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January 2012

Gordon & Rees Employment Team Obtains Appellate Victory in Discrimination Case

San Francisco Partners Mike Lucey, Mike Laurenson, Don Willenburg, and Sacramento Partner George Acero recently prevailed in an appeal in Hernandez v. Regents of the University of California.  Plaintiff Hernandez is a former U.C. Berkeley assistant professor who was terminated following her mid-career review based on her poor prospects for tenure.  The jury rejected the plaintiff's contention that she been discriminated against based on her race and denied a disability accommodation, as she claimed, but found that she was entitled to recover on other claims.  Despite this partial success, the trial court precluded the plaintiff from recovering a significant amount of her attorney's fees and ordered her to pay the expert fees of Gordon & Rees's client (the University) because the jury's verdict was less than a Code of Civil Procedure § 998 offer served by the University a year before trial.  The trial court also denied the plaintiff's post trial motion to be reinstated as a professor.  The plaintiff appealed these rulings.  The Court of Appeal agreed with the University on all points and affirmed the trial court's rulings in full.

In upholding the trial court's decision not to reinstate the plaintiff, the Court of Appeal found that her "lack of qualifications and failure to meet the University's standards and expectations for scholarly and creative production" justified the decision.  In affirming the trial court's decision to reduce the plaintiff's attorney's fees and require her to pay the University's expert fees, the Court of Appeal found that the provisions of Code of Civil Procedure § 998 applied and rejected the plaintiff's argument that the public policy in favor of anti-discrimination claims should make § 998 inapplicable in discrimination lawsuits.

The decision highlights two important points.  First, a well-considered § 998 offer can save a client a lot of money.  In this case, the plaintiff's attorney lost hundreds of thousands of dollars in attorney's fees and was also required to pay $50,000 in expert fees.  A second important lesson relates to appellate practice.  Here, the plaintiff failed to procure an adequate record on appeal.  This fact made it easy for the Court to deny the appeal.  While appeals can be expensive, by cutting corners, the plaintiff's appeal on the reinstatement issue was doomed from the start.  When there is doubt on how to proceed on an appeal, it is wise to consult a seasoned appellate lawyer.


Michael A. Laurenson
Don Willenburg