Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 127 And in one case, in which the plaintiffs’ attorneys had won a class action judgment against an employer in the amount of $90 million, the Court of Appeal permitted disgruntled class members to sue these highly successful plaintiffs’ attorneys for malpractice, on the ground that they had failed to bring yet an additional claim for still more money . 457 5.16.3 No guarantee that plaintiffs need ever pay costs In America generally, frivolous litigation faces some deterrent because a plaintiff who loses a lawsuit must pay not only the plaintiff’s own litigation costs but also the defendant’s litigation costs (as well as the defendant’s attorney fees, in rare circumstances). In California it’s different. California creates no guarantees that the plaintiff who files a bad lawsuit will ever have to pay anything. As to the prevailing defendant’s costs, California courts have held that in certain circumstances the plaintiff is liable for costs only if the plaintiff has the ability to pay . 458 And in 2018 the Court of Appeal extended this pro-plaintiff doctrine still further, holding that a defendant can recover expert witness fees under the FEHA only upon showing that the FEHA claim was objectively baseless. In so ruling the Court of Appeal held that the FEHA’s pro-plaintiff protections trumped the general rule that would enable a trial court to award defendants expert witness fees when they had offered to settle for an amount less than the verdic t. 459 And California permits a plaintiff to sue while secure in the knowledge that even the losing plaintiff’s own costs will be paid by someone else. Various states historically have recognized causes of action (e.g., champerty, maintenance) that can put a party at risk for financing litigation. State bar rules in other states have limited the ability of lawyers to engage in that financing. In California it’s different. California does not discourage financing litigation and its state bar rules do not restrict a lawyer from agreeing to advance expenses of a client and even waiving the right to repayment if the client fails to obtain any recovery. A Formal Opinion by the Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association, citing the California Rules of Professional Conduct, ruled that it is permissible for a law firm to cover a client’s litigation costs and to forgive repayment if the client loses . 460 And a member of a California-certified plaintiff class need not worry about potential liability for costs in deciding whether to opt out of the class: absent class members cannot be held liable for the defendant’s costs if the defendant wins the lawsui t. 461 5.16.4 Deficient jury instructions often wrongly favor plaintiffs The California Judicial Council has commissioned standard jury instructions, such as the California Civil Jury Instructions (CACI), that have misstated the law to the plaintiff’s advantage. Courts have corrected some of these mistakes, by  rejecting a standard jury instruction that permitted retaliation plaintiffs to prevail simply because their protesting activity was a motivating reason for their discipline, even in the absence of retaliatory intent , 462  rejecting a standard jury instruction that permitted discrimination plaintiffs to prevail where, notwithstanding the presence of some discriminatory motive, the plaintiff would have experienced the same adverse employment action even in the absence of discrimination , 463 a nd  holding that a trial court erred in refusing to give a “business judgment” jury instruction that the defendant had submitted. The defendant had proposed a nonstandard instruction, which read: “You may not find that Lucasfilm discriminated or retaliated … based upon a belief that Lucasfilm made a wrong or unfair decision. Likewise, you cannot find liability for discrimination or retaliation if you find that Lucasfilm made