Filed 10/2/23 Snoeck v. ExakTime Innovations CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

STEVE SNOECK,

Plaintiff and Appellant,

v.

EXAKTIME INNOVATIONS, INC.,

Defendant and Respondent.

B321566

Los Angeles County

Super. Ct. No.

BC708964

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Michael P. Linfield, Judge. Affirmed.

Barritt Smith Miner, Perry G. Smith and Danielle N. 

Riddles for Plaintiff and Appellant.

Jackson Lewis, Michael A. Hood and Dylan B. Carp 

for Defendant and Respondent.

_________________________
2

Plaintiff Steve Snoeck appeals from the trial court’s order

awarding him $686,795.62 in attorney fees after the court applied

a .4 negative multiplier to its $1,144,659.36 adjusted lodestar

calculation “to account for [p]laintiff’s counsel’s . . . lack of 

civility throughout the entire course of this litigation.” The 

court awarded Snoeck fees after he prevailed on one of his 

six causes of action against his former employer ExakTime 

Innovations, Inc. on his complaint for disability discrimination 

under the Fair Employment and Housing Act (FEHA) (Gov. Code, 

§ 12900 et seq.) and related causes of action. The jury awarded 

Snoeck $130,088 in damages on his claim ExakTime failed to 

engage in a good faith interactive process with him. On Snoeck’s 

appeal, we affirmed that verdict.

Snoeck contends the $457,863 reduction in attorney fees 

based on his counsel Perry Smith’s incivility must be reversed 

for several reasons. In essence, he argues that—because the 

fee reduction was not associated with any costs—the court 

impermissibly applied it to punish Smith and had no legal 

authority to shift attorney fees to defendant as a sanction.

ExakTime argues the trial court’s downward adjustment to 

the lodestar sum was permissible under Ketchum v. Moses

(2001) 24 Cal.4th 1122 (Ketchum) because civility is an aspect 

of an attorney’s skill, as this District stated in Karton v. Ari 

Design & Construction, Inc. (2021) 61 Cal.App.5th 734 (Karton)

and on which the trial court relied.

We agree a trial court may consider an attorney’s pervasive 

incivility in determining the reasonableness of the requested fees. 

A court may apply, in its discretion, a positive or negative 

multiplier to adjust the lodestar calculation—a reasonable rate 

times a reasonable number of hours—to account for various 
3

factors, including attorney skill. (Ketchum, supra, 24 Cal.4th

at pp. 1131–1134; Karton, supra, 61 Cal.App.5th at pp. 744–745, 

747.) The record before us amply supports the trial court’s 

finding that plaintiff’s counsel was repeatedly, and apparently 

intentionally, uncivil to defense counsel—and to the court—

throughout this litigation. We thus find no abuse of discretion 

and affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Earlier proceedings

Snoeck sued ExakTime for six claims: five claims under 

the FEHA—failure reasonably to accommodate a known 

or perceived disability, failure to engage in a good faith 

interactive process, disability discrimination, failure to prevent 

discrimination and retaliation, and retaliation—and a claim 

for wrongful termination in violation of public policy. In June 

2019, a jury returned a verdict in Snoeck’s favor on his claim for

failure to engage in a good faith interactive process and found 

in favor of ExakTime on Snoeck’s five other claims. The jury

awarded Snoeck $58,088 in economic damages and $72,000 

in non-economic damages, for a total of $130,088. In October 

2019, the trial court denied Snoeck’s motions for judgment 

notwithstanding the verdict (JNOV) and for a new trial. 

Snoeck appealed, and we affirmed the judgment. (See Snoeck 

v. ExakTime Innovations, Inc. (Oct. 29, 2021, B302178)

[nonpub. opn.] (Snoeck I).

1 In affirming the judgment, we 

1 Snoeck also appealed from the trial court’s order denying 

the costs he incurred after he rejected ExakTime’s settlement 

offer under Code of Civil Procedure section 998 (998 offer) that

was greater than the jury awarded. We reversed that order 
4

concluded the court erred in giving CACI No. 2512, a jury 

instruction applicable to mixed-motive cases, but the error was

not prejudicial. (Snoeck I.) Snoeck petitioned for rehearing, 

which we denied. The California Supreme Court denied Snoeck’s 

petition for review and request for publication of Snoeck I.

After the matter was remanded, Snoeck filed a peremptory 

challenge under Code of Civil Procedure section 170.6 to 

disqualify the trial judge. The court denied the peremptory 

challenge as untimely. Snoeck did not file a writ petition 

to seek review of the denial.

2

2. Snoeck’s motion for attorney fees

Snoeck then filed a motion for attorney fees under 

Government Code section 12965, former subdivision (b), 

now subdivision (c)(6), as the prevailing plaintiff on a FEHA 

claim. He asked for the lodestar amount of $1,193,870 plus a 

1.75 multiplier for a total of $2,089,272.50. ExakTime opposed 

the motion. It argued the lodestar should be reduced based on 

several grounds, including, evidence of excessive billing; and/or 

Snoeck’s attorneys’ “[d]eceptive, improper and unprofessional 

conduct.” That conduct, ExakTime said, should be considered 

in the court’s discretion in “evaluating the credibility of the 

amount and reasonableness of” the requested fees.

finding the court erred in permitting ExakTime to submit 

evidence of the offer in its reply brief. (Snoeck I.)

2 Nonetheless, at the hearing on Snoeck’s fee motion, Smith 

mentioned the court’s denial of Snoeck’s peremptory challenge 

“to be sure . . . the court believe[d] that it could decide this motion 

without any bias toward plaintiff’s counsel.”
5

ExakTime noted that, in the moving papers, Snoeck’s 

attorneys had accused ExakTime of “exploiting the Court, 

utilizing ‘underhanded’ tactics, presenting a ‘sham defense,’ and, 

in general arguing that defense counsel perpetrated a fraud on

the Court.” It attached several emails from Snoeck’s counsel to 

ExakTime’s counsel sent in March, May, June, and December

2019; April, August, and November 2020; March 2021; and 

March 2022. In them, Smith accused ExakTime’s counsel of 

knowingly misrepresenting the law and facts to the trial and 

appellate courts, misconduct, and lying; referred to counsel’s 

actions as “the Marchlewski thing again” (referring to 

ExakTime’s primary attorney Theresa M. Marchlewski) and 

stated Marchlewski was “cringeworthy” and sold the court 

“the big lie”; referred to defense counsel as having viewed

the trial court “as an easy mark,” having “made a total fool of”

(all capitals omitted) and “exploited” the trust of the trial judge; 

having committed “a brazen con,” and having “duped” the 

trial and appellate courts.

ExakTime argued Smith’s emails “served no purpose 

in advancing Snoeck’s cause,” but it appeared he was seeking 

compensation for them in his block billing on eight dates. 

ExakTime argued Snoeck’s attorneys’ fees should be reduced by

the amount charged after the 998 offer, or alternatively reduced 

to 16.6 percent of the billed hours, proportional to their success 

rate. It also asked the court to apply a 25 percent “deduction

of Smith’s billings due to their patent excessiveness.”3

3 ExakTime also argued the court should use the same lower 

“insurance rates” ExakTime’s counsel had charged.
6

Snoeck’s reply described ExakTime’s opposition “as an 

effort to profit from its successful misrepresentations of law 

and fact in this case” and “rewarding such wrongful conduct by 

reducing fees would be unjust.” Snoeck asserted, “ExakTime 

successfully used deliberate misrepresentations of law and fact 

to hinder Snoeck’s ability to seek and obtain verdicts/award 

based on accurate law and facts.” (Original italics.) The reply 

accused ExakTime of having “engaged in a knowing fraud

on the trial court” and “in calculated misrepresentations to 

the courts in this case as an effort to limit Snoeck’s success 

in obtaining a remedy.”4

3. The trial court’s tentative ruling

The trial court posted a tentative ruling before the April 18, 

2022 hearing that partially granted Snoeck’s motion, awarding 

him $686,795.62 in attorney fees. The court posted a revised 

tentative announcing the same award, but with “mostly 

4 Although not before the trial court, Snoeck included in his 

appellant’s appendix an April 6, 2022 email he sent ExakTime’s 

counsel before filing his reply. That email states in part, “What 

I am wondering is why you provided no denial of having 

committed . . . fraud on the trial court, and of having 

committed the second fraud in the Court of Appeal, in your 

opposition papers or declarations.” “I also did not see you 

correct your earlier misrepresentations. Please do.” (Original

italics and boldface type.) It’s unclear what Snoeck hoped to 

gain by including this email in his appendix. If it was to make 

a record, that record serves only to reflect poorly on his counsel.
7

grammatical, . . . [non-]substantive” changes, which the court

ultimately adopted as its final order.

5

The trial court found Snoeck’s counsel’s individual hourly 

rates—$750 per hour for Smith and $600 and $535 per hour for 

two other attorneys—were reasonable. The court also corrected 

the requested lodestar for computation errors. The court applied 

a 20 percent “across the board reduction,” however, to the 

number of hours Snoeck’s counsel had requested to address 

billing concerns ExakTime raised, including overstaffing, 

duplicative and vague billing, and other issues. That reduction 

reduced the arithmetically corrected lodestar figure from 

$1,192,353.50 to $953,882.80.

The court then applied a 1.2 positive multiplier to account 

for the contingent nature of Snoeck’s counsel’s fees, including 

5 The changes included deletion of some previously-quoted 

language from Smith’s emails to ExakTime’s counsel, such as 

reference to the trial judge’s name. Snoeck makes much of the 

court having revised its tentative, claiming the court “deleted 

evidence of ExakTime’s counsel’s lack of candor to the court 

and ExakTime’s fabricated and unsupported defense.” The 

trial court’s tentative ruling was tentative. The court was free 

to reword it or to change it completely. (See Magno v. The College 

Network, Inc. (2016) 1 Cal.App.5th 277, 285, fn. 2 [court’s 

tentative ruling is not binding on the court].) That the court 

shortened some of the excerpted emails to focus on the issue—

counsel’s incivility—and omitted some of Smith’s more belittling 

comments about the court, does not demonstrate the court 

somehow was hiding ExakTime’s alleged misconduct as Snoeck 

seems to imply. Smith’s accusations were not evidence of 

misconduct. In any event, Snoeck has failed to show how 

the court’s quotation of Smith’s emails constitutes error.
8

the fact counsel had worked on the case for four years “without 

being paid.” The court explained that, at the statutory 10 percent 

interest rate per year, Snoeck’s counsel should be awarded a 

1.4 multiplier for work performed four years ago, a 1.3 multiplier 

for work done three years ago, a 1.2 multiplier for work from 

two years ago, and 1.1 multiplier for one-year old work. As 

that calculation would be too cumbersome, the court applied 

the median of 1.2 for all work done. Applying the 1.2 multiplier 

“for the time value of money” to the reduced $953,882.80 lodestar 

resulted in a revised lodestar of $1,144,659.36. Snoeck does 

not challenge the court’s 20 percent reduction of the lodestar 

or the application of a 1.2 multiplier rather than his requested 

1.75 multiplier.

Finally, the court applied a negative multiplier to 

account for Snoeck’s counsel’s lack of civility. The court’s order 

reproduced “some” of the “uncivil language” from Smith’s emails

that ExakTime had attached. The court included 13 quoted 

statements from 12 different emails—two from June 2019 before 

the verdict, three from 2020 after Snoeck filed his appeals from 

the judgment and order taxing costs, seven from March 2021

while those consolidated appeals were pending, and one email

sent in March 2022 months after this court issued its opinion 

in Snoeck I.

After quoting Smith’s emails for about two and half pages, 

the court noted Smith’s “incivility was not only directed to 

opposing counsel; it was also directed to the Court.” The court

remarked that, in its October 8, 2019 minute order, more than 

two years ago, it had stated, “ ‘Plaintiff’s counsel’s tone of voice 

(which was not reflected in the Court Reporter’s record) was 

both belittling and antagonistic; at times it verged on the 
9

contemptuous.’ ” The court continued, “The language quoted 

above is uncalled-for and unacceptable. Plaintiff counsel’s 

ad hominem attacks were unnecessary for the zealous 

representation of his client.” Citing caselaw, the court noted 

the absence of civility “ ‘heightens stress and debases the 

legal profession,’ ” and reminded Smith that the California 

Rules of Court,

6 rule 9.7 requires the attorney oath to conclude 

with, “ ‘ “As an officer of the court, I will strive to conduct myself 

at all times with dignity, courtesy and integrity.” ’ ”

Relying on Karton, the court stated, “Civility is not just 

a moral good. ‘Attorney skill is a traditional touchstone for 

deciding whether to adjust a lodestar. [Citation.] Civility is 

an aspect of skill.’ ” (Quoting Karton, supra, 61 Cal.App.5th

at p. 747.) The court ruled it would apply “a .4 negative 

multiplier to account for Plaintiff’s counsel’s repeated and 

apparently intentional lack of civility throughout the entire 

course of this litigation.” Again quoting Karton, the court 

noted, “ ‘[C]ivility in litigation tends to be efficient by allowing 

disputants to focus on core disagreements and to minimize 

tangential distractions. It is a salutary incentive for counsel 

in fee-shifting cases to know their own low blows may return 

to hit them in the pocketbook.’ ” (Ibid.) Applying the .4 

negative multiplier to the $1,144,659.36 revised lodestar

yielded a final award of $686,795.62 in attorney fees.

4. The hearing on Snoeck’s fee motion

At the hearing, Smith acknowledged having received 

the court’s tentative and argued on behalf of Snoeck. He noted

6 References to rules are to the California Rules of Court

unless indicated otherwise.
10

the court’s tentative “did not address . . . Snoeck’s claims 

regarding the ethical lapses of the defense.” He then quoted 

from rules 3.1 (meritorious claims and contentions) and 3.3 

(candor toward the tribunal) of the Rules of Professional Conduct. 

The court interrupted, “If you’re arguing that defense counsel 

had breached their ethical duties, I’m making no ruling on that. 

Defense counsel has not submitted any application for attorneys’ 

fees, so I’m not sure where you’re going on that.” Smith then

argued Karton concerned the additional litigation costs incivility

could cause. Smith and the court engaged in a lengthy colloquy;

we reproduce only portions of it. 

Court: “It’s more than simply that it increases fees. 

It debases the profession.”

Smith: “[T]he point [in Karton] is that [incivility] can 

result in overlitigation.”

Court: “Well, no, that’s not quite true. . . . [T]he 

[Karton] case says . . . [i]t is a salutary 

incentive for counsel in fee-shifting cases 

to know their own low blows may return 

to hit them in the pocketbook.”

Smith: “Right. They may if, as it says at the outset, 

[‘]judges permissibly may consider whether 

an attorney’s incivility in the litigation has 

affected the litigation cost[s].[’] [¶] . . . We have 

a public policy here. I’m bringing a FEHA 

claim as an attorney who’s entitled to a full 

award of fees because of the incentivizing that 

the Legislature want to do [sic] to bring these 

cases. I’m entitled to that full award of fees 
11

unless there’s a special circumstance that 

makes giving that award unjust.”

Court: “And you believe incivility is not such a special 

circumstance?”

Smith: “This court is saying . . . civility is an ethical 

component of professionalism. [¶] Now, is the 

court aware, because I’m not, of a particular 

rule of professional conduct that addresses 

civility?”

Smith again argued defense counsel violated rule 3.1 of 

the Rules of Professional Conduct by presenting “a mixed-motive 

defense in a case that does not have a mixed-motive defense.” 

A further colloquy ensued:

Court: “You’re arguing, as I understand it, the defense

is either complicit in the incivility or has 

themselves been incivil or has incited you 

to being incivil, something of that sort. And 

you’re arguing that the defendant has misled 

this court and the court of appeal; is that 

correct?”

Smith: “It did. And there’s been no denial of that.”

Court: “Okay. And the court of appeal has ruled that 

it affirmed, they find no prejudicial error in 

anything that was done and affirm.”

Smith: “Right. Well, the court of appeal actually found 

(reading [from the opinion]) this was not a 

mixed-motive case.”

“This court certainly knows and the defense 

has not denied that it’s impossible that the jury 

found that Snoeck could not work with an 
12

accommodation because it gave him lost income 

damages for the failure to interact. You can’t 

find both a lawful termination and an unlawful 

termination at the same time. Their argument 

was a false statement of fact to the Court of 

Appeal, which the Court of Appeal relied on 

after [the defense] made a false argument 

of law on mixed motive to the trial court.”

Court: “[Y]ou’re arguing . . . that the defendant made 

a false statement to the Court of Appeal?”

Smith: “And this court, yes, multiple times.”

Court: “What is the purpose of that argument? Is this 

court supposed to give you—increase your fees 

because they made a false statement?”

Smith: “Absolutely it is. And this is why, this court is 

concerning itself with civility. (Reading [from 

Karton]) [‘]Civility is an ethical component of 

professionalism.[’] Not even something that’s 

stated in the Rules of Professional Conduct but 

implied by what we are striving to do under 

oath that the court quoted.”

Smith continued to argue ExakTime’s counsel violated 

an “actual canon, actual Rules of Professional Conduct.” 

He asserted defense counsel, and the trial court, “completely” 

ignored the authority he’d cited. Smith again argued, “The jury 

did not find [Snoeck] couldn’t work. They could not possibly have 

found that. That’s another misrepresentation of law, in fact, 

to the Court of Appeal. But the court is not concerned with those 

ethical lapses that cost an enormous amount of money, that cost 

those appeals. Those appeals were only necessary because of the
13

misrepresentation.” The court reminded counsel that he “lost on 

appeal” because the court affirmed the verdict. Smith went on, 

“Were we . . . supposed to guess that [ExakTime’s] appellate 

counsel would represent that the jury found something it couldn’t 

possibly under law have found? We were supposed to guess that? 

And that the Court of Appeal would then adopt that false 

statement and go with it?”

The court acknowledged Snoeck’s “appeal was not 

frivolous.” But in response to Smith’s insistence that the Court 

of Appeal had found error, the trial court reiterated it was found 

to have “made no prejudicial instruction or evidentiary errors.” 

Smith continued to argue with the trial court:

Smith: “But is this court not concerned with why 

they found no prejudice, which it would stand 

[sic] throughout its opinion that the jury found 

that Snoeck could not work as a matter of law? 

That was based on a misrepresentation. 

The court’s not concerned that that 

misrepresentation is what the court of appeal 

relied, and what we all know that’s a legal 

impossibility?”

Court: “Apparently, you’re arguing that this court was 

snookered, the court of appeal was snookered, 

and everyone misunderstood what was 

happening other than yourself.”

Smith: “You know why?”

Court: “That is your argument.”

Smith: “Absolutely. It’s an indisputable argument.”
14

Court: “Okay. If it’s indisputable, I assume you 

petitioned the Supreme Court for review, 

and they didn’t take it, the review.”

Smith: “But it’s not disputed by the defense. It’s not 

disputed by the court, and it can’t be disputed 

because it’s clear what the jury found.”

Court: “I’m not going to argue with you, counsel. 

You’re saying that this court erred, the Court 

of Appeal erred, everyone erred but you. . . . 

That’s fine. I’ll give you five more minutes . . . .”

Smith again argued the court had ignored relevant 

authorities he’d cited, and defense counsel “still [had] an 

obligation . . . today to correct a false statement of law, a mixed 

motive; right? They told this court that a mixed-motive analysis 

applied. It’s a false statement of law. They’re still not correcting 

it, but we’re being accused of ethical lapses by our responses.” 

After further colloquy, Smith once more argued defense counsel 

knew they were “supposed to tell this court, that the jury did not 

find [Snoeck] couldn’t work . . . [and] that they misrepresented 

the law when they put mixed motive [sic], and that they ignored 

Wallace7 every single time . . . .”

At that, the court replied, “I think you’ve stated this now at 

least a half a dozen times. I’m going to turn to defense lawyer.” 

Smith then asked to go through each of the 13 statements quoted 

in the tentative. The court noted he had “used . . . much more 

7 Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 

109. We discussed Wallace in Snoeck I but found the facts 

distinguishable as to certain of Snoeck’s arguments. (See 

Snoeck I.)
15

than . . . the five minutes I told you ten minutes ago,” but let 

Smith “take another minute and address whichever one you 

think is most important.” Smith read from the first three 

statements, arguing he didn’t know why they were “worthy 

of cutting fees” or “what the problem [wa]s.”

Defense counsel submitted, and the court adopted its

tentative as its final ruling. Smith then asked for “a statement 

of decision that explains why the statements that the court 

selected are worthy of fee cutting under the authority cited by 

the court?” The court noted no statement of decision is required 

in attorney fee motions and adjourned the proceeding. Snoeck 

filed a notice of appeal on June 7, 2022.

Five months later, on November 8, 2022, Smith sent 

defense counsel an email entitled, “Your most egregious and 

successful attempt to cause a court to abuse it[s] authority.” 

Smith wrote, “Do any of you know what rule of law the trial court 

was using to define the selections of emails you used to add 

another appeal to this litigation . . . slash reasonable FEHA fees 

by $457,000 based on some rule only he knows?” He sent another 

email on November 29: “I’ll take that as a: [¶] ‘We have no idea 

what rule he was applying, as we cited no authority in our brief 

for a reason—we had none.’ Not that I would quote you on my 

attempt to articulate your position, but it seems the inescapable 

conclusion here—no rule, just abuse. [¶] Fair?”8

With its respondent’s brief, ExakTime filed a motion

asking this court to take additional evidence under Code of Civil 

Procedure section 909 and rule 8.252(c) of 18 emails—including 

8 Snoeck included these emails in his appellant’s appendix. 

For what purpose, we cannot tell. 
16

the two described above—Smith sent defense counsel after the 

trial court issued its April 18, 2022 order. ExakTime argues 

the evidence is relevant to show “Snoeck’s counsel’s uncivil 

conduct has continued since the order was issued,” and further 

demonstrates the trial court acted within its discretion. We deny 

the motion. Nevertheless, we consider the November 8 and 29, 

2022 emails, as Snoeck himself included them in his appellant’s 

appendix.

5. Snoeck’s belated requests for judicial notice

On July 7, 2023, three court days before oral argument, 

Snoeck moved this court to take judicial notice of what he 

asserted were excerpts from the record filed in Snoeck I. The 

pages Snoeck attached to his motion were not as they appeared 

in the prior record—counsel had altered the documents by 

adding argumentative margin notes and highlighting certain 

text. We deny Snoeck’s motion. On July 10, two days before 

oral argument, Snoeck filed another motion, this time asking us 

to take judicial notice of orders the trial court filed in other cases. 

The orders are irrelevant to this appeal. We deny this second 

motion, as well.

DISCUSSION

Snoeck contends the trial court erred in reducing his

attorney fees by $457,863 to account for his counsel’s incivility 

because: the fee reduction was not associated with any costs 

and thus was impermissibly imposed to punish Smith; the 

court had no legal or inherent authority to shift attorney fees 

as an “incivility sanction”; Smith’s emails were “repeated 

attempts . . . to persuade ExakTime’s counsel to correct their 

misrepresentations of facts and law to the court”; the court’s 

shifting of fees for incivility undermined the FEHA’s purpose;
17

reducing the fee award for Smith’s uncivil email communications 

violated his First Amendment right to free speech; the court 

violated Smith’s due process rights; and any “ ‘civility rule’ ” 

would be void for vagueness.

1. Applicable law and standard of review

Under the FEHA, “the court, in its discretion, may award 

to the prevailing party . . . reasonable attorney’s fees and costs.” 

(Gov. Code, § 12965, subd. (c)(6).) “Because fee awards to 

prevailing FEHA plaintiffs promote the important public policy 

in favor of eliminating discrimination in the workplace [citation], 

a ‘ “prevailing plaintiff ‘should ordinarily recover an attorney’s 

fee unless special circumstances would render such an 

award unjust.’ ” ’ [Citations.] ‘ “A fee request that appears 

unreasonably inflated is a special circumstance permitting 

the trial court to reduce the award or deny one altogether.” ’ 

[Citation.]” (Vines v. O'Reilly Auto Enterprises, LLC (2022) 

74 Cal.App.5th 174, 182; Chavez v. City of Los Angeles (2010) 

47 Cal.4th 970, 990 (Chavez).)

“In order to calculate an attorney fee award under the 

FEHA, courts generally use the well-established lodestar method. 

The lodestar amount is simply the product of the number 

of hours spent on the case, times an applicable hourly rate.”

(Caldera v. Department of Corrections & Rehabilitation (2020)

48 Cal.App.5th 601, 607; see also Ketchum, supra, 24 Cal.4th 

at p. 1133 [the “lodestar figure [is] based on the reasonable 

hours spent, multiplied by the hourly prevailing rate for private 

attorneys in the community conducting noncontingent litigation 

of the same type”].) “ ‘The trial court then has the discretion 

to increase or reduce the lodestar figure by applying a positive 

or negative “ ‘multiplier’ ” based on a variety of factors.’ ” (Taylor 
18

v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249;

Chavez, supra, 47 Cal.4th at p. 985 [“the resulting [lodestar] 

dollar amount is then adjusted upward or downward by taking 

various relevant factors into account”]; Ketchum, at p. 1134.) 

Those factors include, among others, the novelty and difficulty 

of the issues presented, the skill demonstrated in litigating them, 

and the contingent nature of the fee award. (Ketchum, at p. 1132; 

Karton, supra, 61 Cal.App.5th at p. 744.)

“ ‘A trial court may not rubberstamp a request for 

attorney fees, but must determine the number of hours 

reasonably expended.’ ” (Morris v. Hyundai Motor America

(2019) 41 Cal.App.5th 24, 38 (Morris).) Nevertheless, “[a] trial 

court is not required to state each charge it finds reasonable 

or unreasonable. A reduced award might be fully justified by 

a general observation that an attorney overlitigated a case.” 

(Karton, supra, 61 Cal.App.5th at p. 744.) Thus, “ ‘when a 

“ ‘voluminous fee application’ ” is made . . . the court may . . . 

“ ‘make across-the-board percentage cuts either in the number 

of hours claimed or in the final lodestar figure.’ ” ’ ” (Morris,

at p. 40.) “But the court must clearly explain its reasons 

for choosing the particular negative multiplier that it chose; 

otherwise, the reviewing court is unable to determine that 

the court had valid, specific reasons for its across-the-board 

percentage reduction.” (Warren v. Kia Motors America, Inc.

(2018) 30 Cal.App.5th 24, 41 (Warren).) The trial court is 

not required to issue a statement of decision with regard to 

a fee award, however. (Ketchum, supra, 24 Cal.4th at p. 1140.)

“We review attorney fee awards for abuse of discretion. 

An experienced trial judge is in the best position to evaluate 

the value of professional services rendered in the trial court. 
19

We presume the fee approved by the trial court is reasonable. 

We will not disturb the trial court’s judgment unless it is clearly 

wrong. The burden is on the objector to show error.” (Karton, 

supra, 61 Cal.App.5th at p. 743.) “No established criteria 

calibrate the precise size and direction of the multiplier, thus 

implying considerable deference to the trial court decisionmaking 

about attorney fee awards.” (Id. at p. 745.) 

Moreover, “this court must presume that the trial court 

considered all factors in reaching its decision, ‘even though the 

court may not have mentioned or discussed them in its written 

ruling.’ ” (Mikhaeilpoor v. BMW of North America, LLC (2020) 

48 Cal.App.5th 240, 255 (Mikhaeilpoor).) We have “no authority 

to disturb the trial court’s factual findings if they are supported 

by substantial evidence.” (Ibid.)

2. The record shows Smith acted uncivilly, and his 

incivility was unjustified

Snoeck argues the court impermissibly applied its 

downward multiplier to punish Smith for violating a “fictional” 

“ ‘civility’ rule.” Incivility may not serve as a basis for attorney 

discipline by the state bar—yet—but all licensed California 

attorneys are expected to conduct themselves in a civil manner.9 

9 The California Civility Task Force’s (CCTF) initial 

September 2021 report recommended the State Bar amend its 

disciplinary rules to prohibit “repeated incivility and clarify[ ] 

that civility is not inconsistent with zealous representation.” 

(Cal. Civility Task Force, Beyond the Oath: Recommendations 

for Improving Civility (Sept. 2021) p. 3 <https://caljudges.org/

docs/PDF/California%20Civility%20Task%20Force%20Report%20

9.10.21.pdf> [as of Sept. 29, 2023], archived at <https://perma.cc/

DVT3-9B2L>.) After receiving public comment on such a 
20

Since 2014, the oath new attorneys of this state must take 

requires them to “vow to treat opposing counsel with ‘dignity, 

courtesy, and integrity.’ ” (Lasalle v. Vogel (2019) 36 Cal.App.5th 

127, 134 (Lasalle).) Although Smith asserts he took the attorney 

oath before it was so revised, as an officer of the court he owed 

the court and opposing counsel “ ‘professional courtesy.’ ” 

(Id. at p. 132, quoting Lossing v. Superior Court (1989) 207 

Cal.App.3d 635, 641 [attorneys’ “ ‘responsibilities as officers 

of the court include professional courtesy to the court and

to opposing counsel’ ”].) Rather than a new requirement, 

the “ ‘civility oath’ ” added by the rules in 2014 “serves as 

an important reminder to lawyers of their general ethical 

responsibilities in the pursuit of all their professional affairs, 

including litigation.” (People v. Shazier (2014) 60 Cal.4th 109, 

147, fn. 17, italics added.)10 As the court stated in Karton, civility 

proposed rule, the Office of Professional Competence asked

the State Bar Board of Trustees to approve, among other

amendments, adding rule 8.4.2 to the Rules of Professional 

Conduct, which would prohibit a lawyer from engaging in 

incivility in the practice of law. (See Erika Doherty, State Bar 

Office of Prof. Competence, mem. to State Bar Bd. of Trustees 

(State Bar mem.), July 20, 2023 at p. 11 & Attachment E, p. 3 

<https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem

1000031188.pdf> [as of Sept. 29, 2023], archived at <https://

perma.cc/8JMF-A3U3>.)

10 At the CCTF’s recommendation, the State Bar also received 

public comment on, and the Board of Trustees has been asked 

to approve, an amendment to California Rules of Court, rule 9.7

requiring all licensed attorneys on active status to “submit 

a declaration containing” the civility language added to the 
21

“is an ethical component of professionalism,” and it “is socially 

advantageous [as] it lowers the costs of dispute resolution.” 

(Karton, supra, 61 Cal.App.5th at p. 747.)11 

Substantial evidence supports the trial court’s finding

that Smith was uncivil toward opposing counsel and the court,

and his “ad hominem attacks were unnecessary for the zealous 

representation of his client.” ExakTime presented undisputed 

evidence showing Smith accused its individual attorneys of 

telling the courts “lies,” committing “fraud” and a “brazen con,”

making “misrepresentations” to the trial court and this court,

engaging in “sleazy” and “cringeworthy” conduct, and “dup[ing]

the court of appeal.” Snoeck’s briefing in the trial court also 

accused ExakTime of having “successfully used deliberate

misrepresentations of law and fact” (italics omitted), “engaged 

in a knowing fraud on the trial court,” and “engaged in calculated 

misrepresentations to the courts in this case.” And, in his 

current briefing to this court, Snoeck continues to accuse 

ExakTime’s counsel of making “intentional, calculated, and 

attorney’s oath and annually “reaffirm the civility pledge.” 

(See State Bar mem. at p. 10 & Attachment A, p. 1.)

11 ExakTime argues the civility requirement, as explained 

in Lasalle, supra, 36 Cal.App.5th at p. 130, is based on section 

583.130 of the Code of Civil Procedure, which states the policy

of this state is that “all parties shall cooperate in bringing [an] 

action to trial or other disposition.” The court invoked that 

section, however, in discussing the ethical obligation to warn 

opposing counsel before taking a default. (Lasalle, at pp. 135, 

137; Code Civ. Proc., § 583.130, Law Revision Com. coms. 

[§ 583.130 “is consistent with statements in the cases of the 

preference for trial on the merits”].)
22

repeated misstatements of law and fact to the court,” presenting 

a “fraudulent defense,” telling a “lie,” relying on “a second fraud” 

in this court, and “lack[ing] . . . integrity.”

Despite these express condemnations of defense counsel’s 

character, at the fee hearing Smith came across as almost 

incredulous that his communications with opposing counsel 

would be considered uncivil. He claimed not to know how certain 

statements were “worthy of cutting fees” and “d[id]n’t see what 

the problem [wa]s.”

Smith also acted with incivility toward the trial court. 

The court itself described Smith’s tone during the October 

2019 JNOV/motion for new trial hearing as “ ‘belittling and 

antagonistic’ ” and having “ ‘verged on the contemptuous.’ ” 

Smith certainly belittled the court in his emails to opposing 

counsel, claiming defense counsel made “a total fool of” (full 

capitals omitted), “exploited,” and “duped” the trial court, and

treated the trial court as an “easy mark.” Snoeck’s current 

briefing to this court asserts the trial judge engaged in 

“provocative misconduct” that could be a “potential excuse

for any impropriety in [Smith’s] remarks.” And, Smith’s 

apparent disdain for the trial court practically jumps off the 

pages of the reporter’s transcript of the fee motion hearing.

Snoeck nonetheless contends these uncivil communications 

were justified. At the fee hearing, Snoeck repeatedly argued

ExakTime’s attorneys violated their duty of candor by 

misrepresenting the law and facts in arguing a mixed motive 

analysis applied to ExakTime’s decision to terminate Snoeck’s 

employment. Smith argued his emails were necessary to 

“call out” defense counsel’s unethical behavior—their purported 

misrepresentations to the court—and complained the court 
23

had not addressed their ethical lapses. He argued ExakTime 

was being “rewarded 450,000-plus dollars for . . . upsetting us 

enough to send e-mails calling . . . out” “the unethical conduct 

that has not been denied to this date . . . . And to call out the rule 

of candor.” He claimed it was defense counsel’s misstatements 

that increased the attorney fees in the case.

In Snoeck I, we concluded the trial court erred in giving 

the jury the mixed motive instruction proffered by ExakTime, 

but Snoeck wasn’t prejudiced. (Snoeck I.) That conclusion—

that this case did not fit the mixed-motive mold—did not imply 

or somehow demonstrate that, as Snoeck seems to contend, 

defense counsel misrepresented the law and facts to the trial 

court or to this court. In litigation, attorneys regularly dispute 

how the law—and what specific law—applies to the facts of a 

particular case. One side will be wrong. But that does not mean 

the side that is “wrong” tried to convince the court to adopt a 

theory it knew was legally erroneous. Moreover, an employer

lawfully may terminate an employee’s employment due to the 

employee’s disability, e.g., where the employee cannot perform 

his or her job even with a reasonable accommodation or where 

the requested accommodation is not reasonable. (See Gov. Code, 

§ 12940, subd. (a)(1); Hanson v. Lucky Stores, Inc. (1999) 74 

Cal.App.4th 215, 226–227.) In Snoeck I, we essentially concluded 

the jury could have made such a finding. (Snoeck I.) We need 

not repeat that analysis here.

Suffice it to say Snoeck disagreed. He argued to the 

trial court, as he did in his petition for rehearing to this court,

ExakTime’s counsel falsely stated the jury could have found

Snoeck would have been unable to return to work. We 

already rejected this contention in denying Snoeck’s petition
24

for rehearing. In affirming the judgment, we had concluded—

on the record before us—the jury could have made this finding. 

And, to make this record clear, we were not “duped” in so 

finding.12 We remind plaintiff’s counsel there has been no 

finding that defense counsel misrepresented the law or facts 

to the trial court or to this court. 

Snoeck also argues Smith’s accusatory emails to defense 

counsel were effective because ExakTime changed its tactics 

on appeal, and its counsel never denied Smith’s accusations.

First, ExakTime’s focus on different arguments on appeal is 

not an admission of wrongdoing. Respondent’s counsel’s job 

on appeal is to show no prejudicial error occurred, not to retry 

the underlying case. Second, ExakTime’s counsel had no 

obligation to respond to Smith’s accusations and ad hominem 

attacks. Indeed, as Smith sent several of those emails well after 

the close of business or on the weekend, it seems unlikely he 

expected counsel to respond. And, many of his emails posed 

rhetorical questions or personal musings.13 In any event, that 

12 We also take issue with Snoeck’s accusation that this court 

has “sat on” and is “slow-playing this appeal” in his petition 

to transfer filed with the California Supreme Court. Snoeck 

initially missed the deadline to file his opening brief. The case 

was not fully briefed until April. This court set the matter for 

argument on the first date available considering other pending 

matters and court business.

13 Snoeck’s briefs filed with this court also are peppered with 

rhetorical questions and side comments. For example, “Also, 

someone might want to inform the State Bar, The Civility Task 

Force, and all lawyers and judges – CCP 583.130 has, according 

to ExakTime, prohibited uncivil emails outside of court with 
25

defense counsel did not deny Smith’s accusations neither equates

to a tacit admission that they misrepresented the law or facts—

or made false statements—nor compels a finding that they did. 

Defense counsel very well could have decided—and rightfully so

—any response to Snoeck’s counsel would have turned into an

unproductive and juvenile “did not, did so” sparring match. 

Litigation by its nature is contentious; the parties are 

in court because they do not agree. One side’s frustration with 

the other side’s legal theory is understandable. Certainly, 

attorneys must advocate for their clients’ positions, point out the 

flaws in opposing counsel’s argument, and express disagreement 

with the court. But Snoeck’s counsel’s frustration did not give 

him a license to personally attack defense counsel and belittle 

the trial court. Smith’s incivility does not reflect persuasive 

advocacy. A reasonable attorney would not believe that 

communicating with opposing counsel in such a way would

“bring them around,” so to speak. Nor does antagonizing the 

trial court help further one’s client’s cause. In short, Smith’s

beratement of opposing counsel and belittling of the trial court

were unnecessary to advocate zealously on Snoeck’s behalf.

3. The court had discretion to apply a negative 

multiplier to account for counsel’s incivility

“The benchmark in determining attorney fees is 

reasonableness.” (Karton, supra, 61 Cal.App.5th at p. 744.)

In Karton, a trial court limited prevailing plaintiffs’ recovery of 

statutory attorney fees to about one third of the lodestar amount 

punishment to be decoded at court’s whim since 1984 (when 

it was enacted). Who knew?” (Original italics.) Comments like 

these are not helpful. They have no place in appellate briefing.
26

they had requested, after it found the requested fees were 

unreasonable—in part due to counsel’s overlitigation of the 

matter and lack of civility in plaintiffs’ briefing. (Id. at pp. 738, 

741–743.) 

The appellate court’s opinion affirming the order begins, 

“Trial judges deciding motions for attorney fees properly may 

consider whether the attorney seeking the fee has become 

personally embroiled and has, therefore, overlitigated the case. 

Similarly, judges permissibly may consider whether an attorney’s 

incivility in litigation has affected the litigation costs. [¶] Here, 

the trial judge found . . . [the] fee motion triggered these 

concerns.” (Karton, supra, 61 Cal.App.5th at p. 738.)

At the attorney fee hearing, Snoeck latched on to this 

introduction. As he did below, he essentially argues Karton

supports reducing attorney fees for incivility only if the attorney’s 

incivility directly caused increased costs, and his emails could 

not have increased costs. He contends “ExakTime did not and 

could not show that any fees were incurred by the emails because 

Snoeck did not request fees for them and ExakTime did not 

respond to them.” Snoeck’s brief also notes Smith’s “tone of voice 

at a hearing could not have increased fees,” and seems to argue 

the cited emails were not tied to increased costs because most 

“were sent post trial.”14 He thus argues the $457,863 fee 

reduction was punitive because it was “wholly untethered 

to any cost incurred as a result of ‘incivility.’ ”

14 Snoeck’s apparent contention that Smith’s posttrial 

incivility would not have increased costs is perplexing. Based 

on Smith’s billing records, of 1,239.55 hours submitted on this 

case, he spent about 276.4 hours through trial, leaving about 

963.15 hours spent posttrial from June 30, 2019 to May 2, 2021.
27

The record supports the trial court’s implied finding that 

Smith’s “repeated and apparently intentional lack of civility 

throughout the entire course of this litigation”—and seeming 

personal embroilment in the matter—resulted in inefficient, 

fractious, and thus more costly, litigation. As the court in Karton

aptly observed:

“Incivility between counsel is sand in the gears.

[¶] Incivility can rankle relations and thereby 

increase the friction, extent, and cost of 

litigation. Calling opposing counsel a liar . . . 

can invite destructive reciprocity and 

generate needless controversies. Seasoning a 

disagreement with avoidable irritants can turn 

a minor conflict into a costly and protracted 

war. . . . All sides lose, as does the justice 

system, which must supervise the hostilities.

[¶] By contrast civility in litigation tends to 

be efficient by allowing disputants to focus on 

core disagreements and to minimize tangential 

distractions. It is a salutary incentive for 

counsel in fee-shifting cases to know their 

own low blows may return to hit them in the 

pocketbook.” (Karton, supra, 61 Cal.App.5th

at p. 747.)

The trial court certainly could have found Smith’s 

repeated accusations against defense counsel of lying, knowingly 

misrepresenting the law and facts, and engaging in fraud 

similarly created unnecessary and time-consuming hostilities 

and distractions. Smith spent time and energy writing the 

emails, and we can infer defense counsel read them, even if they 
28

did not respond.

15 Attacks on ExakTime and its counsel also 

were included in briefing for which Snoeck’s counsel billed time. 

ExakTime’s counsel certainly would have had to spend time 

reading that briefing. The court also was bombarded with 

plaintiff’s counsel’s attacks on defense counsel and counsel’s 

uncivil demeanor toward the court. That Smith continued his 

attacks—even months after the trial court entered its attorney 

fee order—also demonstrates how personally embroiled he

had become in this litigation.

Smith seems to argue that each statement of his that

the trial court quoted had to be tied to an increase in costs for 

the trial court to reduce Snoeck’s attorney fees based on those 

statements. The court’s order quotes 13 statements from 

12 emails Smith sent that ExakTime provided in its opposition 

to the fee motion.16 The court noted, however, that those 

statements demonstrated “[s]ome of [Smith’s] incivility.” 

In other words, the court did not limit the basis of its order 

15 Snoeck asserts he did not request fees for the emails, but 

ExakTime argued Smith’s proffered billing records appeared to 

include time spent drafting them.

16 Snoeck’s repeated complaint that Smith was not permitted 

to address each of the quoted statements is specious. The trial 

court gave Smith at least 20 minutes to make his argument. 

He spent his time—even after being warned he had only a 

few minutes left—rehashing his argument about ExakTime’s 

misrepresentations and false statements, the trial and appellate 

court’s mistakes, and—in the trial court’s words—the courts 

having been “snookered.” The court nevertheless permitted 

Smith to “take another minute” to address whichever statement 

he thought was most important. Smith addressed three.
29

to the quoted statements but provided them as examples of 

Smith’s incivility. Moreover, the court was not required to 

identify every unreasonable charge related to Smith’s incivility 

to justify a downward adjustment to the lodestar. (Karton,

supra, 61 Cal.App.5th at p. 744; see Morris, supra, 41 

Cal.App.5th at p. 40.)

In any event, we do not agree with Snoeck that the trial

court had no authority to reduce the lodestar based on incivility 

unless the incivility caused an increase in specific costs. As the 

court in Karton noted, “Civility is an aspect of skill.” (Karton, 

supra, 61 Cal.App.5th at p. 747.) Smith seems to ignore this 

point—that his incivility reflects on his skill as a professional—

a factor our high court has stated may be considered in adjusting 

the lodestar. (Ketchum, supra, 24 Cal.4th at p. 1132 [trial 

court may adjust the lodestar based on “the skill displayed in 

presenting” the legal issues]; Karton, at p. 747 [noting “[a]ttorney 

skill is a traditional touchstone for deciding whether to adjust 

a lodestar,” which includes civility].)

Thus, although incivility can increase the costs of 

litigation, the trial court was not required to find Smith’s 

comments directly caused an increase in ExakTime’s or Snoeck’s 

fees before applying a downward adjustment to the lodestar. 

Courts may adjust the lodestar figure upward or downward 

“ ‘in order to fix the fee at the fair market value for the legal 

services provided.’ ” (Ketchum, supra, 24 Cal.4th at p. 1134, 

quoting PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 

1095 (PLCM Group).) The court thus could have found the 

lodestar dollar figure here exceeded the fair market value for 

Smith’s legal services given his lack of civility. As the court 

in Karton put it, “Excellent lawyers deserve higher fees, and 
30

excellent lawyers are civil.” (Karton, supra, 61 Cal.App.5th

at p. 747.) Awarding the same amount of attorney fees to an 

uncivil lawyer as one who is civil thus would not constitute 

a reasonable fee.

Another court explained, in discussing an upward lodestar 

adjustment, “As to the skill of the attorneys in litigating the case, 

that factor necessarily is reflected in the lodestar figure. The 

more skillful and experienced the attorney the higher his or her 

hourly charges will be. It follows that the skill of an attorney 

will justify enhancing the lodestar figure only if the skills 

exhibited are beyond those that might be expected of attorneys 

of comparable expertise or experience.” (Weeks v. Baker & 

McKenzie (1998) 63 Cal.App.4th 1128, 1176.) Our high court 

similarly cautioned, “[A] trial court should award a multiplier 

for exceptional representation only when the quality of 

representation far exceeds the quality of representation that 

would have been provided by an attorney of comparable skill 

and experience billing at the hourly rate used in the lodestar 

calculation.” (Ketchum, supra, 24 Cal.4th at p. 1139.)

Applying the same logic here, a downward departure from 

the lodestar figure is justified where the attorney demonstrates 

he is less skilled than would be expected of an attorney with 

comparable expertise or experience, billing at the same rate. 

The evidence also supports the trial court’s implied finding that 

plaintiff’s counsel presented the issues with less skill—through 

his incivility—than would be expected of comparably experienced

attorneys charging $750 per hour who conducted themselves 

with civility. Under Ketchum and Karton, the trial court thus 

had discretion to reduce the lodestar figure based on counsel’s 

skill reflected by his incivility. And, as we discussed, the record 
31

supports the court’s implied finding that an attorney of similar 

experience would not have believed making personal attacks on

opposing counsel, and repeating those accusations to the court, 

would be an effective strategy to persuade opposing counsel its 

position was wrong or to persuade the court his client’s position 

was right.

4. The record supports the court having reduced the 

adjusted lodestar for an appropriate, case-specific 

reason

As we noted, “when a trial court applies a substantial 

negative multiplier to a presumptively accurate lodestar attorney 

fee amount, the court must clearly explain its case-specific 

reasons for the percentage reduction.” (Warren, supra, 30 

Cal.App.5th at p. 37.) That way, a reviewing court can determine 

if the trial court reduced the fee award for valid reasons. (Id.

at p. 41.) The trial court did so here. It specifically explained 

it was applying the .4 negative multiplier to account for counsel’s 

“repeated and apparently intentional lack of civility throughout 

the entire course of this litigation.” And, before doing so—

citing Karton—the court specifically noted, “Civility is not just 

a moral good. ‘Attorney skill is a traditional touchstone for 

deciding whether to adjust a lodestar. . . . Civility is an aspect 

of skill.’ ” The court’s reason for applying the .4 negative 

multiplier thus was clear and, as we discussed, it was valid. 

(Cf. Warren, at pp. 40–41 [remanding matter in consumer 

protection case where it was unclear to what extent the court’s 

application of a negative .33 multiplier to reduce statutory 

attorney fee award was based on stated impermissible reason—

tying amount of fees to plaintiff’s modest damages award—and 
32

other permissible reasons the court gave to arrive at a reasonable 

fee].)

Snoeck notes that, after discussing the Ketchum factors and 

ExakTime’s arguments––including that counsel’s requested 

hours were not credible due to “ ‘improper and unprofessional 

conduct’ ”––the court stated it had “ ‘consider[ed] all the relevant 

factors’ ” and applied the 20 percent reduction “ ‘to address the 

above concerns.’ ” (Italics and boldface type omitted.) Snoeck 

thus argues the court already had accounted for attorney skill 

and unprofessionalism when it initially reduced the lodestar 

figure.

We do not agree. The court’s order is clear and methodical. 

The court first reduced plaintiff’s requested lodestar figure by 

20 percent to address various concerns with the reasonableness 

of the number of hours plaintiff’s counsel claimed, including—

among other factors—overstaffing, excessive and vague billing, 

duplicative work, and the degree of plaintiff’s success. The 

court then applied a positive multiplier to the lodestar figure 

it calculated to account for the contingent nature of the attorney 

fees and plaintiff’s counsel’s delayed payment. After making 

those calculations, the court specifically addressed counsel’s 

incivility under a separate heading. We therefore can conclude 

the court found the adjusted lodestar—after applying the

1.2 positive multiplier—did not reflect a reasonable fee award 

in light of plaintiff’s counsel’s sub-par skill (due to his incivility)

in presenting the issues. Moreover, in determining the initial 

lodestar amount, the court accepted Snoeck’s attorneys’ rates as 

within the prevailing market rates given their “prior experience.” 

The court thus had not adjusted the lodestar to account for the
33

effect counsel’s incivility had on those otherwise reasonable 

hourly rates until it applied the .4 negative multiplier.

Snoeck nevertheless insists the court applied the .4 

multiplier as a sanction. A trial court may not reduce attorney 

fees “merely for the purpose of punishing” plaintiff or plaintiff’s 

counsel. (Ketchum, supra, 24 Cal.4th at p. 1142; EnPalm, LLC 

v. Teitler (2008) 162 Cal.App.4th 770, 775 & fn. 5.) We do not 

agree with Snoeck’s contention, however, that the court reduced

the lodestar figure to punish plaintiff’s counsel for his First 

Amendment protected communications, litigation strategy, 

or misconduct. After determining the lodestar figure, “the 

trial court was entitled to consider whether that sum should 

be reduced to a reasonable figure under the applicable equitable 

principles.” (EnPalm, at p. 774.) In EnPalm, appellants—

prevailing parties entitled to contractual attorney fees—argued 

the trial court reduced their attorney fees as punishment for 

a party’s “litigation misconduct.” (Id. at pp. 772, 775.) The 

appellate court agreed a trial court may not reduce a prevailing 

party’s attorney fees “for purely subjective reasons, such as 

its views on the merits of the case, or antipathy toward a party, 

her counsel, or counsel’s litigation strategy . . . [, or] solely to 

punish a party for such reasons.” (Id. at p. 775, fn. 5.) The court 

there affirmed the trial court’s reduction of the lodestar sum, 

however, because the party’s litigation conduct rendered most 

of the claimed fees unnecessary. (Id. at pp. 772–773, 775, fn. 5.)

We are convinced the trial court did not choose to apply 

the negative .4 multiplier to sanction or punish plaintiff’s 

counsel. The court properly followed the lodestar adjustment 

method to arrive at a reasonable attorney fee award given 

the relevant case-specific factors that weighed in favor of both 
34

augmenting and diminishing the lodestar figure. We do not read 

the court’s statements about Smith’s incivility as disapproving 

of his litigation strategy—or seeking to punish Smith or Snoeck—

but as a commentary on Smith’s skill in executing that strategy 

in light of his incivility.

Snoeck also seems to contend the court’s reliance on 

Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 

1265—which involved sanctions rather than the reduction of 

an attorney fee award—demonstrates it imposed the .4 negative 

multiplier to punish Smith.17 The court quoted the following 

passage from that case: “The absence of civility displayed 

by some practitioners heightens stress and debases the legal 

profession. Those attorneys who allow their personal animosity 

for an opposing counsel or an opposing party to infect a case 

damage their reputations and blemish the dignity of the 

profession they have taken an oath to uphold.” (Id. at pp. 1266–

1267 [affirming order granting terminating sanctions based 

on a self-represented attorney’s threats and open contempt for

the court].) Nevertheless, we can infer the court cited the case to 

demonstrate the importance of civility in litigation, not to signal 

it was applying the negative multiplier to sanction plaintiff’s 

17 Smith insinuates the court chose to reduce the lodestar 

by 40 percent because that amount is close to the fees 

attributable to Smith’s claimed hours. Smith submitted time 

records indicating he spent 1,239.55 hours working on the case—

including Snoeck’s appeals—from March 23, 2019 through May 2, 

2021. He asked for only 675 of those hours to be included in 

the lodestar; we presume he recognized the total hours he spent 

was unreasonable. At $750 per hour, 675 hours is equivalent 

to $506,250.
35

counsel. Moreover, the court’s order specifically recognized 

civility was not just a moral good but an aspect of attorney skill. 

And, as discussed, ample evidence supports the court’s reduction 

of the lodestar to account for plaintiff’s counsel’s skill given his 

incivility toward opposing counsel and the court. (Cf. Edgerton v. 

State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363 [affirming 

application of positive multiplier given, in part, “ ‘the skill 

displayed by plaintiff’s counsel in overcoming the intransigent 

opposition of defendant’ ”].)

Nor did the court contravene the principles of the FEHA 

in doing so. The lodestar adjustment method—which gives the 

court the discretion to augment or diminish the lodestar figure to 

arrive at a reasonable fee—is the gold standard for determining 

an attorney fee award under the FEHA. (See, e.g., Nichols v. 

City of Taft (2007) 155 Cal.App.4th 1233, 1240 [court determines 

reasonable fee award under fee-shifting statutes including FEHA 

first “by deciding ‘the reasonable hours spent’ on the case and 

multiplying that number by ‘the hourly prevailing rate for 

private attorneys in the community’ ” and then may “adjust the 

lodestar figure in light of a number of relevant factors that weigh 

in favor of augmentation or diminution”]; see also Chavez, supra, 

47 Cal.4th at pp. 976, 985 [recognizing courts compute attorney 

fees awarded under the FEHA “based on the lodestar adjustment 

method,” which permits the trial court to adjust its calculation 

of the lodestar dollar amount “upward or downward by taking 

various relevant factors into account” and affirming denial 

of FEHA plaintiff’s fees under the circumstances]; Flannery 

v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647 

(Flannery) [explaining trial court’s exercise of discretion in 

awarding attorney fees under the FEHA “must be based on 
36

a proper utilization of the lodestar adjustment method, both 

to determine the lodestar figure and to analyze the factors that 

might justify application of a multiplier” and finding error in 

court’s application of a positive multiplier when it appeared 

already to have accounted for the factors it reasoned supported 

a multiplier when it set the lodestar counsel’s hourly rate].)

Snoeck nevertheless contends the court’s application of 

the downward multiplier undermined the FEHA’s purposes 

and impermissibly shifted fees to defendant. None of the cases 

on which Snoeck relies supports this position. For example, 

in Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 

Cal.5th 918, 949, our supreme court noted the Legislature 

made clear the “ ‘FEHA provides for an award of attorneys’ fees 

to a prevailing plaintiff, but not to a defendant except under 

narrow circumstances,’ in order to ‘reflect[ ] the public policy 

that society should incentivize enforcement of our civil rights 

laws.’ ” In other words, the FEHA provides an incentive for 

counsel to take plaintiffs’ cases by awarding prevailing plaintiffs 

fees and costs and ensuring plaintiffs, if they lose, are not equally 

liable for defendants’ fees and costs, unless their claims are 

frivolous. The cases on which Snoeck relies merely state this 

policy; they do not preclude the reduction of a prevailing FEHA 

plaintiff’s requested attorney fees as somehow impermissibly 

shifting fees. (See Williams v. Chino Valley Independent Fire 

Dist. (2015) 61 Cal.4th 97, 115 (Williams) [holding, as with 

attorney fees, a prevailing FEHA defendant should not be 

awarded costs “unless the court finds the action was objectively 

without foundation when brought, or the plaintiff continued 
37

to litigate after it clearly became so”]; and Pollock, at pp. 950–951

[same with appellate costs and fees].)18 

As the appellate court in Horsford v. Board of Trustees 

of California State University (2005) 132 Cal.App.4th 359, 395

—another case on which Snoeck relies—reiterated, a trial court 

first must base its calculation on the actual hours counsel spent 

on the case, “less those that result from inefficient or duplicative 

use of time. [Citation.] Then the court must adjust the resulting 

fee to fulfill the statutory purpose of bringing ‘the financial 

incentives for attorneys enforcing important constitutional rights

. . . into line with incentives they have to undertake claims for 

which they are paid on a fee-for-service basis.’ ” (Citing Ketchum, 

supra, 24 Cal.4th at pp. 1132–1133.)19 That’s exactly what the 

trial court did here. It reduced counsel’s hours for overbilling 

and duplicative work and then applied a 1.2 multiplier to account 

for Smith’s contingent fee. That the court went on to reduce the 

award to arrive at a reasonable fee based on counsel’s diminished 

18 Snoeck also relies on Flannery v. Prentice (2001) 26 Cal.4th 

572. But there, our high court held the ownership of “unassigned 

attorney fees” awarded under the FEHA vested “in counsel rather 

than the litigant (to the extent fees are not otherwise paid).” (Id.

at pp. 584–585 [noting vesting ownership of FEHA fees in counsel 

in those circumstances “diminish[ed] the risk of noncompensation 

or undercompensation, [would] enhance the likelihood that 

attorneys who undertake FEHA cases will be fully compensated, 

and to that extent [would] enhance the fee provision’s 

effectiveness in encouraging counsel to undertake FEHA 

litigation”].)

19 Snoeck misattributes part of this quoted text as from 

Williams, supra, 61 Cal.4th at pp. 114–115.
38

skill due to his incivility hardly runs afoul of the above policy. 

After all, “[a]s the prevailing party, [Snoeck] was entitled only 

to ‘reasonable attorney fees’ (Gov. Code, § 12965, subd. (b)), 

not reasonable fees plus a windfall.” (Flannery, supra, 61 

Cal.App.4th at p. 647.) Accordingly, the court’s reduction 

of the adjusted lodestar figure by 40 percent did not violate 

the FEHA or undermine its principles. 

5. The court’s reduction of the adjusted lodestar 

by 40 percent does not shock the conscience

As to the amount of that downward adjustment, on this 

record, we are not convinced the court was clearly wrong in 

determining a .4 negative multiplier would “fix” the adjusted 

lodestar figure “at the fair market value for the legal services 

provided” given counsel’s incivility. (Sonoma Land Trust v. 

Thompson (2021) 63 Cal.App.5th 978, 983.) The trial judge was 

the best judge of the value of plaintiff’s counsel’s professional 

services rendered in his court. (See PLCM Group, supra,

22 Cal.4th at p. 1095; Ketchum, supra, 24 Cal.4th at p. 1132.) 

We cannot say the amount awarded here was “ ‘ “so . . . small 

that [it] shocks the conscience and suggests that passion or 

prejudice influenced the determination.” ’ ” (Mikhaeilpoor, 

supra, 48 Cal.App.5th at p. 246.)

By way of comparison, the trial court in Karton reduced 

the lodestar figure by two-thirds—awarding attorney fees for 

200 of 600 hours counsel spent. (Karton, supra, 61 Cal.App.5th 

at p. 743.) The court noted the lack of civility in plaintiffs’ 

counsel’s briefing, describing it as “ ‘replete with attacks on 

defense counsel such as that[:] defense counsel filed “knowingly 

false claims of witness tampering[;]” “her comments were 

frivolous[;]” [and] something was “typical of the improper tactics 
39

employed by defendants and their counsel.” ’ ” (Id. at pp. 741–

742.) Rather than apply a separate multiplier to account for 

that incivility as the court did here, the court in Karton applied 

one overall reduction of almost 67 percent to account for 

several factors, including the simplicity of the issues, plaintiff’s 

overlitigation of a relatively small dispute in part due to the 

plaintiff-attorney’s “personal embroilment in the matter,” and 

the lack of civility in plaintiffs’ briefing. (Id. at pp. 741–743, 746–

747.) In the end, plaintiffs in Karton received only 33 percent

of their attorney fees, whereas Snoeck’s final award constituted

about 57 percent of his claimed lodestar fees. As we cannot 

conclude no reasonable judge would have made the same 

downward adjustment as the trial court did here under the 

circumstances, we find no abuse of discretion.

6. Snoeck’s other arguments are untenable

Snoeck’s remaining arguments are grounded on his 

contention the court reduced his counsel’s attorney fees as a 

sanction or punishment. As we have concluded the court imposed 

the negative multiplier based on a permissible factor—not as 

a sanction or to punish Smith—and did not abuse its discretion 

in setting the negative multiplier at .4, they also fail.

First, as the court did not impermissibly reduce or shift 

fees to punish or sanction Smith or his client, it also did not 

deprive Smith of any purported due process rights in reducing 

his requested attorney fees. Similarly, the court did not violate 

Smith’s First Amendment rights by punishing him for advocating 

his client’s interests. As discussed, the court did not sanction 

Smith’s speech. Rather, the court implicitly found plaintiff’s 

attorney fees were inflated when considering the negative effect 

counsel’s incivility had on his skill in presenting the issues. 
40

(See, e.g., Mikhaeilpoor, supra, 48 Cal.App.5th at p. 246

[reviewing court “infers that a request for fees is inflated when 

the trial court substantially reduces the requested amount”].) 

And, as we discussed, the record supports the trial court’s finding 

that Smith’s uncivil communications and ad hominem attacks 

were not necessary for the zealous representation of his client. 

Finally, as the court did not sanction Smith for misconduct under 

a “ ‘civility rule,’ ” as Snoeck describes it, we need not consider 

whether a civility rule would be void for vagueness.

DISPOSITION

We affirm the trial court’s April 18, 2022 order awarding 

attorney fees. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. HEIDEL, J.

*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.