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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 a nd Appellant

,

v.

CIT Y O F LOS ANG ELES

,

Defendant and Appellant

. B 30 5051 ( c/w B308622)

(Los Angeles County Super. Ct. No. BC416182 )

APPEAL S from a judgment and an order of the Superior Court of Los Angeles County. Victor E . Chave z , Judge

. Affirmed

.

S h ege rian & Asso ciates

, Inc., Carney R. Shegerian and Jill McDonell for Plain tiff and Appellant

.

Michael N. F eu er, City Attorney, Kathleen A. Kenealy, Chief Deputy City Attorney, Scott Ma rc us, Chief Assistant City Attorney, Blithe S. Bock, Managing A ssistant City A t torney, and Michael M. Walsh, Deputy City Attorney

, f or Defendant and Appellant

.

___________________ __________

_2 Plaintiff Malcolm Thomas ( Thomas) , a former employee of
the Los Ang e les Police D epartment (LAPD)

, bro ught a Fair Employment and H o using Act (F EHA) action against de fendant City of Los Angeles ( the City) , alleging six causes of action

. The matter was originally tried in July 2010, wi th a de fense verdic t on all causes of action except the claim for disabil ity discrimination; the ju ry f ound in fav or of Thomas on tha t cause of
action

. The City successfull y appealed

. On December 6, 2 0 12 , we reversed t he judgm ent in favor of Thomas and remande d the

matter for a new trial on Thomas ’ s disability discrimination
clai m. In July 2 0 1 9
, t he matter wa s re tr ied . The jury again found in favor of Thomas, awarding him $1,014,000

. The trial
court later awarded Th omas attorney fees in the amou nt of $2,311,662.50 and costs of $272,270.01. On appeal, the City argues: (1) B ecause Thomas was not a

qu alified p erson, he failed to present a prima facie disability
discri mination case ; (2) Jury misconduct requires a new trial ; and (3) The trial court awarded Thomas excessive attorney fee s

. We affirm. 1

1 Thomas also filed a protect ive cross

- appeal. Accord ing to his appellate bri ef: “ In this protective Cross

- Appea l, Th omas asks that the Court r e ve rs e the Trial Co urt’s Oct ober 3, 2 018, Order, granting [the City’s] Motion to Dismi ss claims under Thomas’s 2012 complaint pursuant to th e three

- year and five

yea r statutes, only if this Cour t reverse s the judgment pursuan t to [the City’s] appeal .” We presume Thomas is r eferring to the
t rial court ’ s October 10, 2018 , order ; on October 3, 2018, the trial court took the City ’ s moti o n to dismiss un der submission. In any

even t, s ince we are affirm ing t he jud gment, we need not r e ach the issues raised in th e cross

- appeal.3 F ACTUAL 2 BA CKGROUND
I. Tho mas’s employment with LAPD
Thomas b egan w orking as an LAPD police officer in May 1997, then worked for the District Attorney ’ s Off ice , returning in February 2007 and transferrin g to the t raining d ivis i on in September 2007. He trained extensively and work ed as an
instructor in ARC ON/PT, 3 a ssisti ng primary instructors teaching
recruits and teachin g cla ss es to in

- service officers getting

re certi fied.
II. Thomas i njure s his knee On May 9, 2008, during a training ses s ion, Thomas tore his
left knee medial meni scus and injured his back

. On Monda y, May 12, 2008, Thomas provided a doctor’s note

to his supervisor

, S erg eant Christopher Costley (Costley)

, informing LAPD that Thomas’s physical restricti ons included no squatting, kneelin g, running, jumping and limited use of knee. 4

2 W e review the rec o rd in the light most favorable to the judgment. (

People v. Rodri

guez (1999) 20 Cal.4th 1, 11.) Bec ause the City only chall enges one elem ent of Thomas ’ s discri minat ion claim (whether he was a qualified individual ), we limit our discussion of the d etailed facts to those per taining to that

con tention

.

3 Arrest and Co ntrol/P hysical Tr ai nin g unit.

4 Part of Thomas ’ s disabilit y di sc rimination claim was that Costley disr e garded these res trictions

.4

III. Tho mas undergoe s knee surgery a nd th en returns to work
with restrictions
A. Surgery On June 30, 2008, Thoma s underwent knee surgery, which required months of recovery.
B. LA PD policies regarding ret urning injur ed officers to
work
The LAPD has two statuses for officers retur n ing from injury , te mporary and permanent. If a d octor places temporary medical restrictions on an LAPD officer, the officer can work if it
does not violate his restrict ions. The LAPD has an obliga tion to return i njured workers ba ck to wor k without viola ting
restrictions. “There’s a lot of inside jobs that the department has to accommodate people who are lig ht duty. ” For example

, Captain Michelle M. Veenstra (Veenstra) te stifi ed that Thomas
could have worked with restrictions in her offic e

. From 2008 t o 2009, the LAPD had a number o f officers working day

- to

- day desk jobs, whi ch included Police Officer II (Thomas’s position).
Former A ssistant LA PD Ch ief S andy Jo MacArthu r (MacArthur) testified that returning to ac tive duty, not full duty,
is the LA PD’s c oncern reg arding injured officers ; LAPD would
like them t o co m e back and actively partici pate in light duty.
Office rs ar e not expected to perform like full duty officers when
the y are on light duty.
C. Thomas ’ s re turn to work; Costley ’ s fa ilure to comply with LAPD policy and t he medical restrictions Thomas spoke with Costley twice post sur gery while on
le ave. First, he called and said he would be returning with strict restrictions; Costley said to get longer time o ff from his doctor
because the re wa s not much to do “ ‘ unless yo u ’re f ull

- go. ’ ” Later,5

when Thomas reported that he still had stri ct re strictions and provided LAPD with a doctor ’ s note detailing the restrictions

, Costley responde d

, “ ‘ We’ll put you on the f ourth floor, ’ ” the
adminis trative f

loor

. In the October 13, 2008, duty certificate that Costley
created us ing T homas’s doctor’s note, Costl ey wrote, “ [ s ] edentary work only” after returning from surgery.
Thomas returned to work on Octob er 15, 2008

. But

, he
never work ed fourth floor administ rative , and his work was not

s edentary. Instead, he worked his normal duties as a n assistant instructor, helping teac h recruit classes an d demonstrating techniques

, but n o t g oi ng on runs. Thomas discussed his
restrictio ns with Cost ley a nd reques ted proje cts th at would be
sede ntary; Costley said, “ ‘ I’ll let you know. ’ ”
D

. Thoma s notifies Veenstra of discr imination and/or
h ara ssmen t Tho mas felt that Costley was not recognizing his
restrictions by not placing him o n the f ourth floor and expecting
him “ to g o out there with the recruits

. ” Thus, o n November 10, 2008, Thomas notified Veenstra of disability discrimi n ati on

an d/or hara ssment. E

. Thomas gives Costley a N ovemb er 11, 2008, doctor ’ s
note ; he is pla c ed on medical l eave (Nov. 12, 2008)
On No vember 11 , 2008
, Thomas obtained a doctor ’s note
f rom Dr. Emmett Cox II

, an orthoped i c s urgeo n and the agreed
medical examiner

, that returned Thomas to wo rk on modified duty. The fol lowing day, he gave that note to Costley ; Costl ey

respo nded angrily

. He told Thom a s: “ ‘ Veenstra told me to giv e
you a pr oject, ’ ” his first time offering administrative duties to
Thoma s. Costley was “ vis i bly upset ” at roll call and looked a t6

Thomas, stating, “ [W]e ’ re all adults here . I f you have a p roblem fix it yourself. ’ ” After ro ll cal l, no one spoke to Thomas ; they
turned their b acks on him, which was not normal.
A fter work that day, Thomas went to his primary care doctor, Dr. Amanuel Sima, because he was anxious, headachy, and suffer ing f

rom ir re gular breathing . He was placed o n leav e until December 2 6 , 2008, f or mu ltiple medical conditions. On November 13, 2008, Costley received Dr. Sima ’ s note.
IV. Mean w hile, Thoma s begins mental health tre a tme nt F rom O ctober 2008 through January 2009, Thom as had

va rying levels of d epr ession

. A. Dr. Adam Herdina Starting on October 30, 2008, Thomas began obtaining
treatment from Dr. Adam Herdina , a police psychologist

. Dr. Herdin a saw impr oveme nt in February/March of 2009,
whi ch he attributed to Thomas be i ng a way from work. At no
time did he opi ne th at Thomas ’ s police powers should be
removed.
B. Dr. Rodney D. Collins
O n November 24, 2008, p sychiat r ist Dr. Colli ns began treating Thoma s. On January 29, 2009, Dr. Coll ins issued a stay away order to the LA PD, advising Thomas ’s supe rvisors a nd the
LAPD as a whol e t o cease cont act with Thomas. After 60 days, Thomas impr o ve d

, so on Ma rch 28, 2009,
Dr. Co llins issued a release to return to work. 5 Dr. Collins did
not believe that Thomas’s ability to be a poli ce officer was
restricted at that tim e.

5 His office ’ s stan dard practice is to fax th e se notes to the employer.7 Dr. Collins verbally inform ed Thoma s of this rele ase within a few days of its t ransmittal to Thomas ’ s e mployer

. After h is conversation with Dr. Collins, Thomas informed
Sar ah Richardson (Richardson) , an in vestigator wi th the Inspector General ’ s Office, that h is “psych” had clea r ed him. On April 24, 2009, Richardson e

- mailed Detective Chri stoph er Leo Casey (Casey) and then

- Sergeant Timo thy Nordquist (Nordquist)
at Internal Affair s that Thomas “stated that he had been cl eared by the psychologist. ” Casey e xplain ed th at even though Thomas had been

“ clear ed, ” that assessment had to go t h r ou gh the LAPD “ Medical
Lia ison ” so that LAPD could tr u st and verify that the officer
could return to work. But, Casey did nothing i n re spo ns e and
was unaware if LAP D followe d up o n it.
V. L APD ’ s investigation into Thomas ’ s discrimination co mplaint Eventually, the LAPD launched an investigation into
Thomas ’s discrimina tion com plaint. Nordquist led the investigation a nd submi tted his report to the adjudicator, Captai n Don Sch wartze r, who iden tifie d no misconduct.
V I. Thomas ’

s police powers are suspended
A. S uspension of police powers On April 6, 20 09, Thomas ’ s p oli ce po wers were removed

. 6
Veenstra notified Thomas : “ Y our peace officer sta t us shall remain suspended until yo u are returned to full and active

6 At trial, No r d quist testified that the removal of p olice powers incl uding badge and gun co nstit utes an adverse employment action.8

d uty,” 7 directing him to relinquis h his duty weapon and identification, “[b]ased on your medi cal conditi o n, the
D epart ment hereby withdraws your authority to act in t he capacity as a peac e officer.”
VI I

. Thomas i s cleared t o re t urn to work
A. Conflicting evidence regarding when Thomas was
cleared to r eturn to work There was conflict i ng evide nce r egardi ng when Thomas
was cleared to return to work. On July 2, 2 008, Dr. Ronald E. Glousman , Thomas ’ s surgeon, notifi ed LAPD t hat T h omas was

“ temporarily totally disabled for 6 weeks. ” But on July 31, 2008,
Dr. Glousman reported th a t T homas coul d return to work that date with certain physical restrictions

. A September 8, 2008, treatment and di sability information
form completed for T homas ’ s workers ’ co mpensation claim
indicated that he could return to work on res tricted du ty on ly ef f ective that date. But, another treatment and d isability information form, also dated September 8, 2008, indicate d that Thomas was tempora r ily total ly dis abled until October 13, 20 08. As set forth above, Dr. Cox retu rne d Tho mas t o work on modified duty on November 11, 2008

. I n other w ords, as Dr. Cox

e xplained a t trial, Thomas could have performed his job with

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

was n ot necessary and a n oversi ght beca u se offi c ers re turn and work ligh t duty; MacArthur wou ld not have put “ full duty ” in the lett er be cause LAPD ’ s concern is ac t ive du ty, even if l ight. Although she signed it, Veenstra coul d not explain why the letter refe r enced full duty, because T homa s di d not ha v e to come back full duty.9

accom modations; he could be a p olice off icer w ho 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

- t o

- hand combat.
Dr. Collins issued a relea se for T hom as to retu r n to work on March 28, 2009. Dr. Sima clear ed T homas to r eturn to work

on May 24, 2009.
Dr. Douglas Jackson, an orthopedic surgeon

, signed a workers ’ compensation document authorizing Thomas to retu rn
to work as a pol ice offic er as of August 14, 2009.
Dr. Ro bert Wilson, an orthopedic surgeon

, offered expert testimony that by 2009, Thomas wou ld have b een cleared to
return to full activities.
Thomas also saw Dr. Yuan i n 2009. In May, Dr. Yuan placed him off work for si x weeks. On Au gust 27, h e indicated that Thomas was to remain off work f or four weeks because of
back pain

. Derwin Henderson (Henderson) of the return to work

sect ion 8 opi ned t hat Thomas ’ s restrictions did not allow him to

retu rn to work until 20 16

.

8 The retur n to work section finds reasona b le accommodations for employees with permanent and temporary work restrictions

. Donna Baylosis (Baylosis) testified th at the

re turn to work se ction do es not hand le situ ations wh ere an o ffi cer brings his supervi sor a light duty notice and the officer can be accommodated by the division

. How ever, if the training division

c ould not accommodate a light duty, the re turn to work section

wou ld step in and assist.10 B

. C onflictin g evid ence regarding whether Thomas had to return to work full duty
Thomas believed that he had been cleared to work with
restrict ions, i.e., li ght d uty. But, Thomas understoo d from t h e LAPD that he was required to retur n to full duty, making lig ht duty n ot an option. Af ter all, before he returned to work after his

sur gery, Costl ey told him not to return “‘unless you’re full

- go.’”
Veenstr a ’ s Apri l 6, 2009, letter also said so

. And, two employees
with the r eturn to work section, Baylosis and Hen derson

, a dvised
Thom as th at he was r equ ired to return to full d uty. Thomas was
never told that h e did not have to return to work f ull du ty in
2009. According to Veenstra, removal o f his police powers did not prevent Thomas from r eturning to work. S h e te s tified: “ [A] ll h e had to do was come back with a docto r’s note pu tting him back to full duty

— c oming back, a nd

. . . 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 t h at time eve ryt hing would be
reevaluate d.” In fact, LAPD had of ficers wh o worked in
administration. And o fficers in the training division do not make

arrests. PR OCEDURAL BACKGROUND
I. The c o mplaint; f

irst t r ial ; a ppeal ; r eman d for n ew t rial
In June 200 9, Thomas initi ated this lawsu it agai nst the
C ity, alleging claims for (1) workplace h arassment in violation of FEHA; (2) retaliation in violation of FEHA; ( 3) fai lure to investigate in violation of FEHA; (4) d i sability, rac ial, a nd sexual
orientat ion disc riminatio n in v iolation of FEH A; (5) retalia ti on 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 return in g a verdi ct in fav o r of Thomas on the sole claim of
disa bility di scrimi natio n. The City successfully appealed

. Findin g prejudicial error in the trial cou rt ’ s jury instructions, w e reversed the j udgment and remanded the matter for a new trial
on that lo ne caus e of action

. 9 ( Thom as v. City of Los Angeles ( Dec. 6, 2012
, B229 2 65 ) [no n pub. opn.].)
II. T hree n ew t rials on the r e manded d isability d iscrimination

c laim In October 201 4, the trial court retried the remanded
disabi lity discrim inatio n cause of ac tio n. A mistrial occu rred.
The reaf ter, a ne w trial on th e r emande d d isa b ility discrimination claim commenced in April 2015, b ut the jury co uld
not reach a verdict.
The thir d retrial bega n in Ju ly 2019. 10
I II

. Ju ry i nstru ctio ns As pertains to the issues in this app eal, the jury was giv en joint in structions as f iled by t he par ties. These instructions
includ ed CACI No

. 2543 , which defines “ ‘ Essential Job Duties ’ ”

9 While t he C ity ’ s app ea l was pending, Thomas initiated a second lawsuit against the City in 2012 ( Thomas II ). The parties later stipulated to dismiss Tho mas II without prejudice , with Thomas filing a supplemental compl aint in the instant act ion, adding eac h of the ca uses of a ct ion i n Thomas II to the disabil i ty discrimination claim. On October 10, 2018, the trial court dismissed those claims that were originally pleaded in Thomas II

. Thus, t he o nly claim that went to trial was Thoma s ’ s orig inal cause of actio n for d isability discri m in a tion.

10 After Thomas rested, the City moved for a directed ver dict. That mot ion was denied.12

and sp ecifi cally re ferences Government Code sections 1 2 926, subdivision (f), and 1294 0, subdiv ision (a)(1). The jury was also given the following s p e c i a l defens e ins t ruction : “ The C i ty has n o obligati on to accommodate Plaintiff if he was t otally disa bled and
could no t perform all of the essential functions required to be a police o fficer. ”
I V

. Jury On July 25, 2019, 15 jurors we re s worn in. On August 15,
201 9 , alte rnate jurors wer e chosen after both parti es rested, after
cl osing a rguments, and after the joint jury instructions were
read. Alternat es were rand om ly selected by drawing “ bec ause, obviously , 15 can ’ t make the deci sion that 12 a re required to make

. ” The trial court e rroneously informed that “ Alternate
Numb er 1 will be

– Juror Num ber 1, Mr. Bindo y. ” H owever, Mr. Bin doy was Juror No. 2; Mr. Hernand ez was Juror No. 1

. V

. Jury v erdict Ultimately, the jury returned a ve rdict fo r Thomas on August 20, 2019 , awar ding h im $714,000 for past e conomic loss, $300,000 fo r pa st noneco nomic loss, and no fu ture damages, for a

tota l verdict of $1,01 4,000.
VI

. Jury p oll and n ew d eliberati ons/ v er dict
Th e C ity re quest ed a poll o n Ques tio n No. 6 11 of the sp eci al
verdict. At t hat point, the par ties lear ned that Mr. Hernandez

11 Question No. 6 asked the jury whether the City would have subjected T homas to an adv erse employment action ha d the City

no t been substantial ly motiv a ted by h is a ct ual or perceived disability. The City does not explain why the answer to this question was so important, given the jury ’ s finding s in response
to Qu es tion Nos. 1 through 5 t hat the City did discriminate

a ga inst Thomas.13

(Juror No. 1) had believed himself to be an alternate and not voted, while Mr. Bi n d oy (Juror No. 2) had voted.
The tria l cou rt corr ected the roster of jurors an d sen t the jury back for additi onal deli bera ti ons and a new vote

. Specifically it told the j ury: “ You have to go back into the jury room. Ignore the vote

— this vote. Start a ll over again and take a

vot e aga in. [¶] He ar whatev er Mr. Hernandez has to say to speak to the issues

. [¶] I ask yo u to p lease return and do that. ”
It did not exp licitly instruct them to disregard the improper
de liberations. After the j ury departe d, th e trial cour t and counsel
discuss ed how th is confusion could h ave occurred. The tr ial c ourt aske d the clerk to confir m the three alternates with the jury. Identifying Juror Nos. 2, 10, and 1 6, the t ri al court told the clerk:

“ Those shoul d be jurors th at sh ouldn ’ t be delib erating, and they
should star t their deliberations all over agai n. ” The clerk then
locate d blank v erdict forms to give to the jurors. The trial court

c onfirmed with co unsel that this proceedi ng was satisfa ct or y; defense coun sel did not obje ct. After approximately 30 minutes, the jury returned with the
identical verdi ct. VI I

. T he City ’ s m oti o n for a n ew t ri al
A. Motion and opposition On December 23, 2019 , the C ity moved for a ne w trial o n the grounds of juror misconduct. It argued that “ a non

- juror part icipated in the d eliberation process from its inception and fo r over two days as if he w as a desi gnated juror and then voted on
the S peci al Verdict which was rea d in open cou r t. ” Ac cording to the Ci ty, the alleged jury miscondu ct was pervasive “ since i t invalid ated the entire deliberation over more than two days

— and14

therefore wen t to the ver y heart o f the deliberation pro ces s. ” And
the tria l court did n o t pr ovide a c ure. “ The only thing the jury
was told here was to ignore the previous vote on the s pecial verdict when reconvening, and no mention was made of the two
da ys of invalid deliberat ion. [Ci tation .] In f act, the jury should
have be en required t o dis regard al l pre vious deliberatio ns

— wh ich were inherently impr oper and legally invalid

— and anyth ing that the mispla ced alterna te m ay have said during
those deliber ati ons. [Citati ons.] Tha t did not happe n here. ” The City added: “ It is no t e ven clear fro m the court ’ s
comments that the jury was instructed to begin deliberations

o ver from the beginning. The court ’ s comment that the jury
should ‘ s tart all ov er again and take a vote again ’ is ambiguou s,

par t icularly since the jury was not instr u cted to disre gard any of
the prior invalid deliberations. [Cita tion.] A fair reading of this

com ment, followed by an instruction to let the m issing juror speak, would be to l et him speak and then vote again, w ith fu l l
consideration of the i mproper delib e rati ons. Giv en th e fa st turnaround by the jury after restarting deliberations (about
30 minutes), particularly given the length of t he special verdict
and that the pr e vious de liberations took over two days, it app ear s that the jury did rely on the improp e r de liberatio ns. ”
Thomas opposed the motion.
B. Trial court order
On Febr uary 21, 2020, the trial court denied the City ’ s motion , fi nding th at the jurors ’ conduct di d not cau se prejudice or

res ult in a miscarr iage o f justice. The t rial court first found that the City waived an y challenge to the verdic t on the grounds of juror mis conduct. Defen se “ counsel knew about the miscondu ct involving the a lternate juror deliberating wi th the other jurors15

before the verd ict. The re is no evide nce that he promp tly objected after learning a bout the misconduct. Fur the r, [de fense] counsel could have immediately objected or discussed his

concer ns during the thirty minutes when the jury was a bs ent and deliberating. S ince the [Cit y ] di d not mak e any prompt objection after learning about the all eged juror misconduct

, th e [City] waived this ground for a new trial. ” Setting that procedur al ob stacle aside, the trial court
turned to the ques tion of whether there wa s juror m i scon duct and

a re sulti ng miscarriage of j ust ice. It fou nd “ that there was jur y miscond uct because the jurors did not follow the court ’ s instructions. ” In particular, “ the jury did not follow t he C ourt ’ s instructions rega rding w hic h ju rors should p artic i pate in t he
del i ber ations. ” But

, “ this misconduct wa s no t preju dicial and did not result in a miscarriage of justice. ” “ [W] hen the Court
discovered that the alternate ju ror had deliberated and vote d
with the oth er j urors, th e Co u rt pro mptly corre ct e d the
miscondu ct by orderi ng the jurors to ignor e the pri or v ote and to vote again. As a result, any prejudice cr e ated by the alte rnate juror ’ s misconduct was not prejudic ial. ” Furthermore, th ere was no “ sh owin g that it was reasonably probab l e th at the jury wo uld have r eache d a different ve rdict. ”
T he fact that the second deliberation was shorter than the fir st deliberation was “ not enough to show [that] the re was jury
misconduct. ”
VIII

. C ity ’

s motio n for judgment not withstanding the verdict (JNOV)
On Decemb er 23, 20 19, th e City filed it s JNOV motion. It argued , in ter alia, that “ the evidence introduc ed at trial16

established that [Thomas ] was not a qualified in dividua l and

cou ld not p erfor m the essential functions of a police officer

. ”
Thomas opposed th e Cit y ’ s motio n. On February 21, 2020 , the trial court denied the City ’ s motion. After summarizing t he applicable law

, t he t ri al cou rt

no ted: “ First, the [City ’ s ] burden of persuasion i s to specify the

e videnc e re ceive d by the jury that identified the es sent ial funct ions o f [Thomas ’ s] job. The [City ] must specify the evidence
that i dent ifies the essential func tions b e cause lega l auth ority cannot define those essential functions. Each j ob, even tho se wit h t he same employer or catego ry o f employer, differs an d, as a

r esult, the [City] must cite to the record to identify these
essential fu nctions.

“ Second, if th e [City ] meets its burde n of showing that the evidence identified the essentia l functions, the [ City] must then
show that the jury received evidence th at [Thoma s] was not qualified to perform those identified essential functions and that
ther e was no subst antial evidence th at [Th omas] was qualified. This is necessary to show that a motion for [JNOV] should be granted on the gro und that there was no evi d ence supp orting the jury ’ s decision.

“ First, the [City] does not specify the evi dence in the record
that identi fied the es sentia l fun ctions of [Thomas ’ s] position as a police office r . The [City] dire cts the Co urt to no evidence establishing the essential function s of [ Thomas ’ s ] job. In the reply papers, the [City] argues that the es sential functions of a

p olice o fficer invo lve ma king forcible arrests and control ling and
transport ing suspects [citatio n]. Howev er, it is improper to raise this argument for the firs t time in the reply and, as a result, the [City] cannot rely on this to meet its burden. [Citat ion.]17 “ Instead, th e [Cit y] at tempts to meet its burden by focusing
on the evid ence that [Thomas ] was unab le to perform the

e ssential functions because he ‘ was off wo rk and totally disabled ’ [citation]. The [City] claims that, since the evidence shows that [Thoma s] was unab le to retur n to w ork, he was not qualified to

se rve as a pol ice officer and, as a resul t, there can be no
discrimination when it rem oved its police powers. ” In other words, the City ’ s “ arg u ment is premised on showing tha t [Thom as] was tot ally d isabl ed because he was not released to
return to work. ”
Th e trial co urt went on to set forth some of th e evidence

su pporting the inference tha t Thomas was qu alified because he
had been cleared to work, including Dr. Col lins ’ s note , Dr. S ima ’ s note, and the e

- mail exchange between two police officers confirming th at Thomas had been cleared to return to work.
The trial c ourt concluded: “ When vie wing the eviden ce in the light most favorable to [Thomas], this s hows th at there was

su bs tanti al evidence to support the jury ’ s finding

. . . that [Thomas] was able to pe rform the essential job d uties, i.e., that [Thomas ] was a qu alified individual. As a result, t his is not

gro unds to gra nt a [JNOV] in [the City ’ s] favor. ”
I X

. T ho mas ’ s m otion for a ttorney f ee s A. Motion and opposition On February 10, 2020
, Thomas moved for attorney fees
pursuant to Government Code section 12965 , subdivis ion (b)

. He

sou ght $3,08 1,273 and a multiplier of 1.75.
Th e City opposed Thomas ’ s motion

. In support, th e City
offer ed an expe rt declaration from Gerald G. Knapton (Knapton)

. He opined that Thom as ’ s counsel “ should not be allowed any fee

reco ve ry at this stage of the pro ceed in gs bec aus e they have no t18

explained the c ircumstances such that

. . . the total fe es they se ek
to have awarded to them would not be ‘ unconscionable ’ and in
violation of the R ules of Professional Conduct, Rule 1.5. ”

“ How ev er, if the Co urt find s tha t the c on dit ion s necessary for an

aw a rd are satisfied, then it is my opinion that r easo nable fees are
no more than $357,089.45. ”
B. Trial co urt order
In a 20

- page order , the trial court granted Thoma s ’ s motion
for atto rney fees

. Its detailed or de r set s fort h th e lega l

stan da rds, including a summary of t he lodestar method.
There after, it assessed Thomas ’ s motion, fi nding that he “ met his
burd en of demonstrating that the hourly rates sought f or his attorneys [were] rea sonable. ” How e ver, it reduced th e n umber of
hours reques ted

, ultimat ely award i ng a reduced amount of $1,849,330

. In so ruling, the trial court sy st ematically addressed each of the City ’ s challenges

. For ex ample, the tria l court rejected the City ’ s att empt to chara ct erize Thom as ’ s succes s a s moder at e , spe cifically noting that after 10 years of litigation, Thomas was awarded $1,014, 000 in com pensation for the City di scr iminat ing

ag ainst him. “ To qualify [Th omas ’ s] success a s mod erate is fallacious. ”
After establishi ng the lod e star amou nt, th e trial c ourt

t urned its attention to whether a multiplier should be applied.
After summa rizing and analyzing the re levant factors to determ ine whether a mult ip lier was appropriate, the tri al court
found that a 1.25 mu ltiplier wa s ap pro priate. “ The multi plier ref lects the fact that counsel undertook a consi derable amount of
risk in litigating [Thomas ’ s] ca se and their ul timate su cce ss in19

doing so. A mod est enhancement of 1.25 times the lodestar
amount wil l give e ffect to t he pur poses underlying the FEHA. ”
Ultimat ely, t he t rial court awarded Tho mas a total of $2,311,6 62. 50.
X

. A ppeal The City ’ s time l y appeal from the judg ment , the posttrial
motions , and the costs award ensued.
D ISCUSSION
I. Thomas presented a prima fac ie case o f disabi lity
discriminatio n The Ci ty cha lle nges the judgment of disability
discr im ination against it in tw o manners: (1) Th e tr ial c ourt ’ s order denying its JNOV motion ; and (2) T he jury verdic t

. A. Standard s of review The parties dispute the appropriat e standard of review.
Acc ording to the C ity, whether Thomas present ed a prima facie
case is a qu e stion of law.

“ Recent decisional law is replete w ith the statement that in
order to e stablish a prima facie case for [disabilit y]
discrimination

. . . , t he p laintiff must prove he was q ualifie d for the position. [Cita tions.] ” ( Quinn v. City of Los Angeles (2000)
84 Cal .App. 4th 47 2, 480
, italics added ( Quinn ) .)

“ ‘ Ca r e must be t aken in di stinguishing between the “ prima facie ” elements of a claim for employment d iscrimination and the

“ e ssential ” eleme nts of the same case which the jury must decide. [ ¶ ] ‘ Whether a pla inti ff ha s met his or her prima facie burde n and whether or not the defen dant has rebut t ed the pl aintiff ’ s prima facie showing , are questions of l aw for the trial court and not ques tions of fact for the jury

. [¶] ‘ The prima facie burden that rests upon p lain tiff will depend on the facts. For exa mple, if20

the adverse decision is a failure to hir e or promote, the plaintiff
has as part of his or her prima facie case, the burd en of pro ducing
evidence that he or she was qualified for the em p loyment or the promot ion. ’ ” ( Quinn

, supra , 8 4 Cal. App.4th a t p. 481.) As applied t o the iss ues in the instant case, in order to establish a prima facie case, Thomas was r equired to present

e vidence t hat he was qualified to perform the essential functions
of a police officer. If he fa iled to presen t that evidence, then he
would not hav e satisfie d hi s burden of presenting a prima facie

case as a matter of law . Howeve r, if he presented evidenc e that
he was q ualified , the question become s whether th at evidence i s sufficient. W e rev iew s ufficiency of the e vidence claims for
subst antial ev idence if the facts are disputed and de novo if the facts are undisputed

. ( Ellins v. City of Si erra Madre (2 016)
244 Cal.Ap p.4th 445, 452.)

“ ‘ Where find ings of fact are challen g ed on a civil app eal, we

a re bound by the “ elementary, but often over looked p r inciple of law, that

. . . the power of an appellate court begins and ends
with a d etermination as to whether there is any s ubstantial evidence, c ontradi cted or un contradicted, ” to support the fi ndin gs be low. [Ci tation.] ’ [Citation.] ” ( Reynaud v . Techni color Crea tive Services USA, Inc. (2020) 46 Cal.App .5th 1007, 1015.)

“ ‘ “ In applying this standa rd of review, we ‘ view the

ev idence in the light most fav orable to the prevailing party, giving it the benef

it of eve ry reasonable inference and resolv ing
all co nflicts in its favor

. . . . ’ [Citation.] ” [Citat ion.]

“ ‘ Substantial evidence ’ i s evidence o f ponderable l egal sign ifican ce, evidence that is reasona ble , credible and of sol i d
value. ” [Citat ion. ] We do not r eweigh evidence or reassess the

cr edibilit y of witness es. [Citation.] We are “ not a second tr ier of21

fact. ” [Citation.] ’ [Ci tation.] ” ( Reynaud v. Tec hnicolor Creati ve Services USA, Inc.

, su pra , 46 Cal.App.5th at p

. 1015 .)
That said

, “ ‘ [q]ue stions of statutory interpretation, and the applicabilit y of a sta tu tory standard to undisputed facts, present questions of law, which [ we review ] de novo. ” ( Lui v. City and
Count y of San Francisco (2012 ) 211 Cal.App.4th 962, 969 ( Lui ). )

“ On a ppeal from the denial of a JNOV motion, an appellate
court must revi ew the rec ord de novo and make an independent determination whether there is any su bstantial evidenc e to

supp ort the j ury ’ s findings. [Citations. ] ” ( Hirst v. City o f Oc eans i de (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 e vidence in suppor t. [Cita tion.] [¶]

. . . As in the trial court, the standard of review is
whether any s ubst antial evidence

— contradicted or uncontradicted

— supports t he jury ’ s conc lusion. [Citations.] ” ( Sweatman v. Depart ment o f Veterans Affairs (2001 ) 25 Cal.4th 62, 6 8.)
B. R elevant law
To establi sh a p rima fac ie case of physical disabili ty discrimination under FEH A, the employee must demon strate that he i s disabled and otherwise qualif ied to do the job and was subjected to an adverse employment acti o n be cause of such
dis abil i ty. (

King v. United P arcel Service, Inc. (2007)
152 Cal.App.4th 426, 432

– 433, fn

. 2.) The employee must
establish t hat he is a “ qua lifi ed individual, ” i .e., an em ployee who can perform the essentia l func tions of the job with or with out reasonabl e ac commo dation. ( Gree n v. State of California (2007) 42 Cal.4th 254, 26 0

– 261.)22 Governmen t Code sec tion 12926, subdivision (f )

, defines the ph rase “ ‘ E ssential functions ’ ” : “ ‘ Essential functions ’ me ans the
f undame n tal j ob duties of the em ployment position the indi vidual
with a disability hold s or desires. ‘ Essential functions ’ does not
includ e the marg inal functions of the po sit ion. [¶] (1) A job function may be considere d essential for any of sev eral reas ons, i n cluding, but not limited to, any one o r mo re of th e following: [¶] (A) The fu nction may be essential because the reason the posit ion
exists is to perform that functio n. [¶] (B) The function may be
essential bec ause of the limited number of emplo yees a v ailable among whom t h e p erformance of that jo b fun ction can be
distributed. [¶ ] (C) Th e function may be highly sp ecialized

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

es senti al includes, but i s not limited to the fol lo wing: [¶ ] (A) The employer ’ s judgment as to which functions a re es sential. [¶]

. . . [¶] (C) Th e a m ount of time spent on the job pe rfo rming t he functio n. [¶] (D) T he consequen ces of not requiri ng th e inc umbent to perform t he function. [¶]

. . . [¶] (G) The cu rrent

wor k experience of incumb en ts in similar job s

. ” (G ov. Code, § 12926, subd. (f).)

“ ‘ Whether a function is essential is e valuat ed on a ca se

- by

c ase basis by examining a numb er of factors. ’ ” ( D ’ Angelo v. Conagr a Foods, Inc. (11th Cir. 2 005) 422 F.3d 1 220, 1230 .) This
determination i s “ highly fact spe c ific. ” ( Hoskin s v. Oakland County Sh eriff

’ s Dept. (6th Ci r. 2000) 227 F. 3d 719, 726 ; see also
Lui

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

. Ana lysis On appe al, the City does not challenge th e jury ’ s findin gs that T homas suffered a disab il ity and that he su f fered an adverse employment action

. Rather, the only issue is w hether Thom as23

wa s a qualif

i ed individual who could perform the essential
functions of his job. In raising this ch allenge , th e City se ems to be maki ng a fac tual argument (i.e ., there is no evidence that Thomas could perform the essential functions o f his job) and a legal argument (i.e., pursuant to statute and case law, Thomas

c ould not perform the esse ntia l functions of a polic e officer as a
matter o f law)

. We address each in turn.

1

. Fact ual argument
As a ptl y noted by the t rial court in its order denying the City ’ s JNOV motion, Thomas presented substantial evidence that he was a qualified ind ividual able t o perform the essent ial
func t ions o f his job. There was evidence p resented at trial that
Thomas was cle ared to return to work. D r. Collins and Dr. Sima
both cleared Thomas to return to work in Spring 2009

. Fro m Dr. Wilson ’ s expert te stimony , th e j ury could reasonably infer
that Tho mas co uld have returned to work. And, D r. Jacks on, an orthopedic surgeon

, signe d a workers ’ compensation document authorizing Thomas to return to work as a po lice officer as of Augus t 14, 2009

. Eve n Dr. Cox conf irmed th at Thomas could
have worke d modifi e d duty as an officer in a primaril y sedentary position

. Urging us to conclude otherwise, the City directs u s to contrary testimony from Dr. C ox 12 and a note from Dr. Y uan, who

12 The jury wa s properl y i nstr u cted that it could believe all or part of a n expert and a layperson ’ s opinion

. It was also told that it could “ believe all, part, or none of a witness ’ s testimony. ” (S ee People v. L a ngle

y (19 74) 41 Cal.App.3d 33 9, 3 48 [ “ the trier of fact may reje ct a pa r t of the testimo ny of a witness while believing other portions of his testimo ny ” ].)24

did not testify at trial, that Thomas was perm anently disabled
and unabl e to perf

orm th e duties of a police o fficer. At best, the
C i ty offers evidence that conflicts from the evidence proffered by
Th omas. And it is well

- settled that a conflict in the evidence does not render it insubstantial. (See Stephens v. County of Tula re ( 2006) 38 Ca l. 4 th 793, 804 ; People v. Lawson (1952)

114 Cal.App.2d 217

, 219 [ “ it is not the province of this court to weigh c onflicting evidence ” ] .)
And th ere w as evidence of the essential functions o f his job

, functions that T homas cou ld perform

. 13 The re was am ple

te stimony th at there were light duty options for police officers.
There was an adm inistr ative floor th at Co stley could have assigned him to. He could have done projects that did n ot violate
his restrictions. He cou l d have worked in Veenstra ’ s office

. (Se e , e.g., Lui

, supra , 211 Cal.A pp.4th at p. 973 [no ting that not all police officer positions exist for the purpose of performing

st renuous d u ties].) Not surprisingly, the Ci ty dir ects us to contrary evidence,
includ ing MacArthur ’ s testimony that , amo ng oth er thi ngs, a police officer mu st be able to make f orcib le arrests, control suspects, and “ transport, book , and handcuff. ” But, as Veenstra testifie d, Thomas worked in the ARCON/PT unit; he did no t have

to make arre sts. Given that Thoma s wo rked at A RCON/P T , the ju ry co uld reasonably inf er that he did not have to engage in strenuous physical acti vities

. ( Contra

, Atkins v. City of

13 During Henderson’s and MacArthur ’ s testimon ies , the City tried to admit into evide nce document s l isti ng th e essential function s of a police officer . Th omas obje cted to the admission of th ese document s , and the trial court sustained the objection s

. The City does not challenge th e s e ev identiary ruli n g s o n app eal.25

Los A ngeles (2017) 8 Cal.App.5th 696, 718 [evidence established
that the es sential f

unc tions of a police rec ruit inclu ded rigoro us physica l dem ands].) In fact, d efense counsel highligh ted the functions of an
instruct o r d uring hi s closing argument: “ He ’ s an ins truc tor. ”
And instructors , who teach, demonstrate, and understa n d safety,

are “ ve ry usef

ul. ” D ef ense co uns el said n othing about
MacArthur ’ s description of the essential functions of a p olice
offi cer. Under these circumstances , t he jury was free to w eigh
th e conflicting evidence in making its determinat ion as to what
the essen tial fun cti ons of the job were and w hether Thomas could perform the m

. 14 Certainly Go vernment Code section 1031, su bdivision (f), requires that peace offic ers “ be free from any physical , emotional

, or mental condition that might adver sely aff ect the exercise of the

pow ers of a peace offic er. ” In lig ht of the e vidence that Thomas
was clear ed by his doctors to be a p olice officer, there is no
violat ion of this statute

.

2

. Legal argument Relying upon Raine v. City of Bur bank (2006)
135 Cal.App.4th 1 215 ( Raine ) ; Lui

, supra , 211 Ca l.App .4th 962 ; and Qui nn , su

pra , 84 Cal.App.4th 472

, t he City argues that
Tho ma s did not prov e that he could fulfill all of th e essen tial

14 While t he City criticizes the trial court for declining to consid er eviden ce first presente d i n its reply b r i ef in suppor t of the JNOV motion , it d oes not demons t rate , let a lone 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 The se cases

ar e readily d istinguishable

. Th e issue in Raine was whether an empl o yer who

“ reassi gns an employee to a temp orary light

- du ty position to
accommodate the em ployee ’ s injury [h as] an af firmative obligation under [FEHA ] to make that tempo r a ry light

- duty assignme nt availab l e inde finitely once the e mplo yee ’ s temporary disability becomes perman ent. ” ( Raine

, supra , 135 Cal.App.4th

a t pp. 1217

– 1218.) The Court of A ppeal held that th e answer was no; the permanent accommodation sought by the em pl oyee was unreasonab le as a matter of law. ( Id

. at p. 1218 .) That is not the
issue in t his case. Thom as is not arguing that th e City should
have made permanent the light dut y assign ment he so ught whil e recovering from knee s urgery

. In Lui , a police off

ic er who had suffered a major heart
attack retired from his posi tion after the police depa rtment

“ i nforme d him [ that ] there were n o adm inistrati ve positions
available that did n ot require him to perform t he strenuous physical activities regularly performed b y patrol officers in t he field. ” ( Lui

, supra , 2 11 Ca l.App .4th at p. 965.) The officer filed a
d isabil ity dis cri mination action , and the matt er proceeded to a court trial. (

Id . at p. 968.) T he trial court found in favor o f the defendant, and the plain ti ff

- employee appealed. ( Ibid .) T hus,

15 While this argument was raised in the City ’ s moti on for a directe d verdict and its JNOV moti o n , the City neve r asked that the j ury be instructed that Thomas had to prov e he could fulfill

c ertain physical functions. And

, as set forth above, t his argument was not pres ented to the jury in the City ’ s clo sin g argumen t

.27

“ the key i ssue on ap peal [was] whether th e record support[e d] the
trial court ’ s finding th at [certain st renuous duties were] essential
fu nctions of the adm inistrati ve p ositions sought by [the] plaintiff. ” (

Id . at pp

. 968

– 969.) Because the plai ntiff

- e mployee
did no t dem onstr ate that the trial court ’ s fin ding was

unsupp orted by the record or co ntrary to FEHA , the Court of Appeal affirmed th e judgment. ( Id

. at p. 969 .)
Just as in Lui , the issue here is whether the jud gm ent is supported by su bst antial e vidence. And, as se t for th a bove, it is. Nothing in L ui s tands for t he proposition that there are certain

e ssenti al strenuous job functions that a plaintiff m ust prove in order to establish a disability d iscrimination c la im , particularly
h ere where the j ury was not so instr ucted

. At best, an officer who is w ork ing fu ll dut y may be expected to perf orm essential strenuous job functions

, such as, for example , the functions identified by MacArthur during her testimony

. But a s several witne sses at trial ex pl a ined, there is a
difference b etween full duty and light duty ass ignmen ts. And

, T homas did not have to return to work full duty. O fficers are not expected to perform like full dut y officers when they are on light
d uty. F inal l y, in Quinn , the plaintiff , who suffered a significant
hear ing impairm ent, was hir ed as a poli ce off icer as the resul t of
a cle rical err or . ( Quinn

, supra , 84 Cal.App.4th at p. 475.) When
h is hea ring imp airment was disc overed, his employ ment was
term inate d. (

Ibid .) The plaintiff sued on the grounds that his
dis charge cons tituted ille ga l disabili ty dis crimination

. Aft er the def endant ’ s motion for a directed verdict was denied, t he matter

p roceed ed to t rial, and the jur y found in favor o f th e plainti ff. ( Ibid .) The defendant appealed, and the Court of Appe al re versed28

the judgment on th e grounds that t he “ plaintiff fai led to pro duce
evid ence on a critical element of his claim: his qualifi ca tion t o be hired as a police o fficer. ” ( Id . at p. 476.)
The City relies upon Quinn ’ s statement that the essential
duties of a police o fficer “ is a m a tter sole ly to be determined by

t he police d epartment itself. ” ( Quinn

, supra , 84 Cal.App.4th at

p. 482.) A t the risk of soun ding redund ant
, the parties pre sente d
evidence from LAPD officers as to what those duties were, and
Thom a s presented a m ple evidenc e that he was q ualified to perform them

. I I. A lleged j ury m isconduct
A. Standard of rev iew and r el e vant law Code of Civil Procedure s ection 657 p rovides that a verdict may be vacated and a new trial granted if jury misconduct

“ materi ally aff

ect[s] the substanti al rig hts of [ a] party. ” (Code
Civ. P ro c., § 657.)

“ In rulin g on a request for a new trial b ased on jury misconduct, the trial court must u ndertake a th ree

- step inquiry. [Citation.] First, it must determine whether the affi da vits

sup porting the motion a re adm issible. [Citation. ] If the evi den ce is admissible, the trial court must d etermine wh e ther the fa c ts establish misconduct. [Citation. ] Lastl y, as suming misconduct,
the trial court must determine whether the misc o nduct wa s prej udicial. [ Citations .] A trial co urt has broad discretion in ruling on each of these issues, and its rulings will not b e dis turbed absent a clea r abuse of d iscretion. ” ( Peopl e v. Dorsey (1995) 34 Cal.App.4th 694, 703

– 704. ) 16

16 H o ldings concer n ing j uror misconduct in criminal cases

may be applied in civil cases. ( People v. Hill (1992) 3 Cal. App.4th29 “ [ M ] isconduct c reates a presu mp tion of p rejudice which may be rebutted by a showing that no preju dice actually
occurred. ” (

People v. Von Vi llas (1992) 11 Cal. App.4th 175, 2 55

– 256.) “ Som e of the fac tors to be co nsidered when determining
whether the presumption is rebut t ed are the str en gth of th e evid enc e that misconduct occurr ed, the nature and serio usness of
the conduct, and the probability that actual prejudice may have

ensue d. ” ( Hasso n v. Ford Mo tor Co. (1982 ) 32 Cal.3d 388, 417.)

“ In determining whether ju ror m isco n duct occurred, ‘ [w]e

acce pt the tr ial co urt ’ s credibility determinations and findi ngs on questions of histor ical fact if supp ort e d by su b stantial evidence. ’ [Ci tations.] ” (

People v. Schmeck (2005 ) 3 7 Cal.4th 240, 294; Donovan v. Poway Unified School Dis t

. (2008) 167 C al .App.4th 567, 624

– 625.)

“ ‘ “ It is the tria l court ’ s function to re solve conflicts in the
evidence , to assess the credibi l ity of the declarants, a nd to
evalu ate the prej udicial effec t of the alleged misconduct

. . . . H owever, in reviewin g an order deny ing a motio n for new
trial based on jury misc onduct, as distinguished from an order granting a new trial on that ground , a r eviewing court has a

con stitutional obligation

. . . to revi ew the entire record, including the evidence, and to dete r mine independe ntly whethe r the act of
mi sconduct, if it occ urred, prevented the comp laining party from having a fair trial. [ Citations.] ” ’ [Citations.] This co urt must

un dertake a de novo re view to determine whether there was misconduct, and, if so, wh e ther that misc ondu ct ” was prejudic ial

to the appellant and requires reversal of the judgment. ( People v. Cumpian ( 1991 ) 1 Cal .App.4th 307 , 311.) “ Althou gh we

16, 37

– 38, fn. 8 , disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 5 82, fn. 5 .)30

in dependently review the r ecord u pon t he denial of a motion for new trial based on jury miscond u ct, we still g iv e deferen ce to the
trial court ’ s discreti ona ry determinations. ” ( Vomaska v. City o f San Diego (1997) 55 Cal .App.4th 905 , 912.)
B. Waiver
As set forth a bove, the tri al cour t fou nd that the City
waived its jury misconduct objection

. Thi s f i n ding is supported by ample evi dence. When the error cam e to everyone ’ s attention,
at no time did the City req uest a mistrial. The Ci t y did not object
to the trial court ’ s instruction that the properly seat ed jurors
deliberate an ew. And, i t d id not request further instructio ns after t he tr ial court gave its i nstruction to begin delibe rations

anew

. N ot until the jury gave its verdict f or Thomas a nd the City

w as diss atisf

ied with the result did the City file a motion for a
new tri al on the grou nd s of jury misconduct

. (See, e. g., Peopl e v. R ussell (2010) 50 C al .4th 1228, 1250 ; People v. Lewis (2009)
46 Cal.4th 125 5, 1308 .)
C

. Analysis
For the sa ke of co mplet eness, we tu rn to the me rits of the City ’ s argument. Assu ming without de ciding that th er e was jury misconduct,

we agree with the trial court that the presumption of prejudice
was rebutted. W h en the erro r was called to the tri al court ’ s
at tention , it immediately corrected the error by re placing the
alternate juror with t he correct juror and sendin g the correct juror s back to the ju ry roo m to deliberate

, with
Mr. Hernandez ’ s viewpoi nt to be conside red . We pre sume the jury foll owed t he trial court ’ s in struction, and “ there is not the slightest indicat ion in t h e rec o rd that t hey were unable to do so

. Wh ile the jury reached a verdict fairl y swi f t l y, this fact alone31

does not te nd to show p rejudice. ” ( Brassfield v. Moreland School
Dist. (2 0 0 6) 141 Ca l.App .4th 67, 74. ) As the error was not prejudi cial, reversal is not required. To the extent the City suggests tha t 13 jurors im properly
delibe rated , w e disagree. At no t ime did 13 j urors delib e rate. Befor e the jury left to deliberate for the first time, the trial cour t made clear that only 12 jurors were suppos ed to mak e the
decision

. There is no reaso n to think that the jury d id not co mply

w it h this direction, either the first time (with th e wron g alternate juror) or the second time (with the correct 12 jurors). Relying u pon Griesel v. Dart Indu stries, I nc. (1979)
23 Cal.3d 578, 583

– 584, o verruled on ot her grounds in Privette v. Superi or Cou rt ( 1993 ) 5 Cal.4th 689 , 6 96 , the City argues that
the t rial court c ommitted instruction al er ror because it did not
in struct the jury to disregard p rior d elib e rations. We disagree. By specifical ly telling the juro rs to “ [s]tart all over ag ain and t ake

a vote again, ” that is exactly what t he trial cou rt did. ( Griesel v. Dart Industries, Inc.

, s upra , at p. 584 ; see also Peop le v. Renteria ( 2001) 93 Cal.App.4th 552, 558 [jury must be instructed to disregard a ll past delibe rations and begin de liberatin g anew ] ; People v. Odle (1988) 45 Ca l.3d 386, 405

– 406 [ “ [ by ] in struc ting the jury to ‘ st art from scratch, ’ the court [properly] implied [ that] the jury should disregard previous deliberation ” ] , disa pprove d on other g round s in People v. Priet o (200 3) 30 Cal .4th 2 26, 256 .) In any event, “ there is no r ule of au tomatic reve rsal or

‘ inherent ’ p rejud ice applicable to any cat egory of civil
i nstruct ional error. ” ( Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 580.) “ A defen dant must also show that t he error
was pr ejudicial

. . . a nd resulted in a ‘ mis car riage of justice ’ [citation]. ” (

Pool v. Ci ty of Oakland (1986) 42 C al.3d 1051, 10 69 .)32

“ [I ]nstructional error is prejudic ial ‘ where i t seems probable ’ that
the error ‘ prejud icially af fec ted the verdi ct. ’ [Ci ta tion .] ” ( Soule v. General Motors Corp

. , su pra , 8 Cal.4th at p. 580. ) “ [W]hen
decid ing whether an error of instructional omiss ion was

p rejudicial, the c ourt must also evaluate (1) the state of the

ev idence, (2) the eff

ect of other instructions

, (3) the ef fect o f
counsel’s arguments, and (4) a ny in dicat ions by the jury its elf
that it was misled. ” (

Id . at pp

. 58 0

– 581

. ) Applying th ese facto rs, e v en if the t rial c ourt had err ed as the City asserts, that alleged error was n ot prejudicia l. T he juror s were in st ruct ed to “ [ s ] tart a ll over a gain. ” Throug hout th e init ial deliberation s, Mr. Hernandez was p res ent but silent

. But
duri ng the second delib e rations, he o pen ly expressed his viewpoints and opinions while Mr. Bi n d oy rem a ined quiet. There
is no indicatio n of a ny erro r. I I I

. Attorney fees
A

. Standard of r eview
W e review an order granting or den ying atto rney fees, as
well as the amount of a fee award, for a buse of discretion. ( Graciano v. Robinson F ord Sales, Inc. (20 06) 1 44 Cal .App.4t h
140 , 1 48.) Aft er all

, “ ‘ [t]h e “ experienced trial judg e is t he best judge of the value of professional services rendered in his court,
and while his judg ment is of course sub ject to review, it wil l not
be distu rbed unl ess the appellate court is con vi nced that it is
clear ly wro ng ” ’

— mea n ing that it abused its di screti on. ” ( PLCM
Grou p , Inc. v. Drexler ( 2000) 22 Cal.4t h 1084, 1 095.)

“ ‘ An abuse of dis c retion occurs only where it is show n that
the trial court exceed ed the bounds o f reason. [Ci tation.] It is a defer entia l st andard of review that re quires us to up hold th e trial

court ’ s determination, even if we disagree with it, so long a s it is33

reasonab le. [Ci tation.] ’ ” ( Bloxham v. Saldinger (2014)
228 Cal.App.4t h 729, 7 53.) “ We will reve rse the trial court ’ s dete r minati on only if w e find that ‘ in ligh t of all the evidence
viewed m ost favorably in support of the tria l court, n o judge could have reasonably reached a similar resul t. ’ ” ( Bates v. Presb yterian Intercommunity Hospital, Inc. (20 12) 204 Cal.App.4t h 210, 2 2 1.)
I n othe r word s, “ [w]e presume the fee app roved by the trial c o u rt is reasonable. ” (

Karton v. Ari D e sign & Co nstruction , Inc. (2021) 61 Cal.App. 5t h 734, 7 43.)
The burd en is on the party se eking attorney fees to prove that t he fees i t seeks are reaso nable. ( Gorm an v . Tassaj ara Development Corp

. (20 09 ) 178 Cal.App.4t h 44, 9 8.) It is also the

appe aling p arty ’ s bu rden to prove that the t rial court abused its
discretion. (

Ibid .)
B. Relevant law
The fee s etting i nquir y in Cal ifornia o rdinarily begins with
th e “ lod es ta r, ” name ly the number of hou rs re aso nably expended multipl ied by the reasonable hourly ra te. ( PLC M Group , Inc. v

. Drexler

, supra , 22 Cal.4t h at p. 1 095.) “ ‘ After the trial court has

p e r formed the cal c ulati ons [ of the lodestar], it shall consider
wheth er the total award so calculated under all of the circumstances of t he case is more th an a r easonable am ount and,
if so, shall reduce the [Civil Code] se ction 1717 awa rd so that it is

a r easonable figure. ’ ” ( PL CM G roup , Inc. v. Drexler, a t p p. 1095

– 1096.) In de termin ing “ reasona ble ” c ompensation, t rial cou r ts

m ust carefully rev iew attorney docu mentation of hours expended;

“ padding ” in the form of ineff icient or duplicative e fforts is not subj ec t to compensation. ( Ke tchum v. Moses (2001) 2 4 Cal. 4t h
1 122, 1132.)34 In ad justing the lodestar figure, the tria l c ourt makes its
determi nation after cons ideration of a numb er of factors, including the n ature of the litiga tion, its diff iculty, the amount
i nvolved, the skill re qu ired in its handling, th e skill e mploye d,
the attent ion given, t he success or f ailur e, an d o ther circumstances of the case. ( Melny k v. Robl edo (1976)
64 Cal.App.3d 618, 623

– 624 .) Our Supreme Court has never

“ car ved the factors used [to calculate the lo de star] into concrete

or b arred con sidera tion of other relevant an d non dup licative fac tors; no r have the courts of a ppeal sought to d o so. ” ( Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4t h 1 9, 40
, fns. omitted .)
The value of legal servi ces per formed in a case is a matt er in whi ch the trial court has its own ex perti se. ( M elnyk v.
Robledo

, su

pra , 64 C al.App.3d at p. 623.)
C

. Analysi s The Cit y has not met its burden of demonstrating that the
trial court abu sed its discre tion. The trial court re duced the fee
award from t he reques t ed am o unt ($3,081,273) to the lodest ar

amoun t ($1,849,300) and the n app lied a 1.25 multiplier to a rrive

at a total of $2,311,662. 50. Its reasons for doing so are m ore than sufficiently explained in its detailed order.

1. Alleged fees relate d t o the 201 4 mist rial
R ely ing upon K

napton ’ s expert declar ation , the City argues
that the t rial cou rt erroneously awarded Thom a s fees incurred in
connection with the 2014 trial that ended in a mistrial. Because
th e mi strial was the result of Th omas ’ s counse l ’ s “ malf ea sanc e, ”

couns el shou ld not be entit led t o reco up these fees.
While the trial court seems to ha ve rejected this legal argument in its order , the C ity cannot establish that these f ees35

were actually awarded to Tho mas. “ ‘ [ I ]t is inc umbent on th e
pa rty who i s diss atisfied w ith t he court ’ s ca lculation of t h e numbe r of allowable ho u rs to reque st specific findings. ’ ” ( Taylor
v. Nabors Drillin g USA (2014 ) 222 Cal.App.4th 1228 , 1250.) But the City failed to request speci fic fin dings; thus

, the City c ann ot

c on c lu sively establish, and we c annot find, that any f ee s that arguably should not have been award ed were in fa ct awarded. 17

2. Fees relate d to the Thomas II claims The City further argues that Thomas cannot recover fees
for t he 110.6 hours involving t h e Thomas II m o tion to di smiss
and 371.9 hours regar ding “ e vents and proceedings ” exclusively
directed at Thomas II

. A gain, d ue to the lack of specif icity in the trial court ’ s order, the City cannot demonstrate that Thomas was awa rded

at torney fees for hou rs expen d ed reg arding Thomas I I

. All we
kn ow is that the trial court did awar d plaintiff a reduced fee
award gi v en his success on h is disability discrimination claim

appro ximately 10 years a fter he suffered his kne e inju ry.

3. M ultipl ier The City argues t hat t he trial court erred i n app lying a

m ultiplier to the lod estar figure. We find no abuse of d iscretion

. In awarding atto rney fees, t he trial court expressly relied upon Ke tchum v. Moses

, supra , 2 4 Cal. 4th at page 113 2
, whic h reaffirmed th at a trial court may emplo y a mu ltiplier “ based on

17 In its reply brief, t he City acknowledges t hat t he t rial

“ cour t reduced hours to the total fee award to 60 % o f the hours

r equested with only a cou ple of small e xceptions

. ” Because of

“ the g lobal reduction in fees, ” the City asks that “ the sp ecific fees addressed [in its appea l be] s i m i larly reduced

. ” For the reasons set forth herein, we decline to do so.36

fact ors in cluding

. . . the extent to which the nature of t he litigation precluded other employment by the attorneys ” and “ the

co ntingent n ature of the fee award. ” ( Ke tchum v. Moses

, supra , at

p. 1132.) I t th en wen t on to e xplain why t hose two factors weighed heav ily here, including the fact that Thomas ’ s “ couns el expended resources in this matter without receiving any compensation for ove r te n years. ” Be c ause Thomas de monstrated
that coun se l “ to ok on a considerabl e d egree of ris k by litigating
this c ase on a con tingency basis ” and “ advanced costs a nd spent a
lot of time on the case while deferring any compensation and risking no compensation, ” it aw arded a r educed multi plier of
1.25 , large ly beca use of “ the conting enc y nat u re of th e
repr esentation

. ”
There was no abuse of discretion.

D ISPOSITION
The judgment and order are affirmed

. Tho mas is entitled

to costs on appeal

. NOT TO BE PUB LISHED IN T HE OFFICIAL REPORTS

.

_ ____________

____ ____, J. ASHMANN

- GER ST
We con cur:

_ _ __ ____________________, P. J.
LUI

______ ________ __ _ _______, J.
HOFFSTADT