Fotheringham v. Avery Dennison























Filed 2/13/13
Fotheringham v. Avery Dennison CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




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SILVANA FOTHERINGHAM, Plaintiff and Appellant, v. AVERY DENNISON CORPORATION, Defendant and Respondent.

B238282 (Los Angeles County Super. Ct. No. BC219801)

APPEAL from a judgment of the Superior
Court of Los
Angeles County. Michael C. Solner,
Judge. Affirmed.

John Elson for Plaintiff and
Appellant.

Miller Law Group, Karen A. Rooney
and Joseph P. Mascovich for Defendant and Respondent.



_______________________



Silvana Fotheringham sued
her former employer, Avery Dennison Corporation. After lengthy litigation involving two trials
and multiple appeals, the trial court entered a judgment including a
determination of costs and attorney fees pertaining to an earlier phase of the
litigation. Fotheringham appeals this
award. We affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

The litigation between Fotheringham and Avery Dennison
has consumed more than a decade. In what
the parties label Phase 1 of the litigation, Fotheringham sued Avery Dennison
for wrongful termination based upon
her disability in violation of the Fair Housing and Employment Act (FEHA),
Government Code section 12940; wrongful termination in violation of fundamental
public policy; discriminatory failure to make reasonable accommodations for a
disability, under FEHA; hostile work environment based on disability, under
FEHA; intentional infliction of emotional distress; breach of contract not to
terminate without good cause; and breach of the implied covenant of good faith
and fair dealing. Avery Dennison moved
to compel arbitration, and the trial court granted the motion. The parties conducted arbitration in 2002. On appeal, we reversed the order compelling
arbitration and remanded the matter to the trial court. (Fotheringham
v. Avery Dennison Corp. (June 7, 2004, B162762) [nonpub. opn.].)

In proceedings after remand, the trial court summarily
adjudicated most of Fotheringham’s causes of action as well as her request for href="http://www.mcmillanlaw.com/">punitive damages. She proceeded to trial on her remaining one
cause of action, the claim that Avery Dennison failed to make reasonable
accommodations for her disability. (>Fotheringham v. Avery Dennison, Inc.
(Mar. 19, 2008, B187949) [nonpub. opn.], at p. 4.) Fotheringham’s appeal from the resulting
judgment is referred to by the parties as Phase 2. In Phase 2, this court reversed the summary
adjudication of two causes of action and the punitive damages demand, vacated
the attorney fee award, and remanded the matter for further proceedings. (Fotheringham
v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 35.)


Phase 3 of the litigation was the second trial, in
which the jury found that Fotheringham’s request for accommodations was a
motivating reason for Avery Dennison’s decision to terminate her employment and
that the discharge caused her harm. (>Fotheringham v. Avery Dennison, Inc.
(Mar. 2, 2011, B217757) [nonpub. opn.], at p. 4.) Fotheringham also presented evidence to
support her claim for punitive damages on her FEHA claims, but the jury did not
award punitive damages. (>Ibid.)
The court concluded that the damages awarded by the jury in Phase 3 were
duplicative of the damages that had been previously awarded, and it awarded
attorney fees as to the first two phases of the litigation but declined to
award attorney fees for Phase 3. (>Id. at pp. 4, 16-20.)

In Phase 4 of the litigation, the appeal from that
judgment, we ruled that the trial court had erred in failing to include the
damages awarded by the jury in Phase 3 in the judgment and in its determination
of attorney fees and costs. (>Fotheringham v. Avery Dennison, Inc.
(Mar. 2, 2011, B217757) [nonpub. opn.], at p. 2.) We remanded the matter with instructions to
the court to determine the appropriate award of attorney fees and expert
witness costs for Fotheringham’s FEHA claim in Phase 3. (Id.
at p. 23.)

The parties litigated the
fees and costs issues before a judge who had not presided over the trials. The trial court awarded Fotheringham $165,781
in attorney fees and $7,047.05 in costs.
Fotheringham moved for clarification of the court’s attorney fees order
and a new trial on that issue. The court
clarified its order at a hearing and in writing. Fotheringham appeals the attorney fees and
costs awards.

DISCUSSION

I. Attorney
Fees Award

In conjunction with Fotheringham’s motion for attorney
fees, her counsel John Elson declared that during Phase 3 of the litigation he
had worked 627.6 hours on the matter. Of
those 627.6 hours, Elson estimated that “over 99% of the time was related to
the FEHA claim upon which the plaintiff had prevailed in the 2005 trial, and
her request for punitive damages that was being tried in 2009.” Elson asserted that the non-FEHA retaliation
claim “required less than an hour of the nearly three week trial.” Elson also declared that during the
subsequent Phase 4 of the litigation, consisting of legal work after the
commencement of the prior appeal, he had spent 368.3 hours on the case, of
which “at least 75% of the time for the appellate work was related to the FEHA
claim.”

Based on these hours, Fotheringham requested a
lodestar figure of $597,540, representing 995.9 hours of attorney time at a
rate of $600href="#_ftn1" name="_ftnref1"
title="">[1]> per hour. Fotheringham
claimed that the fee award for Phase 3 of the litigation should be multiplied
by 4, and that the fee award for Phase 4 of the litigation should be multiplied
by 3. Accordingly, she sought a total
fee award of $2,169,180, of which $1,506,240 was attributable to Phase 3 and
$662,940 to Phase 4.

In opposition to the motion for attorney fees, Avery
Dennison challenged Fotheringham’s contention that only one percent of the
Phase 3 trial was devoted to the trial of her common href="http://www.fearnotlaw.com/">law retaliation claim. Avery Dennison’s counsel declared that Avery
Dennison, “disagrees with plaintiff’s claim that 99% of the Phase 3 trial was
devoted to her punitive damages claim, especially when one considers that
plaintiff’s common law retaliation claim based on her retention of an attorney
was tried for the first time in Phase 3.
There were also witnesses who were called specifically to testify about
plaintiff’s retaliation claim such as her former attorney and defendant’s in
house counsel. A much fairer estimate
would be 50%.” Avery Dennison also
contended that Fotheringham was seeking fees not attributable to her FEHA
claim; her limited success in the litigation warranted a smaller attorney fees
award; the fees were inadequately documented; unintelligible descriptions of
Elson’s services precluded meaningful review of the claimed hours; Fotheringham
had run up unnecessary fees; clerical tasks and travel fees were included in
the services provided; Elson’s claimed $600 rate was unreasonable; and
Fotheringham had presented no reasonable basis for employing a multiplier. Avery Dennison argued a more reasonable award
was $150,710.

At the hearing on the fee and costs issues, the trial
court expressed skepticism over Elson’s claimed $600 hourly rate: “I know an attorney[’s] hourly rates have
gone up, but I don’t think they’ve gone up this much.” The court found both an increase in hourly
rate of $250 over a span of two years and Fotheringham’s proposed multipliers
unreasonable. The court announced a
tentative award of $139,384. After Elson
pointed out that this tentative award was lower than the award proposed by
Avery Dennison, the court reconsidered its tentative and arrived at an award of
$165,781. The court explained, “And I’ve
arrived at that by taking the defense figure and multiplying that with an
additional 10 percent on there.”

At the hearing on Fotheringham’s motion for
clarification of the court’s attorney fees order and a new trial on attorney
fees, the court advised the parties, “Just so everybody knows, on the
attorney’s fees issue, I know there is some passion on the part of plaintiff’s
counsel who spent—claims to have spent a significant amount of time on this
case. I evaluated it the last go around
and came up with a figure that I thought was reasonable in terms of the amount
of time that was reasonable to achieve the result that was achieved and the
hourly rate and I multiplied them which is, essentially, a [lode]star approach
to it. I did not use a multiplier
because I did not think that that was warranted. So, in analyzing the amount of time that I
thought was reasonable, I came up to you [sic]
a figure. I took into account the
amounts claimed by the plaintiff, the amount acknowledged by the—I guess it’s
acknowledged by the defense. And, while
I didn’t go along with either one, I awarded a figure that I thought was
appropriate based on reasonableness of hours spent and the fee. The fee, the hourly rate had, according to
the plaintiff, had jumped from $350 an hour, which was true in 2006. And up through 2009 it had gone up to $600,
which is not quite double but it represents a $250-an-hour increase in the
period of less than two years or about two years. And I didn’t think that was appropriate. [Three hundred and fifty dollars] seemed, to
me, to be the appropriate hourly rate.
And the number of hours that I took into account in looking through the
billing I thought was also appropriate.
So I thought I had made that clear last time. But I guess I didn’t because you’re here on a
motion for clarification of that.”

The court clarified that its attorney fees award was
based on 473.66 hours of compensable services at a $350 hourly rate. It considered that hourly rate reasonable
based on its experience with attorney fees and fee requests. Elson asked the court to state how it arrived
at 473.66 hours, and the court responded, “It’s reasonably necessary. I was a partner in a law firm and I was a
solo practitioner for 10 years before I was appointed. I have experience in billing. And it’s oftentimes easy to—I’ll use the word
‘pad.’ I’m not accusing you
of . . . doing that.
You have to look at what’s reasonable, what’s reasonable to the client,
what’s reasonable to the attorney. And
[$]350 an hour and the 473 hours plus that I came up with, I think is totally
reasonable for the work done on—for the value gained in this case.”

Elson asked if the court’s minute order would include
“anything . . . [on] how you got to the 473 [hours] other
than just cutting the 995 in half, essentially?” the court responded, “It’s a figure. You look through it, you get a sense of the
work that should have been done, what it should have taken to do that work,
unnecessary work being done, and you come to a figure. And it’s not real magic. It’s just reason. Trying to apply reason. So that’s what it is. And I’m not going to go through 200 line
items and reduce this one by one-tenth of an hour and this one by two-tenths of
an hour. That’s what you come to.”

We find no abuse of discretion here. The trial court set forth on the record that
it had evaluated Fotheringham’s showing of the hours worked on the case, the
hours attributable to the FEHA claim, and the work that was performed. It concluded that Elson’s claimed hourly rate
was excessive and that the hours documented were well above what was reasonable
for the demands of the case. The court
concluded that the rate previously used and set forth in the retainer agreement
was a reasonable hourly rate, found that slightly less than half the number of
hours claimed by Elson were appropriate here, and concluded that no multiplier
was warranted. The court’s comments
demonstrate that it considered the appropriate factors in arriving at the
attorney fees award and its conclusions are supported by the record.

Fotheringham, however,
argues that the court abused its discretion with this award for seven
reasons. We address each contention in
turn.

A. Evidentiary Objection

Fotheringham objected to the
paragraph of Avery Dennison’s counsel’s declaration in which counsel described
the Phase 3 trial and estimated that approximately 50 percent of the trial was
dedicated to plaintiff’s FEHA claim, and she argues on appeal that the implied
overruling of her objection was error.
The entirety of Fotheringham’s argument on this point is her conclusory
statement that “There was nothing in respondent’s counsel’s declaration from which
the court could conclude that the suggested allocation of 50% to the
retaliation claim was an appropriate figure.”
However, the paragraph to which she objected laid out the factual basis
for counsel’s estimate: Fotheringham’s
entire common law retaliation claim was tried in Phase 3 for the first time,
and included multiple witnesses, including Fotheringham’s former attorney and
Avery Dennison’s in-house counsel, offering testimony specific to the
retaliation claim. Avery Dennison’s
counsel had represented Avery Dennison during the prior trial and therefore
drew on personal knowledge to make her estimate of the proper allocation of
time between the FEHA and non-FEHA claims.
Fotheringham has not demonstrated any error in the failure to sustain
this objection.

B. FEHA Policy

Fotheringham claims that the
court violated the FEHA policy for full recovery with its award, specifically
the policy that “[o]nly in the unusual case in which there are ‘special
circumstances [which] render such an award’—that is, an award for the full
lodestar ‘for all hours reasonably spent’—‘unjust’ does California FEHA law
permit a lodestar reduction for results obtained.” (Beaty
v. BET Holdings (9th Cir. 2000) 222 F.3d 607, 612.) Here, however, the court did not calculate
the lodestar and then reduce it based on results obtained. Instead, the court calculated a lower
lodestar amount than Fotheringham sought based on its evaluation of the hours
reasonably spent on the matter and a reasonable hourly rate. (PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [lodestar is “the number of
hours reasonably expended multiplied by the reasonable hourly rate”].) The court awarded full payment of the
lodestar amount, and Fotheringham has therefore failed to show a violation of
the FEHA policy of full recovery of the lodestar absent special circumstances.

C. Avery Dennison’s Opposition

Fotheringham argues that
because Avery Dennison failed to challenge particular tasks or the time
required to perform them as “unnecessary or unreasonable, the court had little,
if any discretion to reduce the lodestar being sought as it was not free to
disregard the uncontradicted evidence supporting the motion.” We do not find Avery Dennison’s opposition to
be inadequate because, inter alia, it challenged Fotheringham’s contention that
99 percent of Phase 3 work was attributable to FEHA claims rather than
disputing individual line item entries.
Avery Dennison appropriately disputed Fotheringham’s contention that she
was entitled to recover fees for the entirety of her counsel’s Phase 3 work and
her assessment that nearly every moment of work for the Phase 3 trial concerned
the FEHA request for punitive damages rather than the cause of action that was
fully tried in the Phase 3 trial. Even
if Avery Dennison’s opposition were insufficient, moreover, Fotheringham still
bore the burden of establishing her entitlement to attorney fees, and the trial
court was nonetheless required to evaluate her evidentiary showing to determine
“reasonable attorney’s fees” (§ 12965, subd. (b)) under the circumstances
of this case. Purported deficiencies in
Avery Dennison’s evidentiary showing do not establish any abuse of discretion
in the attorney fee award.

D. Allocation of Fees

Fotheringham’s argument
entitled, “There was no basis for an allocation between the FEHA and non-FEHA
claims,” consists entirely of the presentation of a series of authorities, with
no application of the legal principles she cites to the facts of this case and
no argument as to how these authorities demonstrate that the trial court erred. An appellant must offer argument as to how
the court erred rather than citing general principles of law without applying
them to the circumstances before the court.
(Landry v. Berryessa Union School
Dist. (1995) 39 Cal.App.4th 691, 699 (Landry).) Fotheringham has failed to present meaningful
legal analysis and has therefore failed to demonstrate error here. (Department
of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.
(2002) 100 Cal.App.4th 1066, 1078 (Beverage
Control) [“Mere suggestions of error without supporting argument or
authority name="citeas((Cite_as:_100_Cal.App.4th_1066,_*">other than general abstract
principles do not properly present grounds for appellate review”].)

E. Consideration of Damages

Fotheringham contends that
the court erred in considering the damages awarded here. Her argument consists of a quotation from the
trial court that the hourly rate and number of hours it selected were “totally
reasonable for the work done on—for the value gained in this case”; the
holdings of three decisions; and a description of the amount of compensatory
damages she was awarded and the factual bases of her claims. At no point does Fotheringham present any
legal argument applying her authorities to the facts of this case or
demonstrating any error by the trial court.
She has therefore failed to establish error here. (Landry,
supra, 39 Cal.App.4th at
pp. 699-700; Beverage Control, >supra, 100 Cal.App.4th at p. 1078.)

F. Hourly Rate

Next, Fotheringham complains that the hourly rate
selected by the court was an abuse of discretion because $600 was an
appropriate rate for the years 2008 through 2011 in light of counsel’s legal
experience and prevailing market rates.
She supports this assertion with a citation to one case, >Nichols v. Taft (2007) 155 Cal.App.4th
1233, in which the court described three Los Angeles attorneys’ stated hourly
rates in 2005 ($550 and $475 per hour for two partners, and $415 per hour for
an associate). Without analysis,
Fotheringham concludes, “Accordingly, an hourly rate of $600 per hour for work
done by plaintiff’s counsel in 2008-2011 is fully consistent with the rates
approved by courts in other cases, such as Nichols.” The fact that in one case a court approved
particular rates for three local attorneys does not demonstrate that the trial
court abused its discretion in setting a reasonable hourly rate here.

Here, the trial court drew
upon its experience as a judge to assess what hourly rate was reasonable within
the legal community and for the work counsel performed. It observed that its usual experience was to
see rates between “about $225 to a high of maybe [$]400.” It further found that $350 per hour was
reasonable for the work done by Elson.
Fotheringham did not prove that comparable counsel handling similar
cases typically earned $600 per hour, and she did not show that such a large
fee increase over a span of two years was reasonable. She has not shown any abuse of discretion
here.

G. Multiplier

Finally, Fotheringham asserts that the trial court was
required to use a multiplier because counsel worked on a contingency basis,
relying on Horsford v. Board of Trustees
(2005) 132 Cal.App.4th 359, 394-395 (Horsford)
[“It has long been recognized, however, that the contingent and deferred nature
of the fee award in a civil rights or other case with statutory attorney fees
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”].
Fotheringham contends that a multiplier should have been used here
because Phases 3 and 4 of the case required an “extraordinary amount of time”;
counsel had already spent ten years and nearly 1600 hours working on the case
without payment before Phases 3 and 4 occurred; the legal and factual issues
here were difficult and required “a Herculean effort” to prepare and present to
the jury; and Avery Dennison aggressively litigated the case, resulting in
unnecessary battles and unreasonable consumption of time.

We are familiar with this
case over its years of litigation and appeals and are not persuaded that the
trial court abused its discretion by failing to apply a multiplier. Phases 3 and 4 did not require an
extraordinary amount of time: while
Elson claimed to have spent 995 hours on the litigation this portion of the
matter records, the trial court reasonably determined that 473.66 hours were
required to perform the legal work necessary at the relevant stages of the
litigation, and this determination is supported by the record. Based on a 40-billed-hour per week schedule,
that means that just less than 12 weeks were required over the three years of
Phases 3 and 4 of the litigation. This
does not demonstrate that this case was one in which the “demands of the . . . case
substantially precluded other work during that extended period” of time. (Horsford,
supra, 132 Cal.App.4th at
p. 399.) The history of the case
prior to Phases 3 and 4 is not relevant to the use of a multiplier here, as
attorney fees for the prior portion of the case have already been litigated and
appealed. Although she characterizes the
legal and factual issues presented by the case as difficult, we identify no
issues of fact or law here as complicated or unusual. As for Fotheringham’s assignment of blame to
Avery Dennison for the protracted nature of the litigation, our review of the
record persuades us that over the course of this matter, all parties employed
aggressive litigation techniques resulting in what appear to have been
unnecessary legal proceedings.

II. Printing
Costs

Fotheringham filed a memorandum of costs on appeal in
which she sought a total of $12,047.16.
Of that amount, $5,848.81 was attributed to the printing of briefs. The invoices submitted by Fotheringham to
support the her stated expenditure for printing and copying of briefs included
charges for such items as “Hour(s) Paralegal Time,” “Preparation of” briefs,
motions, applications, and petitions, and “Page(s) Table of
Contents/Cites.” Avery Dennison
contended that a more reasonable charge for printing was $475.70.

Avery Dennison moved to strike or tax a portion of the
costs pertaining to the printing of the briefs on the basis that the amount
requested was unreasonable in light of the fact that only approximately 4800
pages were involved and document preparation charges and paralegal time were
included in the requested amount.
Fotheringham accused Avery Dennison of displaying “contentiousness for
the sake of contentiousness alone,” asserted that Avery Dennison’s law firm certainly
must charge clients more than $.10 per page for copying, and reiterated that it
had been charged the amount it sought to recover. Fotheringham did not respond to Avery
Dennison’s observation that the invoices supporting the printing and copying
costs included charges for services other than printing and copying.

The court granted $875.70 in costs for printing and
reproducing briefs rather than the $5,848.81 Fotheringham had requested. The court explained, “[T]he statute that we
talk about doesn’t say that you can recover the costs charged by a professional
company to print and reproduce the briefs.
And paralegal fees which they’ve attacked.”

Fotheringham contends on appeal that the court erred
in reducing the printing costs award from the requested $5848.81 to
$875.70. She begins with California
Rules of Court, rule 8.278(d)(1)(E), which specifies as recoverable the cost to
“print and reproduce any brief.”
Fotheringham then cites the Supreme Court’s interpretation of the rule’s
predecessor and the guiding principle:
“‘The fact that the brief could have been printed by some other printer,
or produced by some other process, at a lesser cost is not controlling. The only requirements in this respect are
that the cost be actually incurred and that it be reasonable.’ [Citation.]”
(Johnson v. Workers’ Comp. Appeals
Bd. (1984) 37 Cal.3d 235, 243 (Johnson).)

Fotheringham claims that the court did not adequately
attend to the portion of the rule that speaks of “printing” rather than copying
and asserts that because she “inarguably incurred the charges” she was entitled
to recover the full amount of the charges set forth in those invoices. Her briefing on appeal focuses exclusively on
the fact that these charges were actually incurred, but disregards the
requirements that the printing cost must be (1) for printing and copying and
(2) reasonable. (Cal. Rules of Court,
rule 8.278(d)(1)(E); Johnson, >supra, 37 Cal.3d at p. 243.)

The record abundantly demonstrates that the court did
not abuse its discretion in awarding a substantially lower figure for printing
and reproducing the briefs than was requested by Fotheringham. Even the most cursory examination of the
invoices she submitted for printing and reproduction charges demonstrates that
they included paralegal time and work preparing the documents, not merely the
costs to print and copy the briefs. At
no time did Fotheringham separate the recoverable costs for printing and
copying from the other, nonrecoverable charges for services provided by the document
production service she elected to use.
Accordingly her evidentiary showing was useful only to demonstrate the
amount of printing and copying that was performed: approximately 4800 pages.

While under California Rules
of Court, rule 8.278(d)(1)(E) Fotheringham was entitled to the cost of printing
and reproducing the briefs, the trial court was well within its discretion in
concluding that $5,848.81 was not a reasonable cost to print and reproduce
approximately 4800 pages of documents; that the request was excessive; and that
it included charges for nonrecoverable services. In the absence of any evidence from
Fotheringham of the costs actually attributable to printing and reproducing the
briefs, the court relied upon Avery Dennison’s showing that two copying
services charged $.10 per page to determine that was a reasonable price per
page. The court did not abuse its
discretion in making this reasonable determination of recoverable printing and
copying costs based on the evidence before it.

DISPOSITION

The judgment is
affirmed. Each party shall bear its href="http://www.fearnotlaw.com/">costs on appeal.





ZELON,
J.

We
concur:





PERLUSS, P. J.





WOODS, J.