January 2010 • Vol. 30 No. 1 | An E-Publication of the Los Angeles County Bar Association

Trustees Support Petition for Review: Attorney Fees in Civil Rights, Public Interest Cases Should Include Recovery for Time Spent on Fee Issue Itself

The Board of Trustees voted unanimously to ratify a consent item granting approval by the LACBA Executive Committee to file an amicus brief in support of petition for review in Maldonado v. Club Fresh, as recommended by LACBA’s Amicus Briefs Committee.*

Excerpts from a memo by Richard A. Rothschild, committee chair, summarize the issues involved:

LACBA has been asked to reaffirm a position it took nearly 30 years ago—that attorney fees in civil rights and public interest cases should include compensation for time spent solely on the fee issue itself.

In Maldonado v. Club Fresh, the court of appeal in an unpublished opinion affirmed in its entirety a fee award under the Fair Employment and Housing Act. Then the court denied the prevailing plaintiff’s request for fees on appeal because the “fees from this appeal do not address Maldonado’s [the plaintiff’s] claims and will not penalize Maldonado, the rationale for allowing such fees.” Slip Opn. at 18. The plaintiff unsuccessfully petitioned for rehearing on this point and has now filed a petition for review.

There are policy arguments against awarding fees for time spent on the fee issue itself, some of which are summarized in the dissenting opinion in Serrano v. Unruh, 32 Cal. 3d 621, 644-48 (1982) (Richardson, J., dissenting), but the case law establishing the right to such fees has been clear since Serrano v. Unruh was decided, at least under the private attorney general statute, Code of Civil Procedure Section 1021.5. (LACBA supported the Serrano plaintiffs in an amicus letter in support of their petition for hearing.)

The Amicus Briefs Committee recommended support of the petition for review after determining that this is one of those unpublished opinions that is likely to provide unofficial guidance for other courts and lead to bad results throughout the state.

* The Executive Committee had approved the recommendation in lieu of the Board of Trustees per LACBA’s bylaws due to short timing issues. 

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