Harold Winston is “an African-American male” with “over 30 years of service” with the County of Los Angeles. Winston worked in the Department of Treasurer and Tax Collector as the supervising deputy public conservator administrator in the public administration branch.

Winston sued his employer L.A. County alleging race-based discrimination, retaliation, and failure to maintain a discrimination free environment under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and whistleblower retaliation in violation of Labor Code section 1102.5.

While Winston’s case was pending, Labor Code section 1102.5 was amended, effective January 1, 2021, to add a provision – subdivision (j) – authorizing courts to award reasonable attorney fees to whistleblower plaintiffs who prevail against their employer under section 1102.5.

Trial began on November 17, 2021. On November 24, 2021, the jury returned a verdict on the three causes of action submitted to them. It found in favor of L.A. County and against Winston on the causes of action for retaliation under FEHA and failure to prevent discrimination/ harassment under FEHA. The jury found in Winston’s favor on his cause of action for whistleblower retaliation under section 1102.5. It awarded him damages totaling $257,000.

After the jury found in Winston’s favor on his retaliation claim under section 1102.5, Winston filed a motion for attorney fees and requested $1,854,465 as the prevailing party based on section 1102.5’s recently enacted subdivision (j).

The trial court denied the motion, ruling that the fee provision does not apply to Winston’s case because it was not in effect in 2019 when the complaint was filed and because it found no legislative intent supporting retroactive application.

The Court of Appeal reversed in the published case of Winston v. County of Los Angeles – B323392 (December 2024).

On appeal, Winston argued section 1102.5, subdivision (j) applies to his case “because [his] case was still in action at the time the provision became effective.” He contends the trial court erroneously denied his motion based on “no legislative intent demonstrating retroactive application of [the statute].” The Court of Appeal agreed with Winston and reversed.

The law invoked here, section 1102.5, is “California’s general whistleblower statute.” When Winston filed this case, section 1102.5 did not include a one-way fee-shifting provision “authoriz[ing] an award of attorney fees to a worker who prevails on a claim of retaliation for blowing the whistle on workplace legal violations.” The California Legislature amended the law by passing Assembly Bill No. 1947, which allows discretionary recovery of reasonable attorney fees to a prevailing whistleblower plaintiff.

Effective January 1, 2021, section 1102.5, subdivision (j) provides: “The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” (§ 1102.5, subd. (j).)

Under California law, the general rule is that absent a clear, contrary indication of legislative intent, courts interpret statutes to apply prospectively. However, “the California Supreme Court and many, many Courts of Appeal have treated legislation affecting the recovery of costs, including attorney fees, as addressing a ‘procedural’ matter that is ‘prospective’ in character and thus not at odds with the general presumption against retroactivity.” (USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 217-218)

“Neither party points to a California decision directly addressing the issue of whether section 1102.5, subdivision (j) applies to cases pending at the amendment’s effective date and we have found none.”

“We conclude the statute authorizes an award of attorney fees to Winston because his action was pending when section 1102.5, subdivision (j), became effective. For that reason, we reverse.”

 New L.C. Whistleblower Attorney Fee Law Applies to Pending Cases