Filed 4/25/23 Thomas v. City of Los Angeles

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

MALCOLM THOMAS, 

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and Appellant.

 B305051

 (c/w B308622)

 (Los Angeles County

 Super. Ct. No. BC416182)

APPEALS from a judgment and an order of the Superior 

Court of Los Angeles County. Victor E. Chavez, Judge. Affirmed.

Shegerian & Associates, Inc., Carney R. Shegerian and Jill 

McDonell for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Deputy City Attorney, Scott Marcus, Chief Assistant City 

Attorney, Blithe S. Bock, Managing Assistant City Attorney, and 

Michael M. Walsh, Deputy City Attorney, for Defendant and 

Appellant.

______________________________
2

Plaintiff Malcolm Thomas (Thomas), a former employee of 

the Los Angeles Police Department (LAPD), brought a Fair 

Employment and Housing Act (FEHA) action against defendant

City of Los Angeles (the City), alleging six causes of action. The 

matter was originally tried in July 2010, with a defense verdict 

on all causes of action except the claim for disability 

discrimination; the jury found in favor of Thomas on that cause of 

action. The City successfully appealed. On December 6, 2012, we 

reversed the judgment in favor of Thomas and remanded the 

matter for a new trial on Thomas’s disability discrimination 

claim. In July 2019, the matter was retried. The jury again 

found in favor of Thomas, awarding him $1,014,000. The trial 

court later awarded Thomas attorney fees in the amount of 

$2,311,662.50 and costs of $272,270.01.

On appeal, the City argues: (1) Because Thomas was not a 

qualified person, he failed to present a prima facie disability 

discrimination case; (2) Jury misconduct requires a new trial; and 

(3) The trial court awarded Thomas excessive attorney fees.

We affirm.1

1

Thomas also filed a protective cross-appeal. According to 

his appellate brief: “In this protective Cross-Appeal, Thomas 

asks that the Court reverse the Trial Court’s October 3, 2018, 

Order, granting [the City’s] Motion to Dismiss claims under 

Thomas’s 2012 complaint pursuant to the three-year and fiveyear statutes, only if this Court reverses the judgment pursuant 

to [the City’s] appeal.” We presume Thomas is referring to the 

trial court’s October 10, 2018, order; on October 3, 2018, the trial 

court took the City’s motion to dismiss under submission. In any 

event, since we are affirming the judgment, we need not reach 

the issues raised in the cross-appeal.
3

FACTUAL2 BACKGROUND

I. Thomas’s employment with LAPD

Thomas began working as an LAPD police officer in May 

1997, then worked for the District Attorney’s Office, returning in 

February 2007 and transferring to the training division in 

September 2007. He trained extensively and worked as an 

instructor in ARCON/PT,3 assisting primary instructors teaching 

recruits and teaching classes to in-service officers getting 

recertified.

II. Thomas injures his knee

On May 9, 2008, during a training session, Thomas tore his 

left knee medial meniscus and injured his back.

On Monday, May 12, 2008, Thomas provided a doctor’s note 

to his supervisor, Sergeant Christopher Costley (Costley), 

informing LAPD that Thomas’s physical restrictions included no 

squatting, kneeling, running, jumping and limited use of knee.4

2 We review the record in the light most favorable to the 

judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Because 

the City only challenges one element of Thomas’s discrimination 

claim (whether he was a qualified individual), we limit our 

discussion of the detailed facts to those pertaining to that 

contention.

3

Arrest and Control/Physical Training unit.

4

Part of Thomas’s disability discrimination claim was that 

Costley disregarded these restrictions.
4

III. Thomas undergoes knee surgery and then returns to work 

with restrictions

A. Surgery

On June 30, 2008, Thomas underwent knee surgery, which 

required months of recovery.

B. LAPD policies regarding returning injured officers to 

work

The LAPD has two statuses for officers returning from 

injury, temporary and permanent. If a doctor places temporary 

medical restrictions on an LAPD officer, the officer can work if it 

does not violate his restrictions. The LAPD has an obligation to 

return injured workers back to work without violating 

restrictions. “There’s a lot of inside jobs that the department has 

to accommodate people who are light duty.” For example, 

Captain Michelle M. Veenstra (Veenstra) testified that Thomas 

could have worked with restrictions in her office. From 2008 to 

2009, the LAPD had a number of officers working day-to-day 

desk jobs, which included Police Officer II (Thomas’s position).

Former Assistant LAPD Chief Sandy Jo MacArthur 

(MacArthur) testified that returning to active duty, not full duty,

is the LAPD’s concern regarding injured officers; LAPD would 

like them to come back and actively participate in light duty. 

Officers are not expected to perform like full duty officers when 

they are on light duty.

C. Thomas’s return to work; Costley’s failure to comply

with LAPD policy and the medical restrictions

Thomas spoke with Costley twice postsurgery while on 

leave. First, he called and said he would be returning with strict 

restrictions; Costley said to get longer time off from his doctor 

because there was not much to do “‘unless you’re full-go.’” Later, 
5

when Thomas reported that he still had strict restrictions and 

provided LAPD with a doctor’s note detailing the restrictions, 

Costley responded, “‘We’ll put you on the fourth floor,’” the 

administrative floor.

In the October 13, 2008, duty certificate that Costley 

created using Thomas’s doctor’s note, Costley wrote, “[s]edentary 

work only” after returning from surgery.

Thomas returned to work on October 15, 2008. But, he

never worked fourth floor administrative, and his work was not 

sedentary. Instead, he worked his normal duties as an assistant 

instructor, helping teach recruit classes and demonstrating 

techniques, but not going on runs. Thomas discussed his 

restrictions with Costley and requested projects that would be 

sedentary; Costley said, “‘I’ll let you know.’”

D. Thomas notifies Veenstra of discrimination and/or 

harassment

Thomas felt that Costley was not recognizing his 

restrictions by not placing him on the fourth floor and expecting 

him “to go out there with the recruits.” Thus, on November 10, 

2008, Thomas notified Veenstra of disability discrimination 

and/or harassment.

E. Thomas gives Costley a November 11, 2008, doctor’s 

note; he is placed on medical leave (Nov. 12, 2008)

On November 11, 2008, Thomas obtained a doctor’s note 

from Dr. Emmett Cox II, an orthopedic surgeon and the agreed 

medical examiner, that returned Thomas to work on modified 

duty. The following day, he gave that note to Costley; Costley 

responded angrily. He told Thomas: “‘Veenstra told me to give 

you a project,’” his first time offering administrative duties to 

Thomas. Costley was “visibly upset” at roll call and looked at 
6

Thomas, stating, “[W]e’re all adults here. If you have a problem 

fix it yourself.’” After roll call, no one spoke to Thomas; they 

turned their backs on him, which was not normal.

After work that day, Thomas went to his primary care 

doctor, Dr. Amanuel Sima, because he was anxious, headachy, 

and suffering from irregular breathing. He was placed on leave 

until December 26, 2008, for multiple medical conditions.

On November 13, 2008, Costley received Dr. Sima’s note.

IV. Meanwhile, Thomas begins mental health treatment

From October 2008 through January 2009, Thomas had 

varying levels of depression.

A. Dr. Adam Herdina

Starting on October 30, 2008, Thomas began obtaining 

treatment from Dr. Adam Herdina, a police psychologist.

Dr. Herdina saw improvement in February/March of 2009, 

which he attributed to Thomas being away from work. At no 

time did he opine that Thomas’s police powers should be 

removed.

B. Dr. Rodney D. Collins

On November 24, 2008, psychiatrist Dr. Collins began 

treating Thomas. On January 29, 2009, Dr. Collins issued a stay 

away order to the LAPD, advising Thomas’s supervisors and the

LAPD as a whole to cease contact with Thomas.

After 60 days, Thomas improved, so on March 28, 2009, 

Dr. Collins issued a release to return to work.5 Dr. Collins did 

not believe that Thomas’s ability to be a police officer was 

restricted at that time.

5 His office’s standard practice is to fax these notes to the

employer.
7

Dr. Collins verbally informed Thomas of this release within 

a few days of its transmittal to Thomas’s employer.

After his conversation with Dr. Collins, Thomas informed

Sarah Richardson (Richardson), an investigator with the 

Inspector General’s Office, that his “psych” had cleared him. On 

April 24, 2009, Richardson e-mailed Detective Christopher Leo 

Casey (Casey) and then-Sergeant Timothy Nordquist (Nordquist) 

at Internal Affairs that Thomas “stated that he had been cleared 

by the psychologist.”

Casey explained that even though Thomas had been 

“cleared,” that assessment had to go through the LAPD “Medical 

Liaison” so that LAPD could trust and verify that the officer 

could return to work. But, Casey did nothing in response and

was unaware if LAPD followed up on it.

V. LAPD’s investigation into Thomas’s discrimination complaint

Eventually, the LAPD launched an investigation into 

Thomas’s discrimination complaint. Nordquist led the 

investigation and submitted his report to the adjudicator, 

Captain Don Schwartzer, who identified no misconduct.

VI. Thomas’s police powers are suspended

A. Suspension of police powers

On April 6, 2009, Thomas’s police powers were removed.

6 

Veenstra notified Thomas: “Your peace officer status shall 

remain suspended until you are returned to full and active 

6

At trial, Nordquist testified that the removal of police 

powers including badge and gun constitutes an adverse 

employment action.
8

duty,”7 directing him to relinquish his duty weapon and 

identification, “[b]ased on your medical condition, the 

Department hereby withdraws your authority to act in the 

capacity as a peace officer.”

VII. Thomas is cleared to return to work

A. Conflicting evidence regarding when Thomas was 

cleared to return to work

There was conflicting evidence regarding when Thomas 

was cleared to return to work. On July 2, 2008, Dr. Ronald E. 

Glousman, Thomas’s surgeon, notified LAPD that Thomas was 

“temporarily totally disabled for 6 weeks.” But on July 31, 2008, 

Dr. Glousman reported that Thomas could return to work that 

date with certain physical restrictions.

A September 8, 2008, treatment and disability information 

form completed for Thomas’s workers’ compensation claim

indicated that he could return to work on restricted duty only 

effective that date. But, another treatment and disability

information form, also dated September 8, 2008, indicated that 

Thomas was temporarily totally disabled until October 13, 2008.

As set forth above, Dr. Cox returned Thomas to work on 

modified duty on November 11, 2008. In other words, as Dr. Cox

explained at trial, Thomas could have performed his job with 

7 MacArthur testified that the letter’s reference to “full duty” 

was not necessary and an oversight because officers return and 

work light duty; MacArthur would not have put “full duty” in the 

letter because LAPD’s concern is active duty, even if light. 

Although she signed it, Veenstra could not explain why the letter 

referenced full duty, because Thomas did not have to come back 

full duty.
9

accommodations; he could be a police officer who performed 

administrative or sedentary work. While Dr. Cox testified that 

Thomas could not return to work as a patrolman, he also attested 

that Thomas could return to a police position that did not involve 

hand-to-hand combat.

Dr. Collins issued a release for Thomas to return to work 

on March 28, 2009. Dr. Sima cleared Thomas to return to work 

on May 24, 2009.

Dr. Douglas Jackson, an orthopedic surgeon, signed a 

workers’ compensation document authorizing Thomas to return 

to work as a police officer as of August 14, 2009.

Dr. Robert Wilson, an orthopedic surgeon, offered expert 

testimony that by 2009, Thomas would have been cleared to 

return to full activities.

Thomas also saw Dr. Yuan in 2009. In May, Dr. Yuan 

placed him off work for six weeks. On August 27, he indicated

that Thomas was to remain off work for four weeks because of 

back pain.

Derwin Henderson (Henderson) of the return to work 

section8 opined that Thomas’s restrictions did not allow him to 

return to work until 2016.

8

The return to work section finds reasonable 

accommodations for employees with permanent and temporary 

work restrictions. Donna Baylosis (Baylosis) testified that the 

return to work section does not handle situations where an officer 

brings his supervisor a light duty notice and the officer can be 

accommodated by the division. However, if the training division 

could not accommodate a light duty, the return to work section 

would step in and assist.
10

B. Conflicting evidence regarding whether Thomas had to 

return to work full duty

Thomas believed that he had been cleared to work with 

restrictions, i.e., light duty. But, Thomas understood from the 

LAPD that he was required to return to full duty, making light 

duty not an option. After all, before he returned to work after his 

surgery, Costley told him not to return “‘unless you’re full-go.’” 

Veenstra’s April 6, 2009, letter also said so. And, two employees 

with the return to work section, Baylosis and Henderson, advised

Thomas that he was required to return to full duty. Thomas was 

never told that he did not have to return to work full duty in 

2009.

According to Veenstra, removal of his police powers did not 

prevent Thomas from returning to work. She testified: “[A]ll he

had to do was come back with a doctor’s note putting him back to 

full duty—coming back, and . . . I have to correct. [¶] He doesn’t 

have to come back full duty. He could come back light duty like 

he did prior. [¶] . . . [T]hen at that time everything would be 

reevaluated.” In fact, LAPD had officers who worked in 

administration. And officers in the training division do not make 

arrests.

PROCEDURAL BACKGROUND

I. The complaint; first trial; appeal; remand for new trial

In June 2009, Thomas initiated this lawsuit against the

City, alleging claims for (1) workplace harassment in violation of 

FEHA; (2) retaliation in violation of FEHA; (3) failure to 

investigate in violation of FEHA; (4) disability, racial, and sexual 

orientation discrimination in violation of FEHA; (5) retaliation in 

violation of statutory policy; and (6) declaratory and injunctive 

relief.
11

The matter proceeded to a jury trial in July 2010, with the 

jury returning a verdict in favor of Thomas on the sole claim of 

disability discrimination. The City successfully appealed. 

Finding prejudicial error in the trial court’s jury instructions, we 

reversed the judgment and remanded the matter for a new trial

on that lone cause of action.

9 (Thomas v. City of Los Angeles

(Dec. 6, 2012, B229265) [nonpub. opn.].)

II. Three new trials on the remanded disability discrimination 

claim

In October 2014, the trial court retried the remanded 

disability discrimination cause of action. A mistrial occurred.

Thereafter, a new trial on the remanded disability 

discrimination claim commenced in April 2015, but the jury could 

not reach a verdict.

The third retrial began in July 2019.10

III. Jury instructions

As pertains to the issues in this appeal, the jury was given 

joint instructions as filed by the parties. These instructions 

included CACI No. 2543, which defines “‘Essential Job Duties’”

9 While the City’s appeal was pending, Thomas initiated a 

second lawsuit against the City in 2012 (Thomas II). The parties 

later stipulated to dismiss Thomas II without prejudice, with 

Thomas filing a supplemental complaint in the instant action, 

adding each of the causes of action in Thomas II to the disability 

discrimination claim. On October 10, 2018, the trial court 

dismissed those claims that were originally pleaded in Thomas II. 

Thus, the only claim that went to trial was Thomas’s original

cause of action for disability discrimination.

10 After Thomas rested, the City moved for a directed verdict. 

That motion was denied.
12

and specifically references Government Code sections 12926, 

subdivision (f), and 12940, subdivision (a)(1). The jury was also

given the following special defense instruction: “The City has no 

obligation to accommodate Plaintiff if he was totally disabled and

could not perform all of the essential functions required to be a

police officer.”

IV. Jury

On July 25, 2019, 15 jurors were sworn in. On August 15, 

2019, alternate jurors were chosen after both parties rested, after 

closing arguments, and after the joint jury instructions were 

read. Alternates were randomly selected by drawing “because, 

obviously, 15 can’t make the decision that 12 are required to 

make.” The trial court erroneously informed that “Alternate 

Number 1 will be–Juror Number 1, Mr. Bindoy.” However, 

Mr. Bindoy was Juror No. 2; Mr. Hernandez was Juror No. 1.

V. Jury verdict

Ultimately, the jury returned a verdict for Thomas on

August 20, 2019, awarding him $714,000 for past economic loss, 

$300,000 for past noneconomic loss, and no future damages, for a 

total verdict of $1,014,000.

VI. Jury poll and new deliberations/verdict

The City requested a poll on Question No. 611 of the special

verdict. At that point, the parties learned that Mr. Hernandez 

11 Question No. 6 asked the jury whether the City would have 

subjected Thomas to an adverse employment action had the City 

not been substantially motivated by his actual or perceived 

disability. The City does not explain why the answer to this 

question was so important, given the jury’s findings in response 

to Question Nos. 1 through 5 that the City did discriminate 

against Thomas.
13

(Juror No. 1) had believed himself to be an alternate and not 

voted, while Mr. Bindoy (Juror No. 2) had voted.

The trial court corrected the roster of jurors and sent the

jury back for additional deliberations and a new vote. 

Specifically it told the jury: “You have to go back into the jury 

room. Ignore the vote—this vote. Start all over again and take a 

vote again. [¶] Hear whatever Mr. Hernandez has to say to

speak to the issues. [¶] I ask you to please return and do that.” 

It did not explicitly instruct them to disregard the improper 

deliberations.

After the jury departed, the trial court and counsel 

discussed how this confusion could have occurred. The trial court 

asked the clerk to confirm the three alternates with the jury. 

Identifying Juror Nos. 2, 10, and 16, the trial court told the clerk: 

“Those should be jurors that shouldn’t be deliberating, and they 

should start their deliberations all over again.” The clerk then 

located blank verdict forms to give to the jurors. The trial court 

confirmed with counsel that this proceeding was satisfactory; 

defense counsel did not object.

After approximately 30 minutes, the jury returned with the 

identical verdict.

VII. The City’s motion for a new trial

A. Motion and opposition

On December 23, 2019, the City moved for a new trial on 

the grounds of juror misconduct. It argued that “a non-juror 

participated in the deliberation process from its inception and for 

over two days as if he was a designated juror and then voted on 

the Special Verdict which was read in open court.” According to 

the City, the alleged jury misconduct was pervasive “since it 

invalidated the entire deliberation over more than two days—and
14

therefore went to the very heart of the deliberation process.” And 

the trial court did not provide a cure. “The only thing the jury 

was told here was to ignore the previous vote on the special 

verdict when reconvening, and no mention was made of the two

days of invalid deliberation. [Citation.] In fact, the jury should

have been required to disregard all previous deliberations—

which were inherently improper and legally invalid—and 

anything that the misplaced alternate may have said during 

those deliberations. [Citations.] That did not happen here.”

The City added: “It is not even clear from the court’s 

comments that the jury was instructed to begin deliberations 

over from the beginning. The court’s comment that the jury 

should ‘start all over again and take a vote again’ is ambiguous, 

particularly since the jury was not instructed to disregard any of 

the prior invalid deliberations. [Citation.] A fair reading of this 

comment, followed by an instruction to let the missing juror 

speak, would be to let him speak and then vote again, with full 

consideration of the improper deliberations. Given the fast 

turnaround by the jury after restarting deliberations (about 

30 minutes), particularly given the length of the special verdict 

and that the previous deliberations took over two days, it appears

that the jury did rely on the improper deliberations.”

Thomas opposed the motion.

B. Trial court order

On February 21, 2020, the trial court denied the City’s 

motion, finding that the jurors’ conduct did not cause prejudice or

result in a miscarriage of justice. The trial court first found that 

the City waived any challenge to the verdict on the grounds of 

juror misconduct. Defense “counsel knew about the misconduct 

involving the alternate juror deliberating with the other jurors 
15

before the verdict. There is no evidence that he promptly 

objected after learning about the misconduct. Further, [defense] 

counsel could have immediately objected or discussed his 

concerns during the thirty minutes when the jury was absent and 

deliberating. Since the [City] did not make any prompt objection

after learning about the alleged juror misconduct, the [City] 

waived this ground for a new trial.”

Setting that procedural obstacle aside, the trial court 

turned to the question of whether there was juror misconduct and 

a resulting miscarriage of justice. It found “that there was jury

misconduct because the jurors did not follow the court’s 

instructions.” In particular, “the jury did not follow the Court’s 

instructions regarding which jurors should participate in the 

deliberations.” But, “this misconduct was not prejudicial and did 

not result in a miscarriage of justice.” “[W]hen the Court 

discovered that the alternate juror had deliberated and voted 

with the other jurors, the Court promptly corrected the

misconduct by ordering the jurors to ignore the prior vote and to 

vote again. As a result, any prejudice created by the alternate 

juror’s misconduct was not prejudicial.”

Furthermore, there was no “showing that it was reasonably

probable that the jury would have reached a different verdict.” 

The fact that the second deliberation was shorter than the first 

deliberation was “not enough to show [that] there was jury 

misconduct.”

VIII. City’s motion for judgment notwithstanding the verdict 

(JNOV)

On December 23, 2019, the City filed its JNOV motion. It 

argued, inter alia, that “the evidence introduced at trial 
16

established that [Thomas] was not a qualified individual and 

could not perform the essential functions of a police officer.”

Thomas opposed the City’s motion.

On February 21, 2020, the trial court denied the City’s 

motion. After summarizing the applicable law, the trial court 

noted: “First, the [City’s] burden of persuasion is to specify the 

evidence received by the jury that identified the essential 

functions of [Thomas’s] job. The [City] must specify the evidence 

that identifies the essential functions because legal authority

cannot define those essential functions. Each job, even those 

with the same employer or category of employer, differs and, as a 

result, the [City] must cite to the record to identify these 

essential functions.

“Second, if the [City] meets its burden of showing that the

evidence identified the essential functions, the [City] must then 

show that the jury received evidence that [Thomas] was not 

qualified to perform those identified essential functions and that 

there was no substantial evidence that [Thomas] was qualified. 

This is necessary to show that a motion for [JNOV] should be

granted on the ground that there was no evidence supporting the 

jury’s decision.

“First, the [City] does not specify the evidence in the record 

that identified the essential functions of [Thomas’s] position as a 

police officer. The [City] directs the Court to no evidence 

establishing the essential functions of [Thomas’s] job. In the 

reply papers, the [City] argues that the essential functions of a 

police officer involve making forcible arrests and controlling and 

transporting suspects [citation]. However, it is improper to raise 

this argument for the first time in the reply and, as a result, the 

[City] cannot rely on this to meet its burden. [Citation.]
17

“Instead, the [City] attempts to meet its burden by focusing 

on the evidence that [Thomas] was unable to perform the 

essential functions because he ‘was off work and totally disabled’

[citation]. The [City] claims that, since the evidence shows that

[Thomas] was unable to return to work, he was not qualified to 

serve as a police officer and, as a result, there can be no 

discrimination when it removed its police powers.” In other 

words, the City’s “argument is premised on showing that 

[Thomas] was totally disabled because he was not released to 

return to work.”

The trial court went on to set forth some of the evidence 

supporting the inference that Thomas was qualified because he 

had been cleared to work, including Dr. Collins’s note, Dr. Sima’s 

note, and the e-mail exchange between two police officers 

confirming that Thomas had been cleared to return to work.

The trial court concluded: “When viewing the evidence in 

the light most favorable to [Thomas], this shows that there was 

substantial evidence to support the jury’s finding . . . that 

[Thomas] was able to perform the essential job duties, i.e., that 

[Thomas] was a qualified individual. As a result, this is not 

grounds to grant a [JNOV] in [the City’s] favor.”

IX. Thomas’s motion for attorney fees

A. Motion and opposition

On February 10, 2020, Thomas moved for attorney fees 

pursuant to Government Code section 12965, subdivision (b). He 

sought $3,081,273 and a multiplier of 1.75.

The City opposed Thomas’s motion. In support, the City 

offered an expert declaration from Gerald G. Knapton (Knapton).

He opined that Thomas’s counsel “should not be allowed any fee 

recovery at this stage of the proceedings because they have not 
18

explained the circumstances such that . . . the total fees they seek 

to have awarded to them would not be ‘unconscionable’ and in 

violation of the Rules of Professional Conduct, Rule 1.5.” 

“However, if the Court finds that the conditions necessary for an 

award are satisfied, then it is my opinion that reasonable fees are 

no more than $357,089.45.”

B. Trial court order

In a 20-page order, the trial court granted Thomas’s motion 

for attorney fees. Its detailed order sets forth the legal

standards, including a summary of the lodestar method. 

Thereafter, it assessed Thomas’s motion, finding that he “met his 

burden of demonstrating that the hourly rates sought for his 

attorneys [were] reasonable.” However, it reduced the number of 

hours requested, ultimately awarding a reduced amount of 

$1,849,330.

In so ruling, the trial court systematically addressed each 

of the City’s challenges. For example, the trial court rejected the 

City’s attempt to characterize Thomas’s success as moderate, 

specifically noting that after 10 years of litigation, Thomas was 

awarded $1,014,000 in compensation for the City discriminating 

against him. “To qualify [Thomas’s] success as moderate is 

fallacious.”

After establishing the lodestar amount, the trial court 

turned its attention to whether a multiplier should be applied. 

After summarizing and analyzing the relevant factors to 

determine whether a multiplier was appropriate, the trial court

found that a 1.25 multiplier was appropriate. “The multiplier 

reflects the fact that counsel undertook a considerable amount of 

risk in litigating [Thomas’s] case and their ultimate success in 
19

doing so. A modest enhancement of 1.25 times the lodestar 

amount will give effect to the purposes underlying the FEHA.”

Ultimately, the trial court awarded Thomas a total of 

$2,311,662.50.

X. Appeal

The City’s timely appeal from the judgment, the posttrial 

motions, and the costs award ensued.

DISCUSSION

I. Thomas presented a prima facie case of disability 

discrimination

The City challenges the judgment of disability 

discrimination against it in two manners: (1) The trial court’s 

order denying its JNOV motion; and (2) The jury verdict.

A. Standards of review

The parties dispute the appropriate standard of review. 

According to the City, whether Thomas presented a prima facie 

case is a question of law.

“Recent decisional law is replete with the statement that in 

order to establish a prima facie case for [disability] 

discrimination . . . , the plaintiff must prove he was qualified for 

the position. [Citations.]” (Quinn v. City of Los Angeles (2000) 

84 Cal.App.4th 472, 480, italics added (Quinn).)

“‘Care must be taken in distinguishing between the “prima 

facie” elements of a claim for employment discrimination and the 

“essential” elements of the same case which the jury must decide. 

[¶] ‘Whether a plaintiff has met his or her prima facie burden 

and whether or not the defendant has rebutted the plaintiff’s 

prima facie showing, are questions of law for the trial court and

not questions of fact for the jury. [¶] ‘The prima facie burden

that rests upon plaintiff will depend on the facts. For example, if 
20

the adverse decision is a failure to hire or promote, the plaintiff

has as part of his or her prima facie case, the burden of producing

evidence that he or she was qualified for the employment or the 

promotion.’” (Quinn, supra, 84 Cal.App.4th at p. 481.)

As applied to the issues in the instant case, in order to 

establish a prima facie case, Thomas was required to present 

evidence that he was qualified to perform the essential functions 

of a police officer. If he failed to present that evidence, then he 

would not have satisfied his burden of presenting a prima facie 

case as a matter of law. However, if he presented evidence that 

he was qualified, the question becomes whether that evidence is 

sufficient. We review sufficiency of the evidence claims for 

substantial evidence if the facts are disputed and de novo if the 

facts are undisputed. (Ellins v. City of Sierra Madre (2016) 

244 Cal.App.4th 445, 452.)

“‘Where findings of fact are challenged on a civil appeal, we 

are bound by the “elementary, but often overlooked principle of

law, that . . . the power of an appellate court begins and ends 

with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted,” to support the findings 

below. [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative 

Services USA, Inc. (2020) 46 Cal.App.5th 1007, 1015.)

“‘“In applying this standard of review, we ‘view the 

evidence in the light most favorable to the prevailing party, 

giving it the benefit of every reasonable inference and resolving 

all conflicts in its favor . . . .’ [Citation.]” [Citation.] 

“‘Substantial evidence’ is evidence of ponderable legal 

significance, evidence that is reasonable, credible and of solid 

value.” [Citation.] We do not reweigh evidence or reassess the 

credibility of witnesses. [Citation.] We are “not a second trier of 
21

fact.” [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative 

Services USA, Inc., supra, 46 Cal.App.5th at p. 1015.)

That said, “‘[q]uestions of statutory interpretation, and the

applicability of a statutory standard to undisputed facts, present 

questions of law, which [we review] de novo.” (Lui v. City and

County of San Francisco (2012) 211 Cal.App.4th 962, 969 (Lui).)

“On appeal from the denial of a JNOV motion, an appellate 

court must review the record de novo and make an independent 

determination whether there is any substantial evidence to 

support the jury’s findings. [Citations.]” (Hirst v. City of 

Oceanside (2015) 236 Cal.App.4th 774, 782.) In other words, “[a] 

motion for [JNOV] may be granted only if it appears from the

evidence, viewed in the light most favorable to the party securing

the verdict, that there is no substantial evidence in support. 

[Citation.] [¶] . . . As in the trial court, the standard of review is 

whether any substantial evidence—contradicted or 

uncontradicted—supports the jury’s conclusion. [Citations.]” 

(Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 

62, 68.)

B. Relevant law

To establish a prima facie case of physical disability 

discrimination under FEHA, the employee must demonstrate 

that he is disabled and otherwise qualified to do the job and was 

subjected to an adverse employment action because of such

disability. (King v. United Parcel Service, Inc. (2007) 

152 Cal.App.4th 426, 432–433, fn. 2.) The employee must 

establish that he is a “qualified individual,” i.e., an employee who 

can perform the essential functions of the job with or without 

reasonable accommodation. (Green v. State of California (2007) 

42 Cal.4th 254, 260–261.)
22

Government Code section 12926, subdivision (f), defines the 

phrase “‘Essential functions’”: “‘Essential functions’ means the 

fundamental job duties of the employment position the individual 

with a disability holds or desires. ‘Essential functions’ does not 

include the marginal functions of the position. [¶] (1) A job 

function may be considered essential for any of several reasons, 

including, but not limited to, any one or more of the following: [¶] 

(A) The function may be essential because the reason the position 

exists is to perform that function. [¶] (B) The function may be 

essential because of the limited number of employees available 

among whom the performance of that job function can be 

distributed. [¶] (C) The function may be highly specialized 

. . . . [¶] (2) Evidence of whether a particular function is 

essential includes, but is not limited to the following: [¶] (A) The

employer’s judgment as to which functions are essential. [¶] . . .

[¶] (C) The amount of time spent on the job performing the 

function. [¶] (D) The consequences of not requiring the 

incumbent to perform the function. [¶] . . . [¶] (G) The current 

work experience of incumbents in similar jobs.” (Gov. Code, 

§ 12926, subd. (f).)

“‘Whether a function is essential is evaluated on a case-bycase basis by examining a number of factors.’” (D’Angelo v. 

Conagra Foods, Inc. (11th Cir. 2005) 422 F.3d 1220, 1230.) This 

determination is “highly fact specific.” (Hoskins v. Oakland 

County Sheriff’s Dept. (6th Cir. 2000) 227 F.3d 719, 726; see also 

Lui, supra, 211 Cal.App.4th at p. 971.)

C. Analysis

On appeal, the City does not challenge the jury’s findings 

that Thomas suffered a disability and that he suffered an adverse 

employment action. Rather, the only issue is whether Thomas 
23

was a qualified individual who could perform the essential 

functions of his job. In raising this challenge, the City seems to

be making a factual argument (i.e., there is no evidence that 

Thomas could perform the essential functions of his job) and a 

legal argument (i.e., pursuant to statute and case law, Thomas 

could not perform the essential functions of a police officer as a 

matter of law). We address each in turn.

1. Factual argument

As aptly noted by the trial court in its order denying the 

City’s JNOV motion, Thomas presented substantial evidence that 

he was a qualified individual able to perform the essential 

functions of his job. There was evidence presented at trial that 

Thomas was cleared to return to work. Dr. Collins and Dr. Sima 

both cleared Thomas to return to work in Spring 2009. From 

Dr. Wilson’s expert testimony, the jury could reasonably infer

that Thomas could have returned to work. And, Dr. Jackson, an 

orthopedic surgeon, signed a workers’ compensation document 

authorizing Thomas to return to work as a police officer as of 

August 14, 2009. Even Dr. Cox confirmed that Thomas could 

have worked modified duty as an officer in a primarily sedentary 

position.

Urging us to conclude otherwise, the City directs us to 

contrary testimony from Dr. Cox12 and a note from Dr. Yuan, who 

12 The jury was properly instructed that it could believe all or 

part of an expert and a layperson’s opinion. It was also told that 

it could “believe all, part, or none of a witness’s testimony.” (See 

People v. Langley (1974) 41 Cal.App.3d 339, 348 [“the trier of fact

may reject a part of the testimony of a witness while believing 

other portions of his testimony”].)
24

did not testify at trial, that Thomas was permanently disabled 

and unable to perform the duties of a police officer. At best, the

City offers evidence that conflicts from the evidence proffered by 

Thomas. And it is well-settled that a conflict in the evidence does 

not render it insubstantial. (See Stephens v. County of Tulare

(2006) 38 Cal.4th 793, 804; People v. Lawson (1952) 

114 Cal.App.2d 217, 219 [“it is not the province of this court to 

weigh conflicting evidence”].)

And there was evidence of the essential functions of his job, 

functions that Thomas could perform.

13 There was ample 

testimony that there were light duty options for police officers. 

There was an administrative floor that Costley could have 

assigned him to. He could have done projects that did not violate 

his restrictions. He could have worked in Veenstra’s office. (See, 

e.g., Lui, supra, 211 Cal.App.4th at p. 973 [noting that not all 

police officer positions exist for the purpose of performing 

strenuous duties].)

Not surprisingly, the City directs us to contrary evidence, 

including MacArthur’s testimony that, among other things, a 

police officer must be able to make forcible arrests, control 

suspects, and “transport, book, and handcuff.” But, as Veenstra 

testified, Thomas worked in the ARCON/PT unit; he did not have 

to make arrests. Given that Thomas worked at ARCON/PT, the 

jury could reasonably infer that he did not have to engage in 

strenuous physical activities. (Contra, Atkins v. City of 

13 During Henderson’s and MacArthur’s testimonies, the City 

tried to admit into evidence documents listing the essential 

functions of a police officer. Thomas objected to the admission of

these documents, and the trial court sustained the objections. 

The City does not challenge these evidentiary rulings on appeal.
25

Los Angeles (2017) 8 Cal.App.5th 696, 718 [evidence established 

that the essential functions of a police recruit included rigorous 

physical demands].)

In fact, defense counsel highlighted the functions of an 

instructor during his closing argument: “He’s an instructor.” 

And instructors, who teach, demonstrate, and understand safety,

are “very useful.” Defense counsel said nothing about

MacArthur’s description of the essential functions of a police 

officer. Under these circumstances, the jury was free to weigh 

the conflicting evidence in making its determination as to what 

the essential functions of the job were and whether Thomas could 

perform them.

14

Certainly Government Code section 1031, subdivision (f), 

requires that peace officers “be free from any physical, emotional, 

or mental condition that might adversely affect the exercise of the 

powers of a peace officer.” In light of the evidence that Thomas 

was cleared by his doctors to be a police officer, there is no 

violation of this statute.

2. Legal argument

Relying upon Raine v. City of Burbank (2006) 

135 Cal.App.4th 1215 (Raine); Lui, supra, 211 Cal.App.4th 962; 

and Quinn, supra, 84 Cal.App.4th 472, the City argues that 

Thomas did not prove that he could fulfill all of the essential 

14 While the City criticizes the trial court for declining to 

consider evidence first presented in its reply brief in support of 

the JNOV motion, it does not demonstrate, let alone argue, that 

the trial court abused its discretion in doing so. (Jay v. Mahaffey

(2013) 218 Cal.App.4th 1522, 1538.)
26

functions of an LAPD officer as a matter of law.

15 These cases 

are readily distinguishable.

The issue in Raine was whether an employer who 

“reassigns an employee to a temporary light-duty position to 

accommodate the employee’s injury [has] an affirmative 

obligation under [FEHA] to make that temporary light-duty 

assignment available indefinitely once the employee’s temporary 

disability becomes permanent.” (Raine, supra, 135 Cal.App.4th 

at pp. 1217–1218.) The Court of Appeal held that the answer was 

no; the permanent accommodation sought by the employee was 

unreasonable as a matter of law. (Id. at p. 1218.) That is not the

issue in this case. Thomas is not arguing that the City should

have made permanent the light duty assignment he sought while 

recovering from knee surgery.

In Lui, a police officer who had suffered a major heart

attack retired from his position after the police department 

“informed him [that] there were no administrative positions 

available that did not require him to perform the strenuous 

physical activities regularly performed by patrol officers in the 

field.” (Lui, supra, 211 Cal.App.4th at p. 965.) The officer filed a 

disability discrimination action, and the matter proceeded to a 

court trial. (Id. at p. 968.) The trial court found in favor of the 

defendant, and the plaintiff-employee appealed. (Ibid.) Thus, 

15 While this argument was raised in the City’s motion for a 

directed verdict and its JNOV motion, the City never asked that 

the jury be instructed that Thomas had to prove he could fulfill 

certain physical functions. And, as set forth above, this 

argument was not presented to the jury in the City’s closing 

argument.
27

“the key issue on appeal [was] whether the record support[ed] the

trial court’s finding that [certain strenuous duties were] essential 

functions of the administrative positions sought by [the] 

plaintiff.” (Id. at pp. 968–969.) Because the plaintiff-employee 

did not demonstrate that the trial court’s finding was 

unsupported by the record or contrary to FEHA, the Court of 

Appeal affirmed the judgment. (Id. at p. 969.)

Just as in Lui, the issue here is whether the judgment is 

supported by substantial evidence. And, as set forth above, it is. 

Nothing in Lui stands for the proposition that there are certain 

essential strenuous job functions that a plaintiff must prove in

order to establish a disability discrimination claim, particularly 

here where the jury was not so instructed.

At best, an officer who is working full duty may be expected 

to perform essential strenuous job functions, such as, for 

example, the functions identified by MacArthur during her 

testimony. But as several witnesses at trial explained, there is a 

difference between full duty and light duty assignments. And, 

Thomas did not have to return to work full duty. Officers are not 

expected to perform like full duty officers when they are on light

duty.

Finally, in Quinn, the plaintiff, who suffered a significant 

hearing impairment, was hired as a police officer as the result of 

a clerical error. (Quinn, supra, 84 Cal.App.4th at p. 475.) When

his hearing impairment was discovered, his employment was 

terminated. (Ibid.) The plaintiff sued on the grounds that his 

discharge constituted illegal disability discrimination. After the 

defendant’s motion for a directed verdict was denied, the matter 

proceeded to trial, and the jury found in favor of the plaintiff. 

(Ibid.) The defendant appealed, and the Court of Appeal reversed 
28

the judgment on the grounds that the “plaintiff failed to produce 

evidence on a critical element of his claim: his qualification to be 

hired as a police officer.” (Id. at p. 476.)

The City relies upon Quinn’s statement that the essential 

duties of a police officer “is a matter solely to be determined by

the police department itself.” (Quinn, supra, 84 Cal.App.4th at 

p. 482.) At the risk of sounding redundant, the parties presented 

evidence from LAPD officers as to what those duties were, and 

Thomas presented ample evidence that he was qualified to 

perform them.

II. Alleged jury misconduct

A. Standard of review and relevant law

Code of Civil Procedure section 657 provides that a verdict 

may be vacated and a new trial granted if jury misconduct 

“materially affect[s] the substantial rights of [a] party.” (Code 

Civ. Proc., § 657.)

“In ruling on a request for a new trial based on jury 

misconduct, the trial court must undertake a three-step inquiry. 

[Citation.] First, it must determine whether the affidavits 

supporting the motion are admissible. [Citation.] If the evidence 

is admissible, the trial court must determine whether the facts 

establish misconduct. [Citation.] Lastly, assuming misconduct, 

the trial court must determine whether the misconduct was 

prejudicial. [Citations.] A trial court has broad discretion in 

ruling on each of these issues, and its rulings will not be

disturbed absent a clear abuse of discretion.” (People v. Dorsey

(1995) 34 Cal.App.4th 694, 703–704.)

16

16 Holdings concerning juror misconduct in criminal cases 

may be applied in civil cases. (People v. Hill (1992) 3 Cal.App.4th 
29

“[M]isconduct creates a presumption of prejudice which 

may be rebutted by a showing that no prejudice actually 

occurred.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 255–

256.) “Some of the factors to be considered when determining 

whether the presumption is rebutted are the strength of the

evidence that misconduct occurred, the nature and seriousness of 

the conduct, and the probability that actual prejudice may have 

ensued.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.)

“In determining whether juror misconduct occurred, ‘[w]e 

accept the trial court’s credibility determinations and findings on 

questions of historical fact if supported by substantial evidence.’ 

[Citations.]” (People v. Schmeck (2005) 37 Cal.4th 240, 294; 

Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 

567, 624–625.)

“‘“It is the trial court’s function to resolve conflicts in the 

evidence, to assess the credibility of the declarants, and to 

evaluate the prejudicial effect of the alleged misconduct 

. . . . However, in reviewing an order denying a motion for new

trial based on jury misconduct, as distinguished from an order 

granting a new trial on that ground, a reviewing court has a 

constitutional obligation . . . to review the entire record, including 

the evidence, and to determine independently whether the act of 

misconduct, if it occurred, prevented the complaining party from 

having a fair trial. [Citations.]”’ [Citations.] This court must 

undertake a de novo review to determine whether there was 

misconduct, and, if so, whether that misconduct” was prejudicial 

to the appellant and requires reversal of the judgment. (People v. 

Cumpian (1991) 1 Cal.App.4th 307, 311.) “Although we 

16, 37–38, fn. 8, disapproved on other grounds in People v. Nesler 

(1997) 16 Cal.4th 561, 582, fn. 5.)
30

independently review the record upon the denial of a motion for 

new trial based on jury misconduct, we still give deference to the

trial court’s discretionary determinations.” (Vomaska v. City of 

San Diego (1997) 55 Cal.App.4th 905, 912.)

B. Waiver

As set forth above, the trial court found that the City 

waived its jury misconduct objection. This finding is supported 

by ample evidence. When the error came to everyone’s attention, 

at no time did the City request a mistrial. The City did not object 

to the trial court’s instruction that the properly seated jurors 

deliberate anew. And, it did not request further instructions 

after the trial court gave its instruction to begin deliberations 

anew. Not until the jury gave its verdict for Thomas and the City 

was dissatisfied with the result did the City file a motion for a 

new trial on the grounds of jury misconduct. (See, e.g., People v. 

Russell (2010) 50 Cal.4th 1228, 1250; People v. Lewis (2009) 

46 Cal.4th 1255, 1308.)

C. Analysis

For the sake of completeness, we turn to the merits of the 

City’s argument.

Assuming without deciding that there was jury misconduct, 

we agree with the trial court that the presumption of prejudice 

was rebutted. When the error was called to the trial court’s 

attention, it immediately corrected the error by replacing the 

alternate juror with the correct juror and sending the correct 

jurors back to the jury room to deliberate, with 

Mr. Hernandez’s viewpoint to be considered. We presume the 

jury followed the trial court’s instruction, and “there is not the 

slightest indication in the record that they were unable to do so. 

While the jury reached a verdict fairly swiftly, this fact alone 
31

does not tend to show prejudice.” (Brassfield v. Moreland School

Dist. (2006) 141 Cal.App.4th 67, 74.) As the error was not 

prejudicial, reversal is not required.

To the extent the City suggests that 13 jurors improperly 

deliberated, we disagree. At no time did 13 jurors deliberate. 

Before the jury left to deliberate for the first time, the trial court 

made clear that only 12 jurors were supposed to make the 

decision. There is no reason to think that the jury did not comply 

with this direction, either the first time (with the wrong alternate 

juror) or the second time (with the correct 12 jurors).

Relying upon Griesel v. Dart Industries, Inc. (1979) 

23 Cal.3d 578, 583–584, overruled on other grounds in Privette v. 

Superior Court (1993) 5 Cal.4th 689, 696, the City argues that

the trial court committed instructional error because it did not 

instruct the jury to disregard prior deliberations. We disagree. 

By specifically telling the jurors to “[s]tart all over again and take 

a vote again,” that is exactly what the trial court did. (Griesel v. 

Dart Industries, Inc., supra, at p. 584; see also People v. Renteria

(2001) 93 Cal.App.4th 552, 558 [jury must be instructed to 

disregard all past deliberations and begin deliberating anew]; 

People v. Odle (1988) 45 Cal.3d 386, 405–406 [“[by] instructing 

the jury to ‘start from scratch,’ the court [properly] implied [that] 

the jury should disregard previous deliberation”], disapproved on 

other grounds in People v. Prieto (2003) 30 Cal.4th 226, 256.)

In any event, “there is no rule of automatic reversal or 

‘inherent’ prejudice applicable to any category of civil

instructional error.” (Soule v. General Motors Corp. (1994) 

8 Cal.4th 548, 580.) “A defendant must also show that the error 

was prejudicial . . . and resulted in a ‘miscarriage of justice’

[citation].” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) 
32

“[I]nstructional error is prejudicial ‘where it seems probable’ that 

the error ‘prejudicially affected the verdict.’ [Citation.]” (Soule v.

General Motors Corp., supra, 8 Cal.4th at p. 580.) “[W]hen 

deciding whether an error of instructional omission was 

prejudicial, the court must also evaluate (1) the state of the

evidence, (2) the effect of other instructions, (3) the effect of 

counsel’s arguments, and (4) any indications by the jury itself 

that it was misled.” (Id. at pp. 580–581.)

Applying these factors, even if the trial court had erred as 

the City asserts, that alleged error was not prejudicial. The 

jurors were instructed to “[s]tart all over again.” Throughout the

initial deliberations, Mr. Hernandez was present but silent. But 

during the second deliberations, he openly expressed his 

viewpoints and opinions while Mr. Bindoy remained quiet. There 

is no indication of any error.

III. Attorney fees

A. Standard of review

We review an order granting or denying attorney fees, as 

well as the amount of a fee award, for abuse of discretion. 

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 

140, 148.) After all, “‘[t]he “experienced trial judge is the best 

judge of the value of professional services rendered in his court, 

and while his judgment is of course subject to review, it will not 

be disturbed unless the appellate court is convinced that it is 

clearly wrong”’—meaning that it abused its discretion.” (PLCM 

Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

“‘An abuse of discretion occurs only where it is shown that 

the trial court exceeded the bounds of reason. [Citation.] It is a 

deferential standard of review that requires us to uphold the trial 

court’s determination, even if we disagree with it, so long as it is 
33

reasonable. [Citation.]’” (Bloxham v. Saldinger (2014) 

228 Cal.App.4th 729, 753.) “We will reverse the trial court’s 

determination only if we find that ‘in light of all the evidence 

viewed most favorably in support of the trial court, no judge could 

have reasonably reached a similar result.’” (Bates v. Presbyterian 

Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.) 

In other words, “[w]e presume the fee approved by the trial court 

is reasonable.” (Karton v. Ari Design & Construction, Inc. (2021) 

61 Cal.App.5th 734, 743.)

The burden is on the party seeking attorney fees to prove 

that the fees it seeks are reasonable. (Gorman v. Tassajara 

Development Corp. (2009) 178 Cal.App.4th 44, 98.) It is also the 

appealing party’s burden to prove that the trial court abused its

discretion. (Ibid.)

B. Relevant law

The fee setting inquiry in California ordinarily begins with

the “lodestar,” namely the number of hours reasonably expended 

multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. 

Drexler, supra, 22 Cal.4th at p. 1095.) “‘After the trial court has 

performed the calculations [of the lodestar], it shall consider

whether the total award so calculated under all of the 

circumstances of the case is more than a reasonable amount and, 

if so, shall reduce the [Civil Code] section 1717 award so that it is 

a reasonable figure.’” (PLCM Group, Inc. v. Drexler, at pp. 1095–

1096.) In determining “reasonable” compensation, trial courts 

must carefully review attorney documentation of hours expended; 

“padding” in the form of inefficient or duplicative efforts is not 

subject to compensation. (Ketchum v. Moses (2001) 24 Cal.4th 

1122, 1132.)
34

In adjusting the lodestar figure, the trial court makes its 

determination after consideration of a number of factors, 

including the nature of the litigation, its difficulty, the amount 

involved, the skill required in its handling, the skill employed, 

the attention given, the success or failure, and other 

circumstances of the case. (Melnyk v. Robledo (1976)

64 Cal.App.3d 618, 623–624.) Our Supreme Court has never 

“carved the factors used [to calculate the lodestar] into concrete 

or barred consideration of other relevant and nonduplicative 

factors; nor have the courts of appeal sought to do so.” (Lealao v. 

Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 40, 

fns. omitted.)

The value of legal services performed in a case is a matter 

in which the trial court has its own expertise. (Melnyk v. 

Robledo, supra, 64 Cal.App.3d at p. 623.)

C. Analysis

The City has not met its burden of demonstrating that the

trial court abused its discretion. The trial court reduced the fee 

award from the requested amount ($3,081,273) to the lodestar 

amount ($1,849,300) and then applied a 1.25 multiplier to arrive 

at a total of $2,311,662.50. Its reasons for doing so are more than 

sufficiently explained in its detailed order.

1. Alleged fees related to the 2014 mistrial

Relying upon Knapton’s expert declaration, the City argues 

that the trial court erroneously awarded Thomas fees incurred in 

connection with the 2014 trial that ended in a mistrial. Because 

the mistrial was the result of Thomas’s counsel’s “malfeasance,”

counsel should not be entitled to recoup these fees.

While the trial court seems to have rejected this legal 

argument in its order, the City cannot establish that these fees 
35

were actually awarded to Thomas. “‘[I]t is incumbent on the 

party who is dissatisfied with the court’s calculation of the 

number of allowable hours to request specific findings.’” (Taylor 

v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1250.) But 

the City failed to request specific findings; thus, the City cannot 

conclusively establish, and we cannot find, that any fees that

arguably should not have been awarded were in fact awarded.17

2. Fees related to the Thomas II claims

The City further argues that Thomas cannot recover fees 

for the 110.6 hours involving the Thomas II motion to dismiss

and 371.9 hours regarding “events and proceedings” exclusively

directed at Thomas II.

Again, due to the lack of specificity in the trial court’s 

order, the City cannot demonstrate that Thomas was awarded 

attorney fees for hours expended regarding Thomas II. All we 

know is that the trial court did award plaintiff a reduced fee 

award given his success on his disability discrimination claim 

approximately 10 years after he suffered his knee injury.

3. Multiplier

The City argues that the trial court erred in applying a 

multiplier to the lodestar figure. We find no abuse of discretion. 

In awarding attorney fees, the trial court expressly relied upon 

Ketchum v. Moses, supra, 24 Cal.4th at page 1132, which

reaffirmed that a trial court may employ a multiplier “based on 

17 In its reply brief, the City acknowledges that the trial 

“court reduced hours to the total fee award to 60% of the hours 

requested with only a couple of small exceptions.” Because of 

“the global reduction in fees,” the City asks that “the specific fees 

addressed [in its appeal be] similarly reduced.” For the reasons 

set forth herein, we decline to do so.
36

factors including . . . the extent to which the nature of the

litigation precluded other employment by the attorneys” and “the 

contingent nature of the fee award.” (Ketchum v. Moses, supra, at 

p. 1132.) It then went on to explain why those two factors 

weighed heavily here, including the fact that Thomas’s “counsel 

expended resources in this matter without receiving any 

compensation for over ten years.” Because Thomas demonstrated 

that counsel “took on a considerable degree of risk by litigating 

this case on a contingency basis” and “advanced costs and spent a 

lot of time on the case while deferring any compensation and 

risking no compensation,” it awarded a reduced multiplier of 

1.25, largely because of “the contingency nature of the

representation.”

There was no abuse of discretion.

DISPOSITION

The judgment and order are affirmed. Thomas is entitled 

to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT