Full opinion text
MEMORANDUM DECISION RE: POST-TRIAL MOTIONS (Docs. 424, 425) OLIVER W. WANGER, District Judge. I. INTRODUCTION. This case arises out of Plaintiffs former employment at the Kern Medical Center, an acute care teaching hospital owned and operated by the County of Kern, California. Plaintiff David F. Jadwin, D.C. (“Plaintiff’) claimed, among other things, that the County and its employees retaliated and discriminated against him in contravention of federal and state law. The employment issues were tried before the Court and a jury from May 14, 2009 to June 4, 2009. On June 5, 2009, the jury returned verdicts in favor of Plaintiff. On August 4, 2009, Findings of Fact and Conclusions of Law were issued on the claims tried to the court alone. On May 4, 2010, Final Judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on his civil rights claim. At trial, Plaintiff requested over $4.2 million in economic damages. Before the Court for decision are several post-trial motions. Plaintiff has moved to amend the judgment to incorporate his bill of costs and for prejudgment interest. He has also moved to recover $3,944,818.00 in attorneys’ fees pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3) and California Government Code § 12965. Defendants have moved for a new trial under Rule 59(e) and, separately, to amend the judgment to reflect to reflect the dismissals of several individually-named defendants. Oral argument on these motions was held on July 28, 2010. The Court, pursuant to Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir.2008), a Ninth Circuit case establishing the rules for evaluating an attorney’s fee request under 42 U.S.C. § 1988, directed Plaintiff to supplement, organize, and refine his motion for attorneys’ fees. In particular, it was determined that Plaintiffs counsel’s documentary evidence concerning the hourly rates and tasks performed was materially nonspecific and limited the district court’s ability to meet Moreno’s exacting and mandatory standards imposed on district judges for calculating fee awards. See id. at 1111 (“[w]hen the district court makes its award, it must explain how it came up with the amount. ”) (emphasis added). Plaintiff filed his supplemental and reply briefs, more than 500 pages of argument and billing information, on August 16 and September 16, 2010. Defendants opposed the supplemental motion on September 3, 2010. The motions are now submitted for decision. II. BACKGROUND. The relevant facts and procedural history are summarized in the Court’s previous Memorandum Decisions in this case, filed on April 8, 2009 and March 31, 2010, in brief: In this employment case, trial commenced on May 14, 2009 and concluded on June 5, 2009. The jury returned verdicts, entered on June 8, 2009, in favor of Plaintiff. (Doc. 384.) The jury found that Defendant County: (1) retaliated against Plaintiff for engaging in certain activities in violation of the Family and Medical Leave Act (“FMLA”) and the California Fair Employment and Housing Act (“FEHA”); (2) retaliated against Plaintiff for taking medical leave under the FMLA and the California Family Rights Act (“CFRA”); (3) discriminated against Plaintiff on the basis of his mental disability in violation of the FEHA; (4) failed to reasonably accommodate Plaintiffs mental disability in violation of the FEHA; and (5) failed to engage in an interactive process with Plaintiff in violation of the FEHA. The jury found against the County on its defense that Plaintiffs employment contract was not renewed by reason of his conduct and alleged violation of the employer’s rules and contract requirements and/or that Plaintiffs improper behavior was the cause of the nonrenewal of his contract. The jury awarded damages as follows: Mental and emotional distress and suffering. $ 0.00 Reasonable value of necessary medical care, treatment, and service received to the present time. $ 30,192.00 Reasonable value of necessary medical care, treatment and services which with reasonable probability will be required in the future. $ 0.00 Reasonable value of earnings and professional fees lost to the present time. $321,285.00 Reasonable value of earnings and professional fees with which reasonable probability will be lost in the future. $154,080.00 Total damages $505,457.00 Certain claims were not submitted to the jury, specifically, Plaintiffs claim for interference with his rights under the FMLA/CFRA and a deprivation of Plaintiffs due process rights under the Fourteenth Amendment (made actionable by 42 U.S.C. § 1983). On August 4, 2009, Findings of Fact and Conclusions of Law were issued on those claims. As to the FMLA/ CFRA claim, it was determined that Plaintiff lacked standing to assert his claim or, arguendo, assuming standing existed at the time of the operative pleading, the claim was moot. As to the procedural due process claim, it was determined that Plaintiffs due process rights were violated and he was awarded nominal damages. On May 4, 2010, Final judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on Plaintiffs due process claim, and any costs as permitted by law. On May 28, 2010, Defendant filed two post-trial motions. The first, to amend the Final Judgment to incorporate the dismissals of several individually-named defendants. (Doc. 414.) According to the County, these individually-named defendants are “prevailing parties” in this action and are entitled to recover their costs of suits. The motion concerns the following individually-named defendants, who were named in the original and first amended complaint: Dr. Eugene Kereher, Dr. Jennifer Abraham, Dr. Scott Ragland, Dr. William Roy, Dr. Irwin Harris, Toni Smith and Peter Bryan. Defendant’s second post-trial motion was for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Doc. 415.) The County argues that Ninth Circuit case law mandates a new trial based on Plaintiffs counsel’s wrongful misconduct during trial. Plaintiff also filed two post-trial motions. On May 28, 2010, Plaintiff moved to amend the Final Judgment to incorporate in the final judgment, prejudgment interest and his recoverable costs. (Doc. 424.) On June 1, 2010, Plaintiff moved for attorney’s fees of $3,944,818.00 pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3), Cal. Gov’t Code § 12965, and E.D. Local Rule 54-293. (Doc.425.) Oral argument on the post-trial motions was held on July 28, 2010. At the conclusion of the hearing, it was determined that supplemental briefing and specific justification was necessary to resolve the motions for prejudgment interest and attorney’s fees. (Doc. 450.) Opening supplemental briefs/oppositions on these issues were filed on August 6, 13, 16, and 18, 2010. (Docs. 444, 447-49.) The final opposition and reply briefs were filed on September 3 and 16, 2010. (Does. 450 and 451.) III. DISCUSSION. A. New Trial Motion 1. Introduction and Argument The County moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. The County argues that there are several independent reasons to grant a new trial, including: the intentional attorney misconduct of Plaintiffs counsel, Mr. Eugene Lee, during trial; Mr. Lee’s repeated use of the word “demotion” in violation of an in limine order and despite numerous admonitions during trial; Mr. Lee and his co-counsel’s inappropriate gesturing, mocking, and disruptive behavior at Plaintiffs counsel table in the juries’ presence during trial; Mr. Lee’s interference with the County’s attempt to evaluate Plaintiff during discovery; and Mr. Lee’s intentional “blurring” to the jury of Plaintiffs employment-based claims, which allegedly resulted in an erroneous award of “front pay” and a violation of the “primary rights” doctrine. The County filed its motion for a new trial on May 28, 2010. In support of its motion, Defendant submitted: (1) a Memorandum supporting the County’s motion; (2) the declaration of Mark A. Wasser, the County’s lead counsel; (3) the declaration of Karen S. Barnes, an in-house attorney for Kern County, who was present throughout and testified at trial; (4) the declaration of Amy Remly, Mr. Wasser’s paralegal; (5) the declaration of Joanne DeLong, an attorney who observed the entire trial in the courtroom; (6) the declaration of Dr. Robert Burchuk, the County’s medical expert; (7) the declaration of Dr. Irwin Harris, who provided expert testimony during trial; and (8) the declaration of Renita Nunn, who testified on May 20 and June 2, 2009. (Docs. 417-428.) The declarations describe Mr. Lee’s conduct during trial, including his alleged gesturing and scoffing during witness examinations in front of the jury; his inappropriate and inflammatory comments during closing argument; and his apparent “confusion” over yet repeated use of the term “demotion” as it relates to Dr. Jadwin’s removal from his Pathology Department chairmanship position at Kern County Medical Center. The declarations and other supporting Rule 59 evidence are delineated by topic: a. Use of Word “Demotion” at Trial 1. Mr. Wasser Early in trial, Mr. Lee began using the words “demoted” and “demotion” to refer to Plaintiffs removal from his chairmanship position at Kern County Medical Center despite the absence of any evidence that Plaintiff was demoted. Every time he used these words, I objected. The Court sustained all of my objections. After Mr. Lee’s third or fourth continued usage of the words, the Court admonished Mr. Lee and told him he was dangerously close to being held in contempt. Mr. Lee never stopped using the words. He even used them in his closing argument, prompting yet another admonition from the Court. On at least one occasion, Mr. Lee sought to excuse his misconduct by claiming it was his first trial. (Doc. 417 at ¶ 6.) 2. Joanne Delong During the course of the trial, in the presence of the jury, Plaintiffs attorney, Eugene Lee, used the word “demotion” several times in reference to Plaintiffs removal from the chairmanship of the Pathology Department at Kern Medical Center. On at least one occasion, after trial had concluded for the day but before the attorneys were dismissed, the Court admonished Mr. Lee for his continued use of the word “demotion.” I remember the admonishment was lengthy and quite stern. (Doc. 420 at ¶ 3.) 3. Karen Barnes Ms. Barnes’ declaration mirrors that of Ms. Delong’s. (See, e.g., Doc. 418 at ¶ 3) (“During the course of the trial, in the presence of the jury, Plaintiffs attorney, Eugene Lee, used the word “demotion” several times in reference to Plaintiffs removal from the chairmanship of the Pathology Department at Kern Medical Center.”). b. Gesturing, Shrugging, and Scoffing 1. Amy Remly During the trial, I sat in the gallery. I had an unobstructed view of the Plaintiffs counsel table. Mr. Lee often became agitated and, when he did, he frequently threw himself back into his chair and threw his arms up into the air. Joan Herrington frequently turned her face toward Mr. Lee and made facial expressions in response to witness’ testimony. She rolled her eyes, arched her eyebrows and shook her head. This behavior lasted throughout the trial. (Doc. 419 at ¶ 2.) 2. Dr. Irwin Harris I testified in this case on Friday, may 15, 2009, and Tuesday, May 19, 2009. When I was being questioned about acts by the Plaintiff at Kern Medical Center, regardless of whether the acts were lit-tie or big events, the Plaintiff shaking his head “no” with facial expressions of disappointment in me. For the Plaintiffs attorney, Eugene Lee, to allow his client to behave in such a manner was very disturbing to me[... ] Every few minutes, Plaintiffs other attorney, Joan Herrington, would respond to my answers by raising her eyebrows, looking surprised, and then she would lean over and whisper into the ear of Mr. Lee, who would suspend that line of questioning until another approach was taken with that line of questioning. I found these pauses to be filled with drama, and it disturbed my concentration. (Doc. 422 at ¶ 3^1) c. Trial Witnesses: “Uncomfortable” and “Huffing Sounds” Karen Barnes and Renita Nunn, two trial witnesses, submitted sworn declarations describing similar conduct by Plaintiffs counsel during trial. (Docs. 418 & 423.) According to Ms. Barnes, she was “uncomfortable” and “distracted” by the constant gesturing, facial grimaces, and snickers from Plaintiff and his attorneys. (Doc. 418 at ¶ 4.) Renita Nunn states that Mr. Lee and Ms. Herrington made “huffing sounds” and rolled their eyes when they disagreed with a witness or opposing counsel. (Doc. 423 at ¶ 3.) Ms. Nunn further recounts an incident where Mr. Lee was admonished by the court after he yelled “come on” in response to one of her answers. (Id. at ¶ 4.) She also states that Mr. Lee “threw his arms about” and engaged in “theatrics” during trial. (Id. at ¶ 3.) d. Inappropriate Comments During Closing Argument The County argues that Mr. Lee improperly appealed to bias, prejudice and emotion in his closing argument by referring to the County’s size and power. According to the County, this was a “clear theme” to Mr. Lee’s trial strategy and supports its Rule 59 motion for a new trial. During his closing argument, Mr. Lee stated: And you know, we’ve heard Dr. Jadwin, how he is supposedly a millionaire, this and that. You know, in the end, he’s just an individual, it’s just one person against an entire County and all of its resources that we faced in this case. But I will tell you, it’s very important that even a powerful organization such as the County understand that in a court of law, everybody’s equal. (RT, June 4, 2009, 81:10-81:17.) The Court, sua sponte, immediately instructed the jury to disregard Mr. Lee’s statement: And I must say, ladies and gentleman, that an appeal to status, big versus little, strong versus weak, is improper under the law and you should disregard any such suggestion. (RT, June 4, 2009, 81:23-82:1.) Each time Mr. Lee was admonished he apologized and on more than one occasion stated that it was his first trial and he was “trying.” The court’s response, in keeping with its duty to recognize the inexperience of counsel, attempted to balance Mr. Lee’s violation of rudimentary rules of trial decorum, against the rights of all parties to a fair trial, and refrained from interfering with or chilling Mr. Lee’s advocacy while reminding him of his professional responsibility to abide by the rules. Mr. Lee, notwithstanding, continued to violate the rules. 2. Merits Rule 59(a) of the Federal Rules of Civil Procedure provides that a court may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a). Rule 59 does not specify the grounds on which a motion for a new trial may be granted. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is “bound by those grounds that have been historically recognized.” Id. Historically recognized grounds for a new trial include a verdict that is against the weight of the evidence, damages that are excessive, or a trial that was not fair to the moving party. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007). A new trial may be granted only if, after weighing the evidence as the court saw it, “the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski, 481 F.3d at 729 (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000)). The decision whether misconduct of trial counsel has been so egregious to require a new trial is committed to the broad discretion of the court. See Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.1987); see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (“The authority to grant a new trial [... ] is confided almost entirely to the exercise of discretion on the part of the trial court.”) The County argues that Plaintiffs attorneys committed ‘‘grievous misconduct” throughout the trial, leading to an improper and inconsistent jury award. The County explains: Plaintiffs counsel’s misconduct, their continuing misbehavior and breach of courtroom decorum, their refusal to abide by or respect the Court’s ruling, the puree of commingled legal theories thrown to the jury, combined with Plaintiffs ever-shifting dance to reconcile his inconsistent positions, substantially prejudiced the County and renders the resulting verdict flawed to the point a new trial is required. (Doc. 433 at 5:19-5:23.) Plaintiffs counsel is critical of the County’s characterization of his behavior during trial. According to Mr. Lee, there was “no misconduct which permeated the entire proceeding so as to prejudice the jury” and, even if there was, “Defendant failed to object [... ] This bars relief.” Defendant also disputes the County’s interpretation of Ms. Herrington’s alleged gesturing and misconduct, which he describes as minimal and not impacting the Rule 59 analysis. The County’s Rule 59 motion also argues that Plaintiffs counsel continually committed gross prejudicial misconduct during closing argument when he “aggressively appealed to a bias against big organizations.” According to the County, the references to the County’s supposed “power and size” were so numerous that they created “a clear theme to his argument.” Defendant argues that Plaintiffs counsel’s “plan” or “theme” culminated in closing argument when he characterized the County as “powerful” and described his client’s interaction with his employer as “one person against an entire County and all of its resources.” Here, Plaintiffs counsel’s comments concerning the County’s size and available resources were improper, as he readily concedes. (RT, July 28, 2010 at 88:2-88:3) (“the Court gave an admonition at that time, sua sponte [... ] and Mr. Lee accepted the admonition [.. ] He apologized.”). However, there is no indication that Mr. Lee’s comments so permeated the trial that the jury was necessarily prejudiced, as required by Settlegoode v. Portland Pub. Schs., 371 F.3d 503 (9th Cir. 2004). First, immediately following Mr. Lee’s comments, the Court, sua sponte, instructed the jury to disregard Mr. Lee’s statement about size and the County’s power. It did so in a neutral and dispassionate manner to avoid emphasizing any prejudice and so as to not reflect adversely on either party. The law presumes that the jury carefully follows the instructions given to it. See Doe v. Glanzer, 232 F.3d 1258, 1270 (9th Cir.2000); see also United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999) (“Given that the district court sustained the objection, coupled with the district court’s earlier instruction to the jury ..., if there was any error, it was harmless.”). Here, the prejudicial effect on the jury, if any, was minimal and a new trial is not warranted on that basis. See Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir.1984) (explaining that the trial court is in the best position to gauge the prejudicial effect of improper comments). As the Court stated during oral argument on the Motion for New Trial on July 28, 2010, the comment was improper but was immediately and appropriately remedied: talking about the powerful organization and the—it’s just us, one against the powerful County, the entire County and all its resources faced in this case, the Court gave an admonition at that time, sua sponte. And Mr. Lee accepted the admonition. He apologized. And I believe that that did cure and minimize the prejudice that could be caused. Because such a remark can be prejudicial. Referring to big versus little. Referring to have versus have not, powerful versus weak, David v Goliath. Those are all classic hyperbolic type arguments that are recognized in the cases and involve improper argument. But again, it was isolated. The theme wasn’t repeated. And the Court, again, did not have a motion for mistrial and acted as promptly and as even handedly as possible. In other words, I didn’t raise my voice. I didn’t express any disapproval or anger. I rather simply— I gave [an] admonition. (RT, July 28, 2010, 87:24-88:15.) Second, the “size” comments alleged to have deprived the County of a fair trial were isolated rather than persistent. They occurred only during closing argument. See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to grant a motion for a new trial where “the alleged misconduct occurred only in the argument phase of the trial ... most of counsel’s comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument”). The misconduct complained of in this case is substantially different from the “closing argument misconduct” supporting a new trial in Bird v. Glacier Electric Coop., Inc., 255 F.3d 1136 (9th Cir.2001). In Bird, the Ninth Circuit concluded that counsel’s closing arguments offended fundamental fairness because counsel: (1) argued in inflammatory terms; (2) linked the defendant’s behavior to white racism in exploitation of Indians; (3) appealed to historical racial prejudices of or against the white race; and (4) used incendiary racial and nationalistic terms to encourage the all-tribal member jury to make an award of damages against the non-Indian defendant. Id. at 1152. Bird is distinguishable. Lastly, had defense counsel believed that any prejudice to the jury was not cured by the Court’s sua sponte admonition and instruction, he should have objected, assigned misconduct to Mr. Lee, requested additional instruction or moved for a mistrial. However, Defendant chose not to do so. The County next argues that Plaintiffs counsels’ gesturing, grimacing, and scoffing during witness questioning deprived the County of a fair trial. The County explains: Both Plaintiffs attorneys, Mr. Lee and Ms. Herrington, while seated at counsel table listening to witnesses testify, grimaced, sighed, snickered, rolled their eyes, shook their heads, huffed, made facial expressions of disapproval, and feigned exaggerated looks of exasperation. Ms. Herrington constantly arched her eyebrows and shook her head. Mr. Lee made guttural sounds and grunts and would lean back in his char, throw his arms up and slap the armrests when he did not like an answer. While he examined witnesses, Mr. Lee routinely repeated the witness’ answers back to the witness. He was admonished several times by the Court to stop it. He made sarcastic statements like, ‘of course you would say that’ and ‘come on’ [•••] (Doc. 416 at 6:6-6:18.) According to the County, this conduct continued through the entire trial and had a distracting, disturbing, and infuriating impact on witnesses. Plaintiff and his counsel disagree. The starting point is the County’s failure to object to these alleged gestures, facial expressions, or grunts during trial. The objections are made for the first time in the County’s motion for a new trial. The “non-objection” issue was discussed during the July 28, 2010 oral argument, at which point the Court stated that it did not observe the alleged inappropriate gesturing and mocking, in part because defense counsel did not bring the conduct to the Court’s attention. Rather, the Court was focused primarily on the witness, jury, trial exhibits, real-time testimony on the Court’s monitor, and its taking of trial notes; not on Plaintiffs attorneys or the individuals sitting near Plaintiffs table. Defense counsel stated that he did not personally witness the conduct because he “was examining the witness [... ] [the gesturing and comments] it’s behind me.” (RT, July 28, 2010 at 80:18-80:23.) This explains why no objection was then raised, but does not explain why the subject was not raised at a recess or the close of the court day, to give the judge an opportunity to address the claim. Nor was a motion for mistrial made. The Ninth Circuit holds that a new trial should only be granted where the “flavor of misconduct ... sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.” Settlegoode, 371 F.3d at 516-17. An even higher threshold governs where, as here, defendant failed to object to the alleged misconduct during trial. Id. at 518. Under those circumstances, the Ninth Circuit reviews for “plain or fundamental error,” which requires: “(1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice.” Id. a. Counsel’s Misconduct. Here, the conduct at issue does not meet this high threshold. See, e.g., A.D. v. Cal. Highway Patrol, No. C-07-5483-SI, 2009 WL 1817004, at *5 (N.D.Cal. June 23, 2009) (finding that defendants did not meet Settlegoode’s high threshold). As to the objections that were made at trial, the County claims that Mr. Lee’s conduct was “part of an overall strategy to compromise the integrity of the trial to emotion and bias.” To support its argument, the County submits several declarations describing an admonishment of Mr. Lee for “making guttural sounds.” The declarations also portray a reprimand of Mr. Lee for making a sarcastic remark to a witness. With respect to these statements and conduct, defense counsel’s objections were sustained and the jury was given a curative instruction. See, e.g., Messick v. Patrol Helicopters Inc., 360 Fed.Appx. 786, 789 (9th Cir.2009) (“Plaintiffs’ counsel erred [... ] however, the district court gave the jury a curative instruction subsequent to that argument, and a jury is presumed to follow the district court’s instructions.”). Defendant did not raise the issue of cumulative prejudice and did not move for a mistrial or request further jury instruction on the issues, nor raise concerns that the County was forced to make repeated objections, which cast the County in the light of being obstructionist. None of the objected-to conduct satisfied the Settlegoode standard; it did not permeate the entire proceeding so as to influence and/or prejudice the jury. A review of the record reveals that Mr. Lee’s cross-examination of several witnesses was contentious and at times sarcastic, particularly as to Plaintiffs former professional colleagues at Kern Medical Center. However, the discordant nature of the examination was often brought on by the witnesses, who themselves argued or were adverse in response to points Defendant sought to establish. Further, the record does not indicate that Mr. Lee’s extraneous comments were actually heard by any member of the jury. It is also possible that the jury viewed Plaintiff and his counsel in a less favorable light by observing the complained-of behavior. The same reasoning applies to the argument that “Mr. Lee’s continued use of the word ‘demotion’ was prejudicial to the County because it implied Plaintiff was punished even though neither party introduced evidence to support such a finding.” The objections were sustained and, as the County explains: “the Court gave Mr. Lee a lengthy admonition and warning, outside the presence of the jury, for his continued use of the word [... ] Mr. Lee extravagantly apologized and assured the Court he would stop.” Contrary to the County’s assertions, there is no evidence in the record that Mr. Lee made “insincere apologies” to the Court or that his language choice was “calculated and pervasive in nature.” Rather, the record demonstrates Mr. Lee’s misstatements were due to his total inexperience as a trial attorney and unfamiliarity with the federal rules of evidence. Here, in contrast to cases such as Cadorna v. City and County of Denver, Colorado, 245 F.R.D. 490 (D.Colo.2007) and Ballarini v. Clark Equipment Co., 841 F.Supp. 662 (E.D.Pa.1993), there is no evidence that counsel flouted the Court’s rulings or that the conduct served to “plant in the jury’s minds that the Federal Rules of Evidence were inconvenient devices to conceal the truth.” Cadorna, 245 F.R.D. at 495. Under the totality of the circumstances, there is insufficient evidence to conclude that the alleged misconduct permeated the trial with prejudice against the County. The general level of courtroom etiquette returned to normal after counsel was admonished. b. Confusing Federal and State Front Pay Claims The County also moves for a new trial or, in the alternative, to alter, amend, or obtain relief from judgment based on Mr. Lee’s confusion over the applicability to his case and, particularly, the employment-based claims he prevailed on at trial. The County advances three arguments to support its position. First, the jury’s verdict for the reasonable value of earnings and professional fees which with reasonable probability will be lost in the future should be amended because the basis for such an award is unclear. Second, Plaintiffs counsel equivocated on Plaintiffs claims during closing argument, which “encouraged juror confusion and denied the County of its right to have the jury treat each claim separately and accurately. Third, Plaintiff allegedly violated the primary rights doc-tome by alleging violation of several legal theories when there was only one injury. The County’s first argument is an extension of the “liquidated damages” analysis contained in the March 31, 2010 Memorandum Decision. The Memorandum Decision explained that the statutory basis for the claimed “reasonable value of earnings and professional fees” award was unintelligible, therefore liquidated damages were not available. It also discussed the impact of the general jury verdict in the context of prejudgment interest, which was unavailable for the same reasons. Here, the County adds an additional element to the analysis: If liquidated damages were improper because the foundation for “future damages” was unclear, then the entire “future damage” award is infirm. This issue is discussed in detail in the “prejudgment interest” section, § 111(B)(1), infra. Both parties argue that the award must be modified (upward or downward) because the jury did not award damages based on federal (FMLA) or state (FEHA or CFRA) violations. According to the County, the entire future damage award must be thrown out because “it might be based on the FMLA.” It does not follow that the entire “future” damage award is infirm. While the federal FMLA does not provide for “front pay,” the award of reasonable value of earnings and professional fees is properly supported under the state FEHA and CFRA claims. Although Mr. Lee did not make this explicitly clear during trial, the County did not object to Mr. Lee’s statements at that time. More critically, Mr. Lee’s intermingling of the statutory frameworks did not result in Rule 59 error; the jury award is supported by state statutory law. The County’s second argument, that counsel “equivocated” during closing argument, is resolved under the “misconduct” framework, discussed in detail above. Here, the “equivocation” allegedly took place during closing arguments and was not objected to by the County. On these facts, there is no basis to grant a new trial. See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to grant a motion for a new trial where “the alleged misconduct occurred only in the argument phase of the trial [... ] most of counsel’s comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument”). Defendant did not move for a mistrial based on the Plaintiffs arguments. Taking Mr. Lee’s “equivocation” independently or in the aggregate, there is insufficient evidence to conclude that this alleged misconduct permeated the trial and irreversibly prejudiced the County. Mr. Lee’s (mis)expressions in this area are indicative of counsel’s inexperience, not gross incompetence or intentional misconduct. c. Primary Rights Doctrine. The County’s final argument is that Plaintiffs “redundant” claims ran afoul of the “primary rights” doctrine. The California Supreme Court explained that the primary rights theory: [Pjrovides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 904, 123 Cal.Rptr.2d 432, 51 P.3d 297 (2002) (citations omitted). A party may bring only one cause of action to vindicate a primary right. Id. at 897, 123 Cal.Rptr.2d 432, 51 P.3d 297. Claims not raised in this single cause of action may not be raised at a later date. Id. The foundation for the County’s primary rights argument, which was raised for the first time in its third round of post-trial briefing, is that Plaintiffs August 10, 2009 motion “revealed for the first time that Plaintiffs claims all arose from the same set of employment actions.” The County states that: “had it known that Plaintiff believed his claims all arose from the same facts, it would have moved in limine or otherwise to narrow or eliminate redundant claims.” The County’s argument incorporates language from the Ninth Circuit’s decision in Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022 (9th Cir.2005), discussing the primary rights doctrine: MHC’s claims in federal and state court all involve a single primary right: the right to receive a fair return on its investment at Westwinds. They all stem from a single injury MHC claims to suffer. See Takahashi v. Bd. of Trs., 783 F.2d 848, 851 (9th Cir.1986) (holding the plaintiffs statutory mandamus proceeding in state court barred the plaintiffs constitutional claims in federal court because both actions stemmed from a single primary right: the contractual right to employment). MHC’s claims all relate to a single Ordinance and the City’s application of that Ordinance to MHC’s petition for a rent increase. MHC’s different Counts are simply different legal theories under which MHC may recover. Different theories of recovery are not separate primary rights. Mycogen Corp., 28 Cal.4th at 897, 123 Cal.Rptr.2d at 438, 51 P.3d at 307; see also Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 226-27, 543 P.2d 593, 594-95 (1975) Id. at 1031-31. Plaintiff responds that the County “fundamentally misunderstands the primary rights theory.” Plaintiff relies on Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58 (1979) for the proposition that “one adverse employment action could involve the violation of more than one primary right.” On this point, Plaintiff also cites Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731 (9th Cir.1984): “As both Mattson [v. City of Costa Mesa, 106 Cal.App.3d 441, 164 Cal.Rptr. 913 (1980) ] and Agarwal indicate, the single most important factor in determining whether a single course of conduct has violated more than one primary right is whether plaintiff suffered injury to more than one interest.” Plaintiff then recounts eight “interests,” including the right to a reasonable accommodation in employment; right to a workplace free from discrimination; right to an interactive process; and right to workplace free from retaliation as separate “interests,” involving distinct primary rights, which were included in the second amended complaint. Plaintiff argues that the case involved a “set of facts” that violated several “rights” or “interests.” The County frames the issue as: “there was only one injury, therefore there was only one claim for relief.” The County does not specify the “single injury” allegedly suffered by Plaintiff. In this case, contrary to the County’s arguments, Plaintiff possessed a number of legally protectable “interests” under different statutes. Uncertainty over what statutory violation(s)—federal or state—led to the damage award, cuts against the County’s arguments. The jury verdict contains several damage awards that reflect the jury determined that Plaintiff experienced multiple violations of his different federal and state statutory rights. Given the jury’s findings and the lack of legal authority supporting the County’s position, there is no basis to find that Plaintiff violated the primary rights doctrine. As the Court explained during oral argument on July 28, 2010: So there’s five separate primary rights that were identified by claims, that were separately stated correctly in the complaint. And so I don’t believe that there’s only one injury or only one primary right that was at issue in the case, or on which the jury could have found a basis to award damages. So that’s my tentative ruling there [... ] There was a way to make this very clear if the County wanted to break it down. And that is that—and there’s a good reason not to do this, a good strategic reason, but it certainly is within your ability to ask for a verdict form that would have defined, if you will, the harms and the primary rights violated, and have findings in the verdict form on each of those. But candidly, it would have been accentuating and emphasizing those [separate claims and bases for recovery] to the jury. And again, an experienced trial lawyer makes strategic decisions. And if I’m defending that case, I may just as likely say “I don’t want to go there” and have it in black and white, here’s five separate primary rights being violated, and makes your [separate] findings on [each of] those. Maybe you end up, if there’s a plaintiffs verdict, with more damages or worse findings. And so certainly we didn’t have the specific findings on those, but there was a way to address that. And no party requested that the Court give any further instructions of law or have any different or additional verdict forms to address that. (RT, July 28, 2010 at 94:10-95:13.) It was within the County’s ability to request answer to such clarifying questions by jury instruction and verdict form with specific findings. The County did not ask for such findings in the verdict forms to separately identify which primary rights were violated. 3. Conclusion on the County’s Motion for a New Trial The trial of this case culminated in a result that was supported by substantial evidence. The testimony of members of the Medical Board of Kern Medical Center show that they had personal disputes with and animosities toward the Plaintiff arising out of conflicts. Trial testimony given by members of the Board could have been perceived by the jury as condescending, if not arrogant, and unduly critical of the Plaintiff. Even accepting the defense theory that the Plaintiff was a difficult colleague to interact with; unreasonable in his insistence on conformity with his views as to medical quality assurance; and unduly sensitive in withdrawing from professional practice at the hospital; there was countervailing evidence that demonstrated that Plaintiff was well thought of by nurses and other Department of Pathology staff; that he was a dedicated scientist and committed in good faith to medical quality assurance. That his personal idiosyncracies were not consonant with the culture of the Board and Medical Directors at Kern Medical Center, in the jury’s view did not justify removing him from medical practice in the Department of Pathology, even if his removal as the Director was required by his chronic absences. It is also likely that the jury did not accept the Defendant’s view that Dr. Jadwin was “too disruptive” to be permitted to continue in residence in the practice of pathology at the hospital. Throughout this case, the level of contentiousness between counsel was unprecedented. Substantial unnecessary court time was required to resolve discovery disputes, personal quarrels, and logistical issues between counsel. This hostility continued at trial. This was Plaintiffs lead counsel’s (Mr. Lee) first trial. His inexperience was obvious, he violated a number of the applicable Rules of Court Decorum that governed the trial. A copy is attached to this opinion marked Exhibit A and incorporated herein by this reference. Mr. Lee was disputatious, ultimately unaccepting of the Court’s guidance, and quarrelsome with opposing counsel and with the Court’s rulings. His performance in closing argument was at the limit of acceptable professional conduct. He crossed the line a number of times, however, the Court accommodated his inexperience and undue contentiousness to endeavor to assure a fair trial to both sides. Defense counsel was very competent and experienced. The defense made numerous strategic choices to not object, to not assign misconduct, not move for a mistrial, or otherwise request admonitions or jury instructions that would have addressed the specific problems now raised by the now-surfacing post-trial objections to the trial conduct of Plaintiffs counsel. As the law of this Circuit cited in this decision pellucidly establishes, the time to address and to cure trial counsel’s misconduct is when it occurs. There are many strategic reasons not to do so, all within the sound judgment of an experienced trial lawyer. Such reasons include not alienating the jury; not wishing to appear obstructionist; not repeatedly objecting to the point that the jury is disaffected; not appearing to be unduly hostile toward opposing counsel which may engender an adverse response from the jury; not wishing to emphasize a negative comment from the judge or conduct which would unduly prejudice the jury; and attempting to focus the jury on the points the defense sought to establish, rather than concentrating on the Plaintiffs arguments and contentions. The Court attempted not to intervene, except where absolutely necessary, and attempted to treat counsel for both sides with respect and courtesy. The Court did not use a raised voice, did not express anger, irritation, was neutral in addressing each counsel, and ultimately endeavored to focus counsel and the parties on the merits of the case. The County’s Rule 59 motion for a new trial is DENIED. B. Remaining PosNTrial Motions Having decided the County is not entitled to a new trial under Rule 59, Plaintiffs requests for prejudgment interest, attorney’s fees and costs remain to be decided. 1. Prejudgment Interest Plaintiff moves to amend or correct the Final Judgment to include prejudgment interest of $32,286.39. Plaintiff first moved for an award of prejudgment interest on August 10, 2009, citing Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 922 (9th Cir.1995), Criswell v. Western Airlines, Inc. 709 F.2d 544, 556-557 (9th Cir.1983), Currie v. Workers’ Comp. Appeals Board, 24 Cal.4th 1109, 1115, 104 Cal.Rptr.2d 392, 17 P.3d 749 (2001) and California Civil Code § 3287(a). That motion was denied on March 31, 2010 on grounds that the jury did not allocate the amount of damages attributable to the federal (FMLA) or state (FEHA or CFRA) violations. Nor did the jury itemize damages by each adverse employment action. These two “shades of grey” precluded an award of prejudgment interest: Here, the jury did not specifically allocate the amount of damages attributable to a FMLA violation, making it impossible to select any amount on which to award prejudgment interest exclusively under the FMLA. The only amount on which prejudgment interest could be theoretically awarded under the FMLA is the $321,285 the jury awarded for the reasonable value of earnings and professional fees lost to the present time. As to the other amounts, because this is a compensation loss case under § 2617(a)(l)(A)(i)(I), the jury’s award of $30,192 for the “[rjeasonable value of necessary medical care, treatment, and services received to the present time” is not recoverable as damages under the FMLA and, by extension, interest could not be awarded on this amount under the FMLA. Because the $154,080 the jury awarded for the “[rjeasonable value of earnings and professional fees which with reasonable probability will be lost in the future” represents an award of front pay, this amount falls under § 2617(a)(1)(B) and could not be included in a prejudgment interest computation under § 2617(a)(1) (A) (ii) [... ] As to his state law claims, citing Currie v. Workers’ Comp. Appeals Board, 24 Cal.4th 1109, 1115, 104 Cal.Rptr.2d 392, 17 P.3d 749 (2001) and California Civil Code § 3287(a), Plaintiff argues that “in an action to recover backpay, interest is recoverable on each salary or pension payment from the date it was due.” (Doc. 399 at 8.) Currie determined that, pursuant to California Civil Code § 3287, prejudgment interest could be recovered on a backpay amount awarded to a plaintiff who was wrongfully denied reinstatement. There, the employer’s refusal to reinstate the plaintiff violated California Labor Code § 132a [... ] Plaintiffs reliance on Currie and California Civil Code § 3287(a) is nevertheless problematic because, even assuming any backpay awarded in this case is linked to a FEHA/CFRA violation, the jury awarded backpay in one lump sum—$321,285—without specifying which particular adverse employment action(s) caused what amount of backpay damages. Because this case involves multiple adverse employment actions that occurred at different points in time—not just a one-time wrongful denial of reinstatement as in Currie—the generalized backpay award makes it difficult to compute prejudgment interest. Under California Civil Code § 3287(a), Plaintiff can, in theory, recover prejudgment interest on backpay awarded to him. This interest runs from the day the right to recover the backpay “vested in him.” § 3287(a). The jury’s verdict does not, however, specify the particular adverse employment action(s) on which they based their backpay award, nor the amount of backpay attributable to any particular adverse employment action(s), making it difficult to determine when Plaintiffs entitlement to any discrete amount of the awarded backpay “vested in” Plaintiff. In this case, at least three adverse employment actions that could have lead to an award of backpay are Plaintiffs wrongful removal from his position as Chair of the Pathology Department, his wrongful placement on administrative leave, and the wrongful non-renewal of his contract, all of which occurred on different dates (July 2006, December 2006, and October 2007 respectively). To the extent the $321,285 the jury award consists of backpay damages caused by these different events, what amount of backpay did the jury attribute to each event? The current state of the briefing does not adequately address these issues and prejudgment interest cannot be computed at this time. Whether construed as a motion directed to the court’s inherent authority to modify a non-final order or a motion under Rule 54(b), Plaintiffs request for prejudgment interest is DENIED WITHOUT PREJUDICE. Jadwin v. County of Kern, 2010 WL 1267264, at *16-17 (E.D.Cal.2010). Plaintiff renewed his motion for prejudgment interest on May 28, 2010. The second time around, Plaintiff argues that the $505,457.00 damage award does not include “front pay,” which is not recoverable under the FMLA, but rather “past damages” and “future damages” which are both recoverable under Civil Code § 3287(a). Applying Plaintiffs reasoning, state law violations, not federal, provided the basis for the damage award, therefore he is entitled to prejudgment interest on the entire $505,457.00, not $321,285. Plaintiffs restyled theory, however, overlooks the fact that the jury did not assign damages based on federal (FMLA) or state (FEHA or CFRA) violations. Plaintiffs new argument also ignores the fact that he previously argued, in his trial brief, that he was entitled to “front pay” damages under the FMLA, (Doc. 325 at 11:20-11:21) (“Plaintiff is also entitled to back pay, front pay, liquidated damages and compensatory damages on his FMLA claim”), and introduced “front pay evidence” at trial, see Jadwin v. County of Kern, 2010 WL 1267264, at *11 (“Given the nature of Plaintiffs evidence regarding future losses, it is apparent that the $154,080 the jury awarded for the ‘[r]easonable value of earnings and professional fees which with reasonable probability will be lost in the future’ represents an award of front pay.”). Without any guidance from the verdict form or case law, Plaintiff now asks the Court to ignore the FMLA claims and evidence, which he failed to differentiate for the jury and failed to request separate verdict findings on each state and federal claim to eliminate the ambiguity of what the jury findings are on these claims, and to calculate interest under the “prejudgment interest friendly” FEHA and CFRA. This is unprecedented and requires impermissible post-trial judicial interpretation of a “stipulated” general verdict form. Contrary to Plaintiffs arguments, there is no basis to conclude that the damage award was based on state law violations, or vice versa. On the present record, the Court cannot interpret and give meaning to a general verdict form that did not allocate damages based on the underlying statutory violations and adverse employment actions. Plaintiffs argument that the entire jury award can be characterized as a Civil Code § 3287(a) damage award is without merit. The jury’s verdict did not so specify, and such an award is inconsistent with Plaintiffs evidence and argument at trial. Moreover, no formula or other finite predetermined calculation formula was introduced into evidence. Plaintiff next offers a “solution” for the adverse employment actions issue, i.e., what adverse employment action formed the basis for the jury’s damage award: A reasonable basis for approximating interest would be to calculate interest on past and future economic damages from the date on which the jury rendered its verdict, 6/9/09, up through the date of entry of judgment, 5/4/10. This is a conservative method by any measure as the jury was not instructed to include interest on past damages “to the present time”, and so the jury’s past damages award likely did not include interest. (Doc. 424 at 6:19-6:23.) Plaintiff offered the following prejudgment interest calculation: 1. 333 days/365 days x 7% interest x 505,557 = 32,286.39 (Id. at 6:25.) Plaintiffs proposal is a reasonable solution to a unique problem, i.e., absence of itemized damages referable to each adverse employment action or identifying the underlying theory of recovery. The general approach submitted by Plaintiff is adopted to calculate prejudgment interest. Plaintiffs specific calculations, however, are rejected as they are based on the entire jury award, $505,457.00. As discussed in detail in this Memorandum Decision, in open court on July 28, 2010, and in the March 31, 2010 Memorandum Decision, the jury did not allocate the amount of damages attributable to the federal or state violations. There is nothing in the record to ascertain whether the jury’s damage award was based entirely on state law violations. The jury, pursuant to its general findings on June 5, 2009, established that the “principal” amount of damages for any potential claim for prejudgment interest is $821,285. Plaintiff has been unable to present, after three rounds of briefing, any binding or persuasive authority to support his arguments, which conflict with the jury’s unanimous verdicts. This does not the end the analysis. The parties dispute whether federal or state law provides the applicable prejudgment interest rate. Plaintiff originally argued that the correct rate was 10% per annum, the maximum state law rate for post judgment interest; but has since revised his request to 7% per annum. Plaintiff argues that this is the correct interest rate because “state law is controlling with regard to the prejudgment interest rate.” (Doc. 449 at 4:17-4-18.) In support, Plaintiff cites Evanston Ins. Co. v. OEA Inc., 566 F.3d 915 (9th Cir.2009) and the March 31, 2010 Decision, which stated that “prejudgment interest is substantive for Erie purposes [... ] that makes California law applicable to prejudgment interest on Plaintiffs state law claims.” (Doc. 408 at 32:12-32:13.) Plaintiff once again ignores the seminal dispute in this case, that the jury did not allocate the amount of damages attributable to the federal or state violations. Without a specific jury determination on that issue, there is no basis to support an omnibus “state law” prejudgment interest calculation to the exclusion of the federal rate. To illustrate, a 7% interest rate is appropriate in diversity cases, when a party prevails on a state law claim. It is undisputed that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its progeny supply the relevant interest rate in that instance. However, this case is different. Here, the jury determined that both Plaintiffs federal and state law employment rights were violated, without distinction as to the separate claims for relief. Plaintiff explicitly acknowledged as much in his August 6, 2010 supplemental brief: “Here, the jury found that medical leave was a ‘motivating factor’ in all 4 of the adverse actions taken by Kern County against Plaintiff, in violation of the FMLA (as well as the California Family Rights Act) and awarded Plaintiff both past and future lost wages.” (Doc. 444 at 3:12-3:14.) The Defendant’s reciprocal contention is unavailing. Like the state interest rate arguments, the federal interest rate, statutory or prime, cannot be adopted in its entirety because it is unclear whether the award was based on federal or state law violations. The jury award could be based on federal violations, but it is also arguable that the entire award was based on violations of the FEHA/CFRA. There is no clear solution on how to best to calculate prejudgment interest in this case. If the jury award was based purely on state law, a 7% interest rate applies. See Pro Value Properties, Inc. v. Quality Loan Service Corp., 170 Cal.App.4th 579, 582, 88 Cal.Rptr.3d 381 (2009). On the other hand, if the jury award was based solely on the FMLA, prejudgment interest must be calculated according to either the rate of interest published by the Board of Governors of the Federal Reserve System, 28 U.S.C. § 1961(a), or the “prime rate.” See Hite v. Vermeer Mfg. Co., 361 F.Supp.2d 935, 949 (S.D.Iowa 2005) (discussing potential prejudgment interest rate calculations under the FMLA), aff’d 446 F.3d 858 (8th Cir.2006); see also Bell v. Prefix, Inc., No. 05-74311, 2010 WL 4260081, at *2 (E.D.Mich. Oct. 22, 2010) (applying the federal reserve interest rate to determine prejudgment interest in an FMLA case). Defendant argues for a federal “prime rate” of 3.25%. In view of the historical reduction of interest rates while this case has been pending, this is a fair measure for the federal prime rate. The Ninth Circuit has made clear that prejudgment interest is an element of compensation, not a penalty, and has the primary goal of making an aggrieved party whole. See generally Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 988 (9th Cir.2001); accord Drumm v. Morningstar, Inc., 695 F.Supp.2d 1014, 1022 (N.D.Cal.2010) (“The purpose of prejudgment interest ‘is to provide just compensation to the injured party for loss of use of the award during the prejudgment period—in other words, to make the plaintiff whole as of the date of the injury.’ ”) (citing Lakin v. Watkins Assoc.’d Indus., 6 Cal.4th 644, 663, 25 Cal. Rptr.2d 109, 863 P.2d 179 (1993)). Based on such a compensatory rationale, some district courts have determined that the federal statutory interest rate did not fulfill the purpose of awarding prejudgment interest, see, e.g., Perez v. Cozen & O’Connor Group Long Term Disability Coverage, No. 07-cv-0837-DMS-AJB, 2008 WL 6693714, at *2 (C.D.Cal. Aug. 19, 2008) and Hite, 361 F.Supp.2d at 949, while others have found that the federal rate prescribed in 28 U.S.C. § 1961 appropriately compensated the aggrieved party, see, e.g., Traxler v. Multnomah County, No. 06-1450-KI, 2010 WL 3069340, at *1 (D.Or. Aug. 2, 2010) and Austin v. Jostens, Inc., No. 07-2380-JAR, 2009 WL 902417 (D.Kan. Mar. 31, 2009). As no clear guidepost exists and the parties have not offered a reasonable solution on how to calculate prejudgment interest in this case, the Ninth Circuit’s preferred “compensatory approach” governs. To properly compensate Plaintiff and to account for the possibility that the jury returned a verdict supported only by the FMLA or the FEHA/CFRA, Plaintiff is entitled to prejudgment interest at the average of the “prime rate,” 3.25%, and the California rate, 7%, for an average rate of 5.125%. Although this rate does not correlate exactly with either the federal (prime) or state (statutory) rates, it is reasonably proximate to both, and it will ensure Plaintiff is fully compensated. Plaintiff is awarded prejudgment interest from the date of the jury’s verdict, June 5, 2009, to the date of entry of final judgment, May 4, 2010. However, based on the uncertainty in the jury’s general verdict award, which was proposed, given, and accepted by the parties without objection, or request for an alternate verdict form, Plaintiff is awarded prejudgment interest at a rate of 5.125% on the principal damages award of $321,285. The total prejudgment interest award is $15,022.27. The May 4, 2010 Judgment is amended to include this amount. 2. Post-Judgment Interest The parties agree that the Plaintiff is entitled to an award of post-judgment interest at the federal treasury rate, from the date of the judgment to the date of satisfaction of the judgment. (RT, July 28, 2010, 58:24-59:24.) Plaintiffs request is GRANTED and the judgment is AMENDED to include an award of post-judgment interest at the federal treasury rate, from the date of the judgment to the date of satisfaction of the judgment. 3. Attorney’s Fees a. Introduction Plaintiff requests an award of attorney’s fees under both Federal law (42 U.S.C. § 1988 and 29 U.S.C. § 2617(a)(3)) and California law (Cal. Gov’t Code § 12965). Plaintiff seeks a total of $3,944,818.00 in attorneys’ fees, broken down as follows: a lodestar of $1,972,409.00 in fees, with a 2.0 multiplier for extraordinary litigation efforts and expertise in the area of employment law. The total amount requested is based on the work of four counsel at out-of-town hourly rates: (1) lead counsel Eugene Lee, $400/hr.; (2) counsel Joan Herrington, $500/hr.; (3) contract counsel Marilyn Minger, $385/hr.; (4) fee counsel David Hicks, $660/hr. The statutes cited by Plaintiff provide that a district court, in its discretion, may award reasonable fees to the prevailing party. See 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of section ... 1983 of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs....”); Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir.2009) (“The FMLA directs the award of reasonable attorneys’ fees to a prevailing plaintiff [... ] [t]he amount of attorneys’ fees awarded is at the trial court’s discretion.”) (citations omitted); see also Cal. Gov’t Code § 12965(b) (“the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs.”). The County does not dispute that Plaintiff is the prevailing party under the cited statutes and case law, however, it argues that the motion should be denied in its entirety due to Plaintiffs conduet/behavior and egregious over-litigation and limited success. In the event fees are awarded, the County asserts that Plaintiff is not entitled to recover the to