HARVEY, v. SYBASE, INC.,

Filed 4/18/08

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Story Continued From Part I ..

II. HARVEYS CROSS-APPEAL

A. Substantial Evidence Supported the Jurys Award of Punitive Damages^*

Harvey challenges the trial courts decision to grant JNOV to Sybase on the issue of punitive damages. In its posttrial order, the trial court found as a matter of law that the punitive damage award was wrong and that there was no substantial evidence to support it. We disagree with the trial courts ruling, and order reinstatement of that damages award.

1. Standard of Review

The trial court may grant [JNOV] only if the verdict is not supported by substantial evidence. (Begnal v. Canfield & Associates, Inc., supra, 78 Cal.App.4th at p. 72.) We may uphold the order granting JNOV only if, reviewing all the evidence in the light most favorable to [Harvey], resolving all conflicts, and drawing all inferences in her favor, and deferring to the implicit credibility determinations of the trier of fact, there was no substantial evidence to support the jurys verdict in her favor. (Ibid.; see also Cloud v. Casey (1999) 76 Cal.App.4th 895, 911 [applying standard to JNOV on jurys finding that employer acted with malice and oppression].)

Under Civil Code section 3294, subdivision (a), a party may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Italics added.) Despite this more stringent burden of proof at the trial level, we nevertheless confine our review to determining whether the record contains evidence of circumstances warranting the imposition of punitive damages. (Patrick v. Maryland Casualty Co. (1990) 217 Cal.App.3d 1566, 1576.)

2. The Jurys Finding of Intentional Discrimination Was Sufficient to Support an Award of Punitive Damages

Sybase defends the trial courts grant of JNOV on the punitive damages issue by arguing that evidence that establishes liability under [the] FEHA does not automatically support punitive damages. Relying on a number of tort cases, Sybase contends that courts have . . . required something more than the commission of a tort to justify imposition of punitive damages.^[1] Thus, Sybase argues, the mere fact that the jury found that White-Ivy had discriminated against Harvey is insufficient, standing alone, to support an award of punitive damages.

Sybase is wrong. Employment discrimination is a species of intentional tort. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212 [listing civil rights violations and job discrimination among intentional torts].) In actions involving intentionally wrongful conduct, the evidence sufficient to establish the tort is usually sufficient to support punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1286, italics added.) Civil Code section 3294, subdivision (a), permits recovery of punitive damages upon proper proof of malice. Under that section, one definition of malice is conduct which is intended by the defendant to cause injury to the plaintiff. (Civ. Code,  3294, subd. (c)(1).) The evidence that supported the jurys determination that White-Ivy intentionally discriminated against Harvey in terminating her also suffices to support an award of punitive damages. (Tomaselli, at p. 1286.) The jury found that Harvey had proved by clear and convincing evidence that White-Ivy had acted with malice, fraud or oppression in terminating Harvey. Neither the statute nor the case law requires more.^[2]

Accordingly, we reverse the trial courts grant of JNOV to Sybase on the issue of punitive damages and reinstate the original jurys punitive damages award. (Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 575.)

B. The Trial Court Properly Granted Nonsuit on Harveys Claims of Wrongful Termination in Violation of Public Policy

In her cross-appeal, Harvey challenges the superior courts grant of nonsuit on her claims of wrongful termination in violation of public policy.^[3] Harvey alleged in her complaint that [t]he decisions to terminate [her] employment and to refuse to rehire [her] were made in retaliation for [her] alleged disclosure and discussion of information about [Sybases] working conditions with other employees of [Sybase]. She claimed the decisions to terminate and not rehire her violated the public policies set forth in Labor Code sections 232.5^[4]and 923. Harvey later amended her complaint to include a claim under Labor Code section 232^[5]that she was terminated and not rehired because of her alleged disclosure and discussion of information about [Sybases] working conditions and [her] salary with other employees of [Sybase]. On appeal, Harvey no longer relies on section 923 (see fn. 6, ante, p. 7) and confines her argument to her claims based on sections 232 and 232.5.

Although Harveys claims based on these statutes are closely related factually, we analyze each of the statutory provisions separately to determine whether Sybase was entitled to judgment as a matter of law on these claims. In reviewing a grant of nonsuit, the appellate court views the evidence in the light most favorable to plaintiff to determine whether evidence presented by plaintiff is insufficient to permit the jury to find in her favor. (See Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)

1. Elements of the Claim

In California, employment contracts are generally terminable at will. (Lab. Code,  2922.) Thus, [a]n employer may discharge an at-will employee for no reason, or for an arbitrary or irrational reason.  (Carter v. EscondidoUnionHigh School Dist. (2007) 148 Cal.App.4th 922, 929.) On occasion, employers have abused the at will relationship by discharging employees for reasons contrary to public policy as expressed in statutory or constitutional mandates. In response, courts have created an exception to, or qualification of, the at will employment principle . . . : An employer may not discharge an at will employee for a reason that violates fundamental public policy. This exception is enforced through tort law by permitting the discharged employee to assert against the employer a cause of action for wrongful discharge in violation of fundamental public policy. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 (Stevenson).)

To establish a claim for wrongful termination in violation of public policy, a plaintiff must prove: (1) an employer-employee relationship, (2) termination, (3) a nexus between the termination and the employees engagement in protected activity, (4) causation, and (5) damages. (See Chin et al., Cal. Practice Guide: Employment Litigation, supra,  5:10, p. 5-2, citing Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.) California courts have recognized a tort cause of action for wrongful termination in violation of public policy in a number of instances, including where an employee is discharged for exercising . . . a statutory or constitutional right or privilege. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 454.) However, where an employee asserts that she has been discharged for exercising a statutory right, she must prove that she actually exercised the right protected by the statute. (See Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 539 [plaintiff could state no claim for whistleblowing under Lab. Code,  1102.5, which prohibits retaliation against employees who disclose violations of law to government or law enforcement agencies, where plaintiff made no complaints to any governmental agency].)

2. Sybase Was Entitled to Judgment on Harveys Labor Code Section 232 Claim Because Harvey Did Not Disclose the Amount of Her Wages

Labor Code section 232, subdivision (c) prohibits an employer from discharging an employee who discloses the amount of his or her wages. In Grant-Burton, the Second District held that section 232, in combination with Labor Code section 923 and provisions of the National Labor Relations Act (29 U.S.C.  151 et seq.), could support a claim of wrongful termination in violation of public policy. (Grant-Burton, supra, 99 Cal.App.4th at p. 1376.) We conclude, however, that no substantial evidence supports Harveys claim under this statute.

Harvey argues her conversations with Van der Vorst concerning White-Ivys announced intention to demote Harvey and cut her pay provide a factual basis for her claim under Labor Code section 232. Harvey claims that she disclose[d] the amount of her wages during these conversations and that Sybase later terminated her in part because of this claimed disclosure. The undisputed evidence, however, establishes that she did not disclose the amount of her wages to Van der Vorst.

Harvey admitted in her trial testimony that, during her meetings with Van der Vorst, she did not tell him how much she made and did not discuss the amount of her wages. This was entirely consistent with Van der Vorsts account of their conversations. He testified Harvey did not discuss her salary with him and they did not speak about the amount of the proposed pay cut. In light of this consistent and undisputed testimony, it is apparent that Harvey did not disclose[] the amount of . . . her wages. (Lab. Code,  232, subd. (c).) The trial courts grant of nonsuit to Sybase on this claim was, therefore, entirely proper.^[6] (See Hejmadi v. AMFAC, Inc., supra, 202 Cal.App.3d at p. 539.)

Harvey seeks to avoid this result by relying on Grant-Burton. According to Harvey, the plaintiff in Grant-Burton did not disclose any amount of her wages whatsoever, but only the fact that her compensation package did not include a bonus. Harvey also points to dictum in Grant-Burton in which the court stated that [t]he very purpose of [Labor Code section 232] is to protect employees who want to discuss some aspect of their compensation, for example, a possible increase in pay, perceived disparities in pay, or the awarding of bonuses. (Grant-Burton, supra, 99 Cal.App.4th at pp. 1376-1377, underscoring by Harvey.) Harvey reasons that if section 232 protects a discussion about a possible increase in pay, it also protects the disclosure of a threatened decrease in pay. As we explain, Grant-Burton will not bear the weight Harvey places upon it.

In Grant-Burton, the plaintiff, a marketing director for a company, had taken part in a meeting with her fellow marketing directors at which the subject of bonuses was discussed. (Grant-Burton, supra, 99 Cal.App.4th at p. 1366.) At that meeting, plaintiff revealed to her coworkers that she did not receive a bonus. (Id. at p. 1367.) Six days later, the company fired the plaintiff, and company officials later admitted that plaintiffs discussion of bonuses was one of the reasons for her termination. (Id. at pp. 1367-1368.) Contrary to Harveys contention, the court in Grant-Burton expressly recognized that the plaintiff in that case did disclose the amount of her wages. Indeed, in rejecting the employers claim that the plaintiff had not done so, the court noted, Grant-Burton did not receive a bonus. The amount of her wages in that respect was zero. (Id. at p. 1378, italics added.) Thus, Harveys interpretation of the case is simply incorrect.

Though Grant-Burton made a passing reference to a possible increase in pay, cases are not considered legal authority for propositions that are not squarely presented by the facts. (See, e.g., American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1039; see also People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66 [language used in any opinion must be understood in light of the facts and the issue then before the court].) Harvey seems to assume that the hypothetical discussion of a possible increase in pay alluded to in Grant-Burton would not involve a discussion of the amount of the possible increase. But there is nothing in the language of the case to justify such an assumption, and for good reason. In Grant-Burton there was no evidence of a possible pay increase in an undisclosed amount, and the court had no occasion to consider whether such a discussion would be protected by Labor Code section 232. The case does not support Harveys argument, and we see no reason in this case to expand Grant-Burton beyond its holding.

3. Sybase Was Entitled to Judgment on Harveys Claim Under Labor Code Section 232.5 Because There Was No Well Established Public Policy Prohibiting Her Termination at the Time of Her Discharge

In the court below, Harvey also advanced a claim for wrongful termination in violation of the public policy expressed in Labor Code section 232.5, which prohibits the discharge of an employee who discloses information about the employers working conditions.^[7] ( 232.5, subd. (c).) Although no case has yet held that a wrongful termination claim may be based on section 232.5, we will assume solely for the purposes of our discussion that the statute could support such a claim in appropriate circumstances. (See Grant-Burton, supra, 99 Cal.App.4th at p. 1372 [the statutes that most clearly support a claim for wrongful termination in violation of public policy are those that expressly prohibit termination of employment for specified reasons].) We will also assume, without deciding, that Harveys conduct satisfied the statutes requirements that Harvey disclose information about Sybases working conditions.^[8] Even so, we conclude that the trial court properly granted nonsuit on Harveys claim because the policy set forth in section 232.5 was not well established at the time of Harveys discharge.

a. Determining Whether a Statutory Policy Will Support a Claim for Wrongful Termination

The California Supreme Court has articulated a four-part test for determining whether a particular policy can support a common law wrongful discharge claim. The policy must be: (1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.  (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159, quoting Stevenson, supra, 16 Cal.4th at p. 894.) We focus on the third prong of this test. As a leading treatise explains, the rationale underlying this requirement is that [e]mployers must have adequate notice of the conduct that will subject them to tort liability. (Chin et al., Cal. Practice Guide: Employment Litigation, supra,  5:106, p. 5-17.)

b. Labor Code Section 232.5s Policy Was Not Well Established When Harvey Was Terminated

Sybase contends that the trial courts nonsuit ruling was correct because at the time of Harveys discharge, there was no well established public policy protecting Harveys right to complain about her proposed demotion or her supervisor. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (Gantt), overruled on another point in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669-670; see also Stevenson, supra, 16 Cal.4th at p. 894.) As Sybase notes, Labor Code section 232.5 became effective on January 1, 2003 (see Stats. 2002, ch. 934,  2), approximately six weeks before Harveys termination.

Harvey argues that once a policy is expressed in a statute, it is necessarily well established for purposes of a wrongful termination claim. In her view, when the employees right and the employers obligation stem directly from a statute, the concern that they be well established or firmly established is eliminatedthe legislature has well and firmly established the right and obligation. Her argument rests on a statement in Stevenson that the third prong of the test is that the policy must have been articulatedat the time of the discharge. (Stevenson, supra, 16 Cal.4th at p. 890, italics added.) For several reasons, we disagree with her contention.

First, only four pages after the quoted passage appears, the Supreme Court restated the test, and explained that for a policy to support a wrongful discharge claim, it must be: . . . (3) well established at the time of the discharge. (Stevenson, supra, 16 Cal.4th at p. 894.) And only two paragraphs before the passage in question, Stevenson had noted the requirement set out in Gantt that the policy be  well established at the time of the discharge. (Stevenson, at p. 889, citing Gantt, supra, 1 Cal.4th at p. 1090.) More important, the Stevenson court later explained that the policy in question in that casethe FEHAs prohibition against age discriminationhad been in effect since 1961, some 19 years before the FEHAs enactment in 1980. (Stevenson, at p. 895.) This observation would have been unnecessary had the enactment of the FEHA been all that was required to create a well established public policy.

Second, if we were to adopt Harveys argument, we would effectively merge the first and third prongs of the Supreme Courts four-part test. The first prong of the test requires that the policy be tethered to either a constitutional or statutory provision. (Gantt, supra, 1 Cal.4th at p. 1095.) If the mere passage of a statute meant that a public policy was well or firmly established such that it could support a tortious discharge claim, then there would be no need for the third prong of the test.

Finally, it is clear that Harveys interpretation of Stevenson is inconsistent with the reading that both the California Supreme Court and this court have given to it. Since the opinion in Stevenson was issued, our Supreme Court has reiterated that the public policy upon which a tortious discharge claim is based be well established at the time of the discharge (City of Moorpark v. Superior Court, supra, 18 Cal.4th at p. 1159), a formulation anticipated by this Division (Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 942).

Harvey then argues that the policy was well established prior to the enactment of Labor Code section 232.5. Citing a statement in Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, Harvey contends that California has long maintained a policy of protecting the right of employees to voice their dissatisfaction with working conditions. (Id. at p. 296.) But the court in Hentzel was dealing with hazardous working conditions caused by other employees smoking in the workplace. (Id. at p. 293.) Such environmental workplace hazards are not at issue here. In addition, in support of this policy, Hentzel relied on Labor Code section 923 (Hentzel, at p. 296), and Harvey has abandoned her claims under that section (see fn. 6, ante, p. 7). Hentzel also relied on other provisions of the Labor Code that had established a state policy of guaranteeing safe and healthful workplaces since 1917. (Hentzel, at pp. 297-298.) Hentzel is inapposite; it fails to support the contention that Harveys right to discuss her proposed demotion was firmly established before the enactment of section 232.5.

We need not fully flesh out the precise amount of time that is required before a statutory policy may be considered well established, in order to conclude that the six‑week period in this case is too short. Absent evidence that the policy predated the statutes effective date, a policy so new cannot serve as the basis for the potent remedy of a tort action for wrongful termination. (Cf. Gantt, supra, 1 Cal.4th at p. 1090.) Accordingly, we hold that the superior court properly granted nonsuit to Sybase on Harveys claim for wrongful termination based upon Labor Code section 232.5.

C. Attorney Fees^*

Harvey also appeals from the trial courts order granting her attorney fees, contending the trial court applied the wrong legal standard in exercising its discretion on fees. This argument is twofold. First, Harvey contends the trial court applied the wrong standard in reducing the lodestar amount of the fees sought. Second, Harvey asserts that the trial court erred as a matter of law by refusing to award a multiplier. We find no abuse of discretion by the trial court and accordingly affirm its order.

1. The Trial Courts Fee Award

After prevailing at trial, Harvey moved for an award of fees under the FEHAs fee-shifting provision, Government Code section 12965, subdivision (b). To arrive at a claimed merits fees lodestar, Harveys counsel multiplied the total number of attorney hours expended by the attorneys respective hourly billing rates. Counsel then applied discrete billing judgments (the difference between total hours and claimed hours), which reduced the gross lodestar figure from $1,006,456 to $954,002.50. According to Harvey, these reductions reflected all time devoted solely to the wrongful termination and punitive damages claims or to other noncompensable efforts. Harveys counsel then applied a 5 percent across-the-board reduction to this figure, which yielded a claimed merits fee lodestar of $906,302.38. Harvey requested that the trial court enhance the lodestar amount using a multiplier of 1.3, for a total fee merits request of $1,178,193.09.

Sybase challenged neither the rates that Harveys counsel requested as part of the lodestar, nor the reasonableness of the time that Harveys counsel devoted to any specific task. Instead, Sybase argued that because Harvey prevailed on only one of the five causes of action she alleged, the trial court should award only fees for time expended in pursuing Harveys one successful claimthe claim of discriminatory termination. Sybase contended that a review of the deposition and trial transcripts in the case showed that only 39 percent of Harveys claimed attorney fees were related to the discriminatory termination claim.

The trial court rejected Sybases proposed analysis of the fee claim. Instead, the trial court relied upon its own observation of the trial and reduced the proposed fee request to account for time spent on causes of action on which Harvey did not prevail. Although Harvey prevailed on only one of her five causes of action, the trial court recognized that some of the attorney time and effort related to more than one cause of action, and it ultimately concluded that [t]he proper result is therefore to reduce the claimed lodestar fees of $954,002.50 by 35 [percent] to $620,101.62.

2. Standard of Review

In FEHA actions, the court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs. (Gov. Code,  12965, subd. (b).) Because the statute vests discretion in the trial court to decide both whether to award fees and to determine the amount of those fees, we review the trial courts decision under the deferential abuse of discretion standard. (E.g., Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 422.) Furthermore, the trial courts order awarding fees is presumed correct. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) We may reverse only if we find a prejudicial abuse of the trial courts discretion. (Horsford v. Board of Trustees of CaliforniaStateUniversity (2005) 132 Cal.App.4th 359, 393 (Horsford); accord, Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 660.)

3. The Trial Court Applied the Correct Standard

Harveys first contention is that the trial court applied an improper standard in reducing the lodestar amount. The argument is based in part on the language that the trial court used in its order awarding attorney fees. The trial judge found that, based on what [he] saw at trial, approximately 20 [percent] of the time was spent on evidence that only pertained to the cause of action alleging wrongful failure to rehire, where the jury found for [Sybase]. For one thing, evidence of what happened after [Harvey] was fired had little relevance to her claim that she had been wrongly terminated. (Italics added.) Harvey contends that the trial courts use of the words pertained to and relevance to demonstrates that it applied the wrong standard. She argues that the correct standard is whether the causes of action on which she lost were related to the one claim on which she prevailed.

Initially, we observe that it is far from clear that there is any substantive difference between the language employed by the trial court and the standard proposed by Harvey. The verb pertain is synonymous with relate. (Burton, Legal Thesaurus (2d ed. 1992) p. 385, col. 1 [PERTAIN, . . . have interrelationship with, . . . have relation to, . . . relate, stand in relation to]; accord, Rogets II, The New Thesaurus (3d ed. 1995) p. 726, col. 1 [pertain . . . [] To be pertinent: appertain, apply, bear on . . . , concern, refer, relate]; boldface type in original.) The same is true of relevance. (SeeBurton, supra, at p. 440, col. 2 [RELEVANCE, . . . pertinence, reference, relation, relationship]; boldface type in original.)

More significantly, the case law grants the trial court broad discretion in determining the appropriate fee award. Both parties agree that the seminal case in this area is the United States Supreme Courts opinion in Hensley v. Eckerhart (1983) 461 U.S. 424. Hensley explained the proper inquiry for a trial court when presented with a fee request in a case in which a prevailing plaintiff has succeeded on only some of his or her claims for relief. (Id. at pp. 434-437.) In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? (Id. at p. 434.) The Hensley court acknowledged that in many cases the plaintiffs claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsels time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the [trial] court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. (Id. at p. 435.) Nevertheless, if a plaintiff has achieved only partial success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith. (Id. at p. 436.) Hensley thus demands a two-part inquiry: (1) whether plaintiff failed to prevail on claims unrelated to those on which she succeeded, and (2) whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for a fee award. (Thomas v. City of Tacoma (9th Cir. 2005) 410 F.3d 644, 649; see also Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1316-1317.)

In keeping with Hensley, California courts have recognized that fees need not be apportioned between successful and unsuccessful claims when the prevailing plaintiffs claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorneys time into compensable and noncompensable units. [Citations.] (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) The trial court is in the best position to understand the relationship between the plaintiffs claims and to determine whether time spent on a related claim contributed to the plaintiffs objectives at trial. (Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at p. 423; see also Thomas v. City of Tacoma, supra, 410 F.3d at p. 649 [question of whether successful and unsuccessful claims are related is one for trial court to decide].)

[I]f the plaintiffs successful and unsuccessful claims involve a common core of facts or related legal theories, the court should determine the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.  (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019, quoting Hensley v. Eckerhart, supra, 461 U.S. at p. 435.) Where a plaintiffs claims cannot be easily segregated into successful and unsuccessful ones, the trial court may therefore take a plaintiffs lack of success into account in adjusting the lodestar amount. (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 975.) The bulk of discretion retained by the [trial] court lies in the second, significance of relief, inquiry. [Citation.] (Thomas v. City of Tacoma, supra, 410 F.3d at p. 649.)

In this case, we cannot say that the trial court abused its discretion. The trial court was in the best position to determine the relationship between Harveys various claims and whether pursuit of those claims contributed to Harveys objectives at trial. (Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at p. 423.) Where several claims are presented and the plaintiff prevails on less than all, the court must decide how related the claims were to one another. [Citation.] This is a classic question of degree. Where the plaintiff achieves only partial or limited success, the court may at its discretion make a percentage reduction. (Fine v. Ryan Intern. Airlines (7th Cir. 2002) 305 F.3d 746, 757 [upholding district courts percentage reduction of fee award where plaintiff lost on claims for sexual harassment and sex discrimination but prevailed on retaliation claim; reduction not abuse of discretion even though plaintiff received all the monetary relief she could have gotten].) Thus, even if one were to accept Harveys argument that all of the legal theories that she pursued at trial constituted a single claim, the trial court nevertheless retained discretion to reduce the fee award. (Ibid. [percentage fee reduction may have reflected district courts view that counsel wasted time pursuing less promising theories of liability]; accord, Thomas v. City of Tacoma, supra, 410 F.3d at pp. 649-650.)

Harvey also complains that the trial court reduced the amount of her fees using a lodestar amount that her counsel had already adjusted to reflect discrete billing judgment reductions. She notes that the unadjusted lodestar amount was $1,006,456, and that her counsel had proposed discrete billing reductions of $52,453.50, plus an across-the-board reduction of 5 percent, or $47,700.12. Harveys proposed net adjusted lodestar was therefore $906,302.38. Harvey complains that the trial court applied its 35 percent reduction to the adjusted lodestar amount ($954,002.50) rather than the unadjusted lodestar amount ($1,006,456). Harvey appears to proceed from the assumption that the trial courts award must be based on the initial lodestar calculation, which should include any and all hours expended by counsel in the litigation. This premise is incorrect.

In Hensley, the United States Supreme Court explained that [t]he [trial] court . . . should exclude from this initial fee calculation hours that were not reasonably expended. [Citation.] (Hensley v. Eckerhart, supra, 461 U.S. at p. 434.) The high court admonished that [c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, billing judgment is an important component in fee setting. It is no less important here. Hours that are not properly billed to ones client also are not properly billed to ones adversary pursuant to statutory authority. [Citation]. (Ibid.; see also Harman, supra,136 Cal.App.4th at p. 1310 [discussing Hensley].) Thus, rather than presenting a fee request that represents the entire initial lodestar amount, counsel for a prevailing party are expected to reduce that amount through the exercise of this type of billing judgment. Such judgment will almost inevitably result in a fee request that is lower than the total, unadjusted lodestar figure. The trial court therefore did not abuse its discretion in applying its 35 percent reduction to the adjusted lodestar rather than the initial, unadjusted amount.^[9]

4. The Trial Court Was Not Required to Apply a Multiplier to Increase Harveys Fee Award

Harvey also contends that the trial court erred as a matter of law in denying a contingent risk multiplier. Relying heavily on the Fifth Districts opinion in Horsford, Harvey contends that [i]n a contingent fee case, use of a multiplier is the rule, not the exception. She points to the statement in Horsford that the contingent and deferred nature of the fee award . . . requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. [Citation.] (Horsford, supra, 132 Cal.App.4th at pp. 394-395, italics added.) Harveys reliance on Horsford is misplaced.

First, Harveys reading of Horsford is at odds with the California Supreme Courts opinion in Ketchum v. Moses (2001) 24 Cal.4th 1122. There, our high court explained that the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case. (Id. at p. 1138, second italics added.) Ketchum confirms that the decision to include a fee enhancement based on contingent risk is one that is committed to the trial courts discretion. (Ibid.) In addition, the Fifth District recently clarified that Horsford may not be read to imply that a trial court is somehow bound to include a multiplier when awarding attorney fees. In Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, the Fifth District reiterated the established principle that a trial courts decision whether to apply a multiplier is a discretionary one, and clarified that Horsford did not hold otherwise. (Id. at p. 1241.) Thus, contrary to Harveys apparent belief, Horsford did not mandate the use of a multiplier. (Nichols, at p. 1241.)

Harvey next contends that the trial court manifestly did not consider the legally mandated enhancement factors. To the extent that this argument appears to assume that a fee enhancement is mandatory, we have already demonstrated that it is incorrect. Moreover, Harvey fails to demonstrate that the trial court did not consider the proper factors. These factors were extensively briefed by the parties in their moving papers, and we have no reason to doubt that the trial court gave them appropriate consideration.^[10] (See Ketchum v. Moses, supra, 24 Cal.4th at p. 1140 [where record reflected that superior court reviewed extensive documentation concerning the amount of fees, court had no reason to doubt that the superior court conducted an independent assessment of the evidence presented].) And on appeal from an order awarding fees, we must indulge all intendments and presumptions in support of the judgment, even on matters on which the record is silent. (Ibid.; see also Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349 [in fee appeal, we must infer all findings on these points in favor of the prevailing parties].)

Finally, we reject Harveys contention that the highly contingent nature of this case necessarily justified application of a contingent risk multiplier. As Division One of this court has explained, the classic case justifying an upward adjustment of the lodestar based on contingency is public interest litigation that result[s] in no fund of money from which attorney fees might be paid, nor . . . in any monetary recovery by the plaintiffs. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1174; id. at pp. 1173-1174.) In contrast, in this case, as in Weeks, because of the availability of attorney fees under the FEHA, the attorneys had reason to assume that the amount of [Harveys] recovery would not limit the amount of fees they ultimately received. (Weeks, at p. 1174.) The contingent risk in this case was therefore simply the risk that Harvey would not prevail. Such a risk is inherent in any contingency fee case and is managed by the decision of the attorney to take the case and the steps taken in pursuing it. (Id. at p. 1175.) As a consequence, the risk that Harveys attorneys would not be compensated for their work on the case was no greater than the risk inherent in any contingency fee matter, and because of the availability of statutory fees the possibility of receiving full compensation for litigating the case was greater than that inherent in most contingency fee actions. (Id. at p. 1174.)

5. Limited Remand Is Required

Although we conclude that the trial court did not abuse its discretion in awarding attorney fees, we nevertheless remand the matter to the trial court with directions that it adjust the award to reflect our disposition of the issue of punitive damages. The trial court deducted 5 percent from the fee award for efforts that related only to Harveys punitive damages claim. Because we have concluded that the trial court improperly set aside the jurys punitive damages verdict, the trial court must now restore an appropriate portion of the amount it deducted from the fee award as a result of its JNOV on punitive damages.

DISPOSITION

We reverse the superior courts grant of JNOV to Sybase on the issue of punitive damages and direct the superior court to reinstate the jurys punitive damages verdict. We remand the award of attorney fees with directions that the superior court restore to the fee award an appropriate amount for time spent on the punitive damages issue. In all other aspects, the judgment is affirmed. Each party shall bear its own costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

STEVENS, J.^*

(A109300)

(A111450)

Superior Court of Alameda County, No. RG03107881, Stephen Allen Dombrink, Judge

Reed Smith LLP, Paul D. Fogel and Raymond A Cardozo; Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez and Troy A. Valdez for Defendant and Appellant

Adams | Nye | Sinunu | Bruni | Becht, Bruce Nye, David J. Becht, Barbara R. Adams and John Lee; Rosen, Bein & Asaro and Andrea G. Asaro for Plaintiff and Appellant

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^* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, parts I.B., II.A. and II.C. of this opinion are not certified for publication.

^* See footnote, ante, page 1.

^[1] Sybase also relies on a number of federal cases arising under title VII of the Civil Rights Act of 1964. As Harvey correctly points out, the standards set forth in those cases have been largely overtaken by the United States Supreme Courts decision in Kolstad v. American Dental Assn. (1999) 527 U.S. 526, 533-539, which held that punitive damages are available in title VII cases without the need to show egregious or outrageous discrimination independent of the employers state of mind.

^[2] Having determined that the evidence supports a finding of malice in the sense of conduct which is intended by the defendant to cause injury to the plaintiff (Civ. Code,  3294, subd. (c)(1)), we need not address whether it would also support a finding of fraud or oppression. We likewise need not address whether the evidence meets the statutes alternative definition of malicedespicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. ( 3294, subd. (c)(1).)

^[3] In the court below, the parties devoted considerable effort to briefing whether Harveys wrongful termination claims are preempted by federal labor law. (See Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378, fn. 2 (Grant-Burton) [noting that federal law may preempt such wrongful termination claims in certain circumstances].) The trial court did not address this issue, and the parties scarcely mention it in their briefs in this court. We note, however, that the question of preemption is jurisdictional and cannot be waived. (Ibid., citing Longshoremen v. Davis (1986) 476 U.S. 380, 387-393.) Because we hold that neither of Harveys claims of wrongful termination in violation of public policy meets the substantive requirements of California law, we need not determine whether Harveys claims arguably fall within the protections of federal law.

^[4] Labor Code section 232.5 provides in pertinent part: No employer may do any of the following: [] . . . [] (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employers working conditions.

^[5] Labor Code section 232 provides in pertinent part: No employer may do any of the following: [] . . . [] (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.

^[6] Sybase argues that Harvey could not have disclosed the amount of her wages to Van der Vorst in any event, because, as Sybases CFO, Van der Vorst either knew how much Harvey earned or had access to her salary information. Sybase contends that to constitute a disclosure within the meaning of Labor Code section 232, the employee must reveal his or her wages to someone who was unaware of or has no access to the amount of the wages disclosed. We need not address this argument because it is undisputed that Harvey never discussed the amount of her wages with Van der Vorst. We likewise decline to address Sybases contention that the disclosures protected by section 232 do not include what Sybase calls compensation discussions (. . . with managers or corporate officers).

^[7] Like Harveys claim under Labor Code section 232, her claim that she disclosed working conditions is based on her conversation with Van der Vorst. As Harveys counsel explained at the hearing on Sybases motion for nonsuit, Harvey had talked to . . . Van der Vorst about her demotion which resulted in a change of her duties, a change of her pay, a change of her working conditions, the terms of her employment. She talked to . . . Van der Vorst about the difficulty of working with . . . White-Ivy and the environment in HR. In this court, Harvey states that the factual support for this claim was evidence that she had told . . . Van der Vorst about White-Ivys erratic, dysfunctional and demoralizing management style and about poor morale in the HR department.

^[8] Sybase disputes both that Harveys internal complaint to Van der Vorst disclose[d] information within the meaning of Labor Code section 232.5 and that her complaint concerned working conditions. These terms might well be susceptible to more than one interpretation, but because we resolve Harveys appeal on this point on a different ground, we need not define the precise extent of their reach.

^* See footnote, ante, page 1.

^[9] We note also that the trial court disregarded Harveys counsels 5 percent across-the-board reduction in making its fee award. The trial court based its award on the adjusted lodestar of $954,002.50, rather than on Harveys net adjusted lodestar of $906,302.38.

^[10] Harvey points to a comment in the trial courts order awarding fees that plaintiff argued . . . that a decent award is necessary to teach the defendant a lesson not to discriminate. Harvey contends that this demonstrates that the trial court confused the standard for awarding a multiplier with the standard for awarding punitive damages. We are unwilling to draw this inference from this comment, which Harvey admits is ambiguous. In and of itself, the comment is an accurate statement of the law. (See Ketchum v. Moses, supra, 24 Cal.4th at p. 1139 [Nor should a fee enhancement be imposed for the purpose of punishing the losing party]; id. at p. 1142 [an enhancement for contingent risk or quality of representation may not properly be imposed merely for the purpose of punishing the losing party].)

^* Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.