Flannery

The question presented is to whom, as between attorney and client, attorney fees awarded under Government Code section 12965 (hereafter section 12965), 1 part of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), belong when no contractual agreement provides for their disposition. We conclude that, absent proof on remand of an enforceable agreement to the contrary, the attorney fees awarded in this case belong to the attorneys who labored to earn them.

Background

The Court of Appeal adequately stated the relevant facts. Plaintiff Leslie Flannery sued her former employer, the California Highway Patrol (CHP), *576 alleging violations of FEHA. The jury awarded plaintiff $250,000 in damages. The trial court awarded $1,088,231 in attorney fees, expressly basing the award both on Government Code section 12965, subdivision (b) and on Code of Civil Procedure section 1021.5. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632-633 [ 71 Cal.Rptr.2d 632 ] (Flannery I).)

On appeal by the CHP, the Court of Appeal concluded that the fee award was improper insofar as it was based on Code of Civil Procedure section 1021.5 and that,…

In clear and unequivocal language, Government Code section 12965, subdivision (b) authorizes courts to award reasonable attorney fees “to the prevailing party” in civil rights actions brought under the Fair Employment and Housing Act. 1 According to the majority, however, the statute does not mean what it says: “prevailing party” does not *592 mean prevailing party but prevailing lawyer. That construction ignores the plain language of the statute as well as persuasive United States Supreme Court precedent construing virtually identical language in the federal civil rights law. Therefore, I dissent.

I.

I begin with a brief discussion of the circumstances leading to the California Legislature’s enactment of the attorney fee provision at issue here.

“In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” (Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240, 247 [ 95 S.Ct. 1612, 1616 , 44 L.Ed.2d 141 ] (Alyeska Pipeline), italics added.) This is known as the “American Rule,” to distinguish it from the practice in England where “for centuries . . . there has been statutory authorization to…

The question presented is to whom, as between attorney and client, attorney fees awarded under Government Code section 12965 (hereafter section 12965), [1] part of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), belong when no contractual agreement provides for their disposition. We conclude that, absent proof on remand of an enforceable agreement to the contrary, the attorney fees awarded in this case belong to the attorneys who labored to earn them.

The Court of Appeal adequately stated the relevant facts. Plaintiff Leslie Flannery sued her former employer, the California Highway Patrol (CHP), alleging violations of FEHA. The jury awarded plaintiff $250,000 in damages. The trial court awarded $1,088,231 in attorney fees, expressly basing the award both on Government Code section 12965, subdivision (b) and on Code of Civil Procedure section 1021.5. ( Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632-633 , 71 Cal.Rptr.2d 632 ( Flannery I) .)

On appeal by the CHP, the Court of Appeal concluded that the fee award was improper insofar as it was based on Code of Civil Procedure section 1021.5 and that, insofar as it…