Labor & Employment Law Daily Wrap Up, ATTORNEYS’ FEES—Cal. App.: Employee improperly granted attorneys’ fees despite lack of success on whistleblower claim, (Jul 10, 2025)

By Ronald Miller, J.D.

A defendant may establish a same-decision defense by proving it would have taken the same action for “legitimate, independent reasons,” even if the plaintiff had not engaged in the protected whistleblowing activity.

Because an employer established an affirmative defense under Labor Code Section 1102.6, by proving that alleged retaliatory action “would have occurred for legitimate, independent reasons” had the employee not been a whistleblower, the employee’s action was not successful and he was not entitled to attorneys’ fees, ruled a California Court of Appeals. Labor Code Section 1102.5 prohibits employers from retaliating against whistleblowing employees and allows successful employees to recover attorneys’ fees. Here, the employer proved that it would have taken the same action despite the employee’s whistleblowing, but the trial court granted the employee attorneys’ fees. The appeals court held that the employee’s action was not successful within the meaning of section 1102.5 (Lampkin v. County of Los Angeles, No. B336806 (Cal. App. July 8, 2025)).

Police stop. The employee, a deputy with the Los Angeles County Sheriff’s Department, stopped to investigate a man on suspicion of soliciting a prostitute. The man turned out to be a retired deputy sheriff having lunch in his car with his long-term girlfriend. According to the employee, the retired deputy showed the employee his badge and warned him that he still had connections at the department. According to the retired deputy, the employee threatened him after making a crude and sexual remark in front of his girlfriend.

Later, the employee reported the interaction to his supervisor. And the retired deputy complained to the sheriff’s department about the stop. According to the employee, the retired deputy’s friends then instigated various retaliatory actions against him, including a suspension, a search of his residence, and termination of medical benefits.

Lawsuit. On August 22, 2017, the employee filed a complaint alleging a single cause of action for whistleblower retaliation against the employer. A jury found that the employee had engaged in activity protected by Labor Code Section 1102.5, and that activity was a factor in the actions against him. However, the jury also found that the sheriff’s department would have made the same decisions anyway, for independent and legitimate reasons. Therefore, the jury awarded no damages.

Attorneys’ fees. Thereafter, the employee filed a motion for an order declaring him the prevailing party under Harris v. City of Santa Monica (2013) 56 Cal.4th 203, which holds that a same-decision defense does not preclude a fee award in the context of FEHA. The trial court agreed that Harris extends to suits under Section 1102.5 and granted the employee’s motion. On March 8, 2024, the trial court awarded the employee $400,000 in attorneys’ fees. The employer appealed.

Successful action. The employee claimed attorneys’ fees under Section 1102.5, subdivision (j). However, the employer argued that he was not entitled to an award of attorneys’ fees because he did not bring a “successful action” as required by Section 1102.5, subdivision (j).

Whistleblower statute. As a whistleblower protection statute, Section 1102.5 prohibits an employer from retaliating against an employee when the employee discloses a violation of the law and allows an employee who “brings a successful action” under that section to recover their attorney’s fees.

The employee argued he brought a successful action because he proved a violation of Section 1102.5. For its part, the employer argued that he was not successful because it avoided ultimate liability by establishing a same-decision defense under Section 1102.6.

Same-decision defense. Here, both parties met their respective burdens. The employee proved the elements of the claim, but the employer in turn proved its same-decision defense. It was undisputed that this defeated the employee’s claim for money damages. However, there is no authority that directly discusses a request for attorneys’ fees in this scenario. And the California Supreme Court held in Harris that a same-decision defense would not defeat a claim for attorneys’ fees. The employee asked the court to extend Harris to this context.

The appeals court declined to do so. Harris arose out of a trial court’s failure to instruct a jury on the same-decision defense in a sex discrimination suit brought under FEHA. Harris did not govern here for several reasons. First, Harris did not involve a procedural situation like this one. In this case, the employee failed to obtain any relief and nevertheless recovered attorneys’ fees.

Second, the then-operative provisions of FEHA allowed a court to award attorneys’ fees and costs “in its discretion... to the prevailing party.” Section 1102.5, subdivision (j) does not: fees are only available to “a plaintiff who brings a successful action.” Third, the broader statutory language and structure of FEHA is different from the applicable Labor Code provisions. Finally, Harris itself warns against analogizing FEHA to section 1102.6.

Section 1102.6 is the “complete set of instructions” for handling claims under Section 1102.5. Where the complete set of instructions provides for a defense and does not limit its reach, the natural inference is that no such limitations exist.

Because the employee did not obtain any relief under Section 1102.6, he did not bring a “successful action” within the meaning of Section 1102.5, subdivision (j). Accordingly, he was not entitled to an award of attorneys’ fees.

The case is No. B336806.

Judge: Zukin, H.

Attorneys: Nohemi Gutierrez Ferguson (Gutierrez, Preciado & House) for County of Los Angeles. Leila Al Faiz for D’Andre Lampkin.

Companies: County of Los Angeles

Cases: AttorneysFees Whistleblowers Retaliation RemediesDamages CaliforniaNews