Pollak, Vida & Barer

In Lampkin v. County of Los Angeles, published July 8, 2025, the Second District Court of Appeal, Division 1 reversed a trial court order granting the plaintiff his attorney fees.  The plaintiff, a county employee, sued the county for whistleblower retaliation under Labor Code section 1102.5. He sought only damages.  The jury found that the employee proved retaliation for whistleblowing.  But it also found that the employer would have taken the same actions against him for legitimate and independent decisions.  The jury therefore awarded no damages.  The plaintiff then moved to amend his complaint to add a request for injunctive and declaratory relief.  The trial court denied the motion.  The plaintiff then moved for a order declaring him to be a prevailing party, relying on case law holding that a same-decision defense does not preclude a fee award in the context of FEHA.  The trial court agreed that the law applies to section 1102.5 suits, and awarded the plaintiff his attorney fees.

The appellate court held that the trial court erred.  Section 1102.5(j) authorizes the trial court to award reasonable attorney fees to a plaintiff who brings a successful action for violation of section 1102.5.  Section 1102.6 provides a complete set of instructions for the presentation and evaluation of evidence in section 1102.5 cases.  The plaintiff has the burden of proving he engaged in protected whistleblower activity and that the activity was a contributing factor in the employer's decision to take some action against him.  The defendant may then attempt to establish that it would have taken the same action for legitimate independent reasons.  That defeats the claim for money damages.  Since the plaintiff's complaint did not seek relief other than money damages, the plaintiff did not bring a successful action, and so was not entitled to attorney fees.  FEHA case law is not applicable, because FEHA allows the court to award fees to a "prevailing" plaintiff, while section 1102.5 requires that the plaintiff bring a "successful" action.  FEHA's broader statutory language and structure is also different from the applicable Labor Code provisions, which prescribe that a same-decision defense bars a damages claim.