Bonnie Ducksworth and Pamela Pollock were customer service representatives at Tri-Modal Distribution Services. Tri-Modal promoted others but, for decades, never promoted them. Ducksworth and Pollock believed this was due to discrimination against African-Americans. They sued.

In 2018, Pamela Pollock also sued her supervisor Michael Kelso for sexual harassment and, on grounds of race, refusing to promote her. Pollock alleged Kelso asked her for sexual intercourse in 2016 and, after she rejected him, he promoted five less qualified people of other races to positions she sought.

The trial court ruled Pollock’s suit was time-barred. In 2020 the Court of Appeal affirmed. (Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532.) The case implicated employer Tri-Modal, but it was not involved in this appeal.

In 2021, the Supreme Court reversed and rendered three holdings. First, the statute of limitations in this type of case begins to run when plaintiffs knew or should have known of the adverse promotion decision. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 941.) Second, the defense bears the burden on this issue. (Id. at p. 947.) Third, under the Fair Employment and Housing Act, an appellate court may not award costs or fees on appeal to a prevailing defendant without first determining that plaintiff’s action was frivolous, unreasonable, or groundless when brought, or that plaintiff continued to litigate after it clearly became so. (Id. at pp. 947–951.)

Following the Supreme Court’s directions, in 2021 the Court of Appeal remanded and ordered costs for Pollock. In the trial court, Pollock moved for $526,475.63 in attorney fees under subdivision (c)(6) of Government Code section 12965 in late 2021. In March 2022, the trial court awarded $493,577.10. Kelso filed his notice of appeal. In February 2023, Kelso and Pollock settled the bulk of their case. Pollock moved to dismiss her underlying case with prejudice, except for the attorney fee award that Kelso was appealing.

The Court of Appeal approved the trial court award of costs in the published case of Pollock v. Kelso -B320574 (January 2025).

Kelso argues that, first, Pollock was not a prevailing party, and second, the award was too high.

When the trial court set a trial date and it grew near, Kelso decided to settle. Kelso declines to lodge the “confidential” settlement agreement with this court in camera, which Pollock’s counsel maintains expressly identifies Pollock as the prevailing party. At oral argument, Pollock’s attorney brought the settlement document to counsel table, but Kelso’s appellate attorney claimed she had never seen it. She declined to view it. Kelso’s reluctance, and Pollock’s willingness, reveal that Pollock won something tangible. Pollock’s gain postdates the trial court’s fee award, but it has significance for this appeal: the case is over and, as a practical matter, the time is ripe to consider a fee award.

The Court then turned to issue number two: the size of the award and noted “Kelso maintains the amount of the trial court’s fee award – $493,577.10 – is unreasonable. The court abused its discretion, Kelso asserts, by failing to apportion the award among “the defendants involved in the appeal.” Kelso, however, fails to identify who these other defendants were, how their issues might have been different from Kelso’s, and in what degree. Kelso forfeited this argument by failing to elaborate his argument in meaningful detail in his opening brief. It is not fair for Kelso to ask this court to spell out the particulars of his vague argument. His approach, were we to indulge it, would not give Pollock reasonable notice of the thrust she must parry.”

The opinion reviewed the evidence submitted and arguments made to the trial court that computed the attorney fee in great detail. It reviewed case law that established the proposition that “trial judges are in the best position to evaluate attorney fee awards.”

Ultimately the Court of Appeal affirmed the trial court.

Court Rules on FEHA Fees After Trip to Supreme Ct and Settlement