Filed 10/2/23 Snoeck v. Exak T ime Innovatio ns 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 I NNOVATIONS , INC.

,

Defendant and Respondent

. B 3 21566

Los Angeles County Super. Ct. No. BC708964

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, M ichael P. Linfield

, Judge

. Affirmed

. Barritt Smith Miner, Perry G. Smi th 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 attorn ey 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
civ i lity throughout the entire course of this litigation.” The

court awarded Snoeck fees afte r 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 acti on. 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 counse l 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 impermis sibly 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 (20 0 1) 24 Cal.4th 1122 ( Ketchum ) because civility is an aspect
of an attorney’s skill

, as this District stated in Ka rton v . Ari Design & Constr uction , 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 app ly, in its discretion, a positive or negative multiplier to adjust the lodestar calculation

— a reasonable rate
times a reasonable number of hour s

— to account for various3

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

at p p

. 1131

– 113 4 ; Karton , supra , 61 Cal.App. 5th at p p

. 744

– 745
, 747 .) T he 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. W e thus find no abuse of discretion
and affirm.
FACTS AND PROCEDUR AL BACKGROUND
1. Earlier proceedings
Snoeck sued ExakTime for six claims: f ive claims under
the FEHA

— failure reasonably to accommodate a known

or perceived disability

, failure to engage in a g ood 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 h is 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 $5 8 ,088 in economic damages and $72,000
in non

- economic damages , for a total of $130,088. I n October 2019, t he trial court denied Snoeck’s motions for judgment notwithstanding the verdict (JNOV) and for a new trial.
Snoeck appeal ed

, 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 of fer ) that was greater than the jury awarded. We reversed that order4

concluded the court erred in giving CACI No. 2512, a jury
instruction applicable to mixed

- motive cases, but th e error was not prejudicial. ( Snoeck I

. ) Snoeck petitioned for rehearing,
which we denied. The California Sup reme 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 per emptory 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 Cod e section 12965, former subdivision (b),

now subdivisi on (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. Exa kTime opposed
the motion . It argu ed the lodestar should be reduced based on several grounds , i ncluding, evidence of excessive bil ling ; and/or Snoeck’s attorneys’ “[d]eceptive, improper and unprofessional
conduct

. ” That conduct, ExakTime said, should be considered
in the court’s discretion in “evaluatin g the credibility of the
amount and reasonable ness 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, a t the hearing on Snoeck’s fee motion, Smith mentioned the court’s deni al 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 attorney s had accused ExakTime of “exploiting the C ourt, utilizing ‘underhanded’ tactics, presenting a ‘sham defense,’ and, in general arguing that defense counsel perpetrated a fraud on
the Court. ” It attached several email s 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 the m , Smith accused ExakTime’s counsel of knowing ly 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 “crin g e worthy” and sold the court
“the big lie ” ; referred to defense counsel as having view ed
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 attorney s’ fees should be reduced by the amount charged after the 998 offer, or alternatively reduced to 16.6 percent of the billed hour s, proportional to t heir success

rate

. It also asked the court to apply a 25 percent “ deduction
of Smith’s billings due to thei r patent excessiveness.” 3

3 ExakTime also argued the court should use the same lower

“ insurance rate s” ExakTime’s c ounsel 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.” ( O riginal 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 denia l 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.” ( O riginal ita lics 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 h is counsel.7

grammatical, . . . [non

- ]substantive” changes , which the court ultimately adopted a s its final order

. 5
The trial court found Snoeck’s counsel’s individual hourly

rates

— $750 per hour for Smith and $600 and $5 35 per hour for two other attorneys

— were reasonable

. The court also corrected the requested lodestar for computation errors

. T he c ourt 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
red uced 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 lang uage 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 Exak T im e’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 fou r 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 multip lier 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 $1,144,6 5 9.36. 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 neg ative multiplier to

account for Snoeck’s counsel’s lack of civility. The court’s order reproduce d “some” of the “uncivil langu a ge ” from Smith ’s emails
that ExakTime had attached

. The court included 13 quoted
statements from 12 different emails

— two from J une 2019 before
the verdict

, three from 202 0 after Snoeck filed his appeals from the judgment and order taxing costs

, s even from March 2021 while those consolidated appeals were pending

, and one email

sent in March 2022 months after this court issued its o pinion
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 the9

contemptuous.’ ” The court continued, “The language q uoted
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 profess ion,’ ” 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 Karto n , t he 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 salu tary incentive for counsel
in fee

- shifting cases to know their own low blows may return

to hit them in the pocketbook.’ ” ( Ib id .) Appl ying 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 Rule s 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 ;

w e reproduce only portions of it.
Court: “It’s more than simply that it increases fees.

It de bases 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 kn ow 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 Legisl ature want to do [ sic ] to bring these cases. I’m entitled to that full award of fees11 unless there’s a special circumstance that makes giving that award unjust.”
Court: “An d 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, beca use I’m not, of a particular rule of professional conduct that addresses civility ? ”
Smith again argued defense counsel violated r ule 3.1 of
the Rules of Professional Conduct by presenting “ a mixed

- motive
defense in a case that does no t have a mixed

- motive defense .”
A further colloquy ensued:
C ourt: “You’re arguing, as I understand it, the defense

is either c o mplicit 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 def endant 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 af firm.”
Smith: “Right. Well, the court of appeal actually found

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

- 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 w ith an12 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 C ourt of
A ppeal, which th e C ourt of A ppeal relied on
after [the defense] made a false argument
of law on mixed motive to the trial court. ”
C ourt: “ [ Y ] ou’re arguing

. . . that the defendant made

a false statement to the Co urt of A ppeal?”
Smith: “And this court, yes, multiple times. ”
C ourt: “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 ] ) [ ‘ ] Civili ty 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 viol ated

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, “T he jury
did not find [ Snoeck ] couldn’t work . They could not possibly hav e found that. That’s another misrepresentation of law, in fact,

to the C ourt of A ppeal. 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 the13

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 coul dn’t possibly under law have found? We were supposed to guess that?
And that the C ourt of A ppeal 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 tha t the Court
of Appeal had found error, t he 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 p rejudice, 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?”
C ourt: “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?”
C ourt: “Th at is your argument.”
Smith: “Absolutely. It’s an indisputable argument.”14

C ourt: “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.”
C ourt: “I’m not going to argue with you, counsel.

You’re saying that this court erred, the C ourt of A ppeal erred, everyone erred but you. . . . That’s fine. I’l l 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 tha t a mi x ed

- 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 te ll this court, that the jury did not find [Snoeck] couldn’t work . . . [and] that they misrepresented
the law when the y put mixed motive [ sic ] , and that they ignored
Wallace 7 every sing le time

. . . . ”
At that

, the court replied , “I think you’ve stated thi s 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

. ”
D efense counsel submit ted , and the court adopted its tentative as its final ruling. Smith then asked for “a statement
of decision that explains why the statement s that the court selected are worthy of fee cutting under the authority cited by
the court?” The court noted no sta tement 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
successfu l attempt to cause a court to abuse it[s] authority.” Smith wrote, “Do any of you kn o w 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 ru le 8.252(c) of 18 emails

— including

8 Snoeck included these email s 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 i ts 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

. W e deny the motion. Nevertheless, we consider the November 8 and 29,
20 22 emails, as Snoeck himself included them in his appellant’s appendix

. 5. Snoeck’s belated request s 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 at tached to his motion were not as they ap peared
in the prior record

— counsel had altered the documents by
add ing 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 th is appeal . We deny t his second motion, as well.
DISCUSSION
Snoeck contends the trial court erred in reducing his attorney fees by $457,863 to account for his c ounsel’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 “repe ated 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 communication s 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 s tandard of review
Under the FEHA

, “the court, in its discretion

, may award

t o the pre vailing 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 [citatio n]

,

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 tria l 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.’ ” ( Taylor18

v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1 249 ; 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 t he 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 dete rmine 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 determi ne 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 fe e 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 th e 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, “ t his court must presume that the trial court
considered all factors in reachin g 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, 25 5 ( Mikhaeilpoor ) .) We have “no authority to disturb the trial court’s factua l findings if they are supported by substantial evidence.” ( Ibid. )
2

. The record shows Smith acted uncivilly , and his incivility was un

justifie d Snoeck argues the court impermissibly applied its downward multiplier to punish Smith for violating a “fiction al”

“ ‘civility’ rule.” Incivility may not serve as a basis for attorney discipline by the state bar

— yet

— but al l 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 civ ility 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 a20

Since 2014, t he oath new attorneys of this state must ta ke 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 cou rt 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, t he Office of Professional Competence asked the State Bar Board of Trustees to approve , among other amendments , adding rule 8.4.2 to th e 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 & Attac hment 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 o f Trustees has been asked
to approve , an amendment to California Rules of Court, rule 9.7 requiring all license d attorneys on active status to “ submit

a declaration containing” the civility language added to the21

“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 cour t, 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 “mis representations” to the trial court and this court, engaging in “sleazy” and “cringeworth y ” 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, i n 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 c ivility pledge.” ( See State Bar m em. at p. 10 & Attach ment A, p. 1 .)

11 ExakTime argues the civility requirement , as explained in La s alle, 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 t hat section , however, in discussing the ethi cal obligation to warn opposing counsel before taking a default. ( La s alle, at pp. 1 35
, 137 ; Code Civ. Proc.

, § 583.130, Law Rev ision Com. c oms. [§ 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 c ame across as almost
incredulous t hat his communications with opposing counsel
would be considered uncivil. He claimed not to know how certain

statements we re “worthy of cutting fee s ” 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,” an d “duped” the trial court

, and treated the trial court as an “easy mark.” Sno eck’s current briefing to this court assert s the trial judge engaged in “provocative misconduct” t hat 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.
S noeck nonetheless contends these u nci vil communications were justified

. At the fee hearing

, S noeck 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

em ployment. Smith argued his emails were necessary to “call out” defense counsel’s unethical behavior

— their purported misrepresentations to the court

— and complained the court23

had not addressed their ethical lapses. He argued ExakTime

was being “ rewarded 45 0 ,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 m old

— 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 fa cts of a particular case. One side will be wrong. But that does not mean
the side that i s “wrong” tried to convince the court to adopt a theory it knew was legally erroneous. Moreover, a n employer lawfully may terminat e an employee’s employment due to t he empl o yee’s disability, e.g., where the employee cannot perform his or her job even with a reasonable accommodation or w here the requested accommodation is not reasonable

. ( See Gov. Code, § 12940, subd. (a)(1) ; Hans o n 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 disagree d

. He argued to the
trial court , as he did in his petition for re hearing to this c ou r t
, 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 petition24

for rehearing

. In affirming the judgment, w e had conclude d

—

on the record before us

— the jury could have made this finding. And, to make th is 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.
S noeck 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 a ppeal 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
attack s. 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 accusati on that this court has “sat on” and is “ slow

- playi ng this appeal” in his petition
to transfer filed with the California Suprem e 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 ava ilable 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, a nd all lawyers and judges

– CCP 583.130 has, according to ExakTime, prohibited uncivil emails outside of court with25

defense co unsel did not deny Smith’s accusations neither equates

to a tacit admission that they misrepresented the law or facts

—

or made false statements

— n or compel s a finding that they did

. Defense counsel very well could have decided

— and righ tfully so

— any respons e 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 t heory is understandable. C ertai nly

, attorneys must advocate for their clients ’ position s , 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 person ally attack defense counsel and belittle
the trial court. Smith’s incivility does not reflect persuasive advocacy

. A reasonable attorney w ould 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 advoc ate zealously on Snoeck’s behalf

. 3

. The court had discretion to apply a nega tive 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? ” ( O riginal italics .) Comments like these are not hel pful. 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 c ourt’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 permissibl y 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 hearin g, Snoe ck latched on to this
introduction . As he did below, he essentially argue s 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 w as 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 thu s 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 supervis e 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 l ow 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 engag ing 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 they28

did not respond

. 15 Attacks on ExakTime and its counsel als o 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 demonstrate d “[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 th e m

.

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 min ute” to address whichever statement he thought was most important. Smith addressed three.29

to the quoted statements but provid ed them as examples of Smith’s incivility. Mor eover , 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, w e 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 th is 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 adju st 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 in crease 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.
C ourt s may adjust the lodestar figure upward or dow nward

“ ‘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
lode star 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, and30

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

at p. 74 7.) 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 ca se, 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.” (

Ke tchum, 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 attorney s charging $750 per hour who conduct ed 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. A nd, as we discussed, t he record31

supports the court’s implied findin g that an attorney of similar experience would not have believed making personal attack s 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 th e 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 l odestar 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 re asons. ( 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.” An d, 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 app lying the .4 negative multiplier thus was clear and

, as we discussed, it was valid. ( Cf. Warren , at p p. 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

— and32

other permissible reasons the court gave to arrive at a reasonable fee].) Snoeck notes that, after discussing the Ketchum fac tors 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 addre ss 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 met hodical

. 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 bi lling, 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 m aking those calculations, t he 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 mult i plier

— 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 expe rience.” The court thus had not adjusted the lodestar to account for the33

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 multiplie r 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 e ntitled 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 t heir attorney fees as punishment for

a party’s “litigation misconduct.” ( Id. at p p

. 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 view s on the merits of t he 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, becaus e 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 pro perly followed the lodestar adjustment method to arrive at a reasonable attorney fee award given
the relevant case

- specific factors that weighed in favor of both34

augmenting and diminishing the lodestar figure. We do not read the court’s statements about S mith’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. J

PMorgan 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 blemis h the dignity of the profession they have taken an oath to uphold.” ( Id. at p p . 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 cou rt 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 submi tted 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 lodesta r; we presume he recognized the total hours he s pent 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 reduc tion
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 d oing 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 o f 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 at torneys 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 p p

. 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 plaint iff’s fees under the circumstances]; Flannery

v. California Highway Patrol (1998) 61 Cal.App.4 th 629, 647 ( Flannery ) [explaining trial court’s exercise of discretion in awarding attorney fees under the FEHA “ must be based on36

a proper utilization of the lod estar 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 f actors 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 support s 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

cou nsel 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

at torney 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 continued37

to litigate after it clearly became so”]; and Pollock , at pp. 95 0

– 95 1 [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 en forcing 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 he re. 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 t here , our high court held the ownership of “unassigned attorney fees” awarded under the FEHA vested “i n 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 t he 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 a s 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.4 th 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. 1 095 ; Ketchum, s upra , 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 briefin g, 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 tactics39

employed by defenda nts 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, includi ng 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. 74 1

– 743, 746

– 747.) In th e end, plaintiffs in Karton received only 33 percent of their attorney fees

, whereas Snoeck ’s final award constituted about 57 percent of hi s 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 punishmen t. 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, a s t he court did not imp ermissibl y 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. S imilarly , the court did not violate Smith’s First Amendment rights by pu nishing him for advocating
his client’s interests. As discussed, the court did not sanction Smith’s speech. Rather, t he court implicitly found plaintiff’s attorney fees were inflated when considering the negative effect
counsel’s incivility had on his sk ill in presenting the issues.40

(See, e.g., Mikhaeilp oor , supra , 48 Cal.App.5 th at p . 246 [ reviewing court “infers that a request for fees is inflated when
the t rial court substantially reduces the requested amount” ].) And, as we discussed, the record supp orts 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 d escribes it, we need not consider whether a civility rule would be void for vagueness.
D ISPOSITION 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 OFF ICIAL 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

.