California Court Declines to Award Attorney’s Fees to a Whistleblower

A California Court of Appeals recently overturned an award of attorney’s fees to a plaintiff in a whistleblower retaliation case. The court made this decision despite the jury finding the plaintiff proved his retaliation cause of action. The reason was the jury also found for the employer on its “same-decision” affirmative defense.

California Labor Code Section 1102.5 prohibits an employer from retaliating against an employee because the employee discloses a violation of law. Section 1102.6 sets out the procedure for determining liability. First, the plaintiff must prove that retaliation was a “contributing factor” to an employment decision. If he succeeds, the employer may negate the retaliation by proving with clear and convincing evidence that legitimate independent reasons would have also led to the same decision. In Lampkin v. County of Los Angeles, 112 Cal. App. 5th 920, 931 (2025), that is exactly what happened.

At trial, the jury found both that retaliation was a contributing factor to Lampkin’s employment action, and the employer successfully proved the “same-decision” defense. Following the verdict, the plaintiff filed a request for payment of costs and attorney’s fees according to Section 1102.5(j) which allows for reimbursement to a plaintiff “who brings a successful action.” The employer opposed the request arguing that Lampkin was not “successful” because it proved its defense. The trial court disagreed and awarded Lampkin his costs and fees.

The Court of Appeal overturned the trial court’s decision. According to the appellate court, Lampkin was not successful because he did not obtain any relief in the case. The employer’s success in proving its affirmative defense negated any relief Lampkin could have obtained. Therefore, he was not entitled to reimbursement of his attorney’s fees and litigation costs.

This case is a reminder to employers to consider the “same-decision” defense when faced with whistleblower retaliation claims. More importantly, employers must prepare ahead of time for the defense. When considering termination of an employee who has brought complaints, it is imperative to document all reasons to support the decision. You never know when it will be necessary to prove that you would have made the same decision despite the employee’s legally-protected status.

A copy of Lampkin v. County of Los Angeles can be found here.

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