretaliatory reasons for taking adverse employment action against Maher, and that Maher's subjective belief that action was taken against her because of her claim of a FEHA violation could be disregarded under Code of Civil Procedure section 437c, subdivision (e).

On February 24, 2005, the Department filed a motion seeking an award of attorney fees and costs. In its memorandum of costs, the Department requested $1,906.75 in costs and $64,176.25 in attorney fees. In support of the request, Deputy Attorney General Richard L. Manford submitted a declaration setting forth broad categories of legal services performed for the Department, the number of hours expended in each grouping, and the fees requested for each group of services, e.g., 190.25 hours = $25,113.^[2] The Department later corrected its fee calculations to request a total of $63,537.75 in attorney fees.

In granting the Department the full amount of fees it requested, the trial court stated:

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