County Pays Big for “Limp, Lame, and Lazy” Claim

In the sad story of the late Sheriff’s Deputy Dennis Wallace—gunned down by a mentally ill killer at Fox Grove fishing access near Hughson almost two years ago—Stanislaus County may get stuck with a big bill: $1,471,843.95. An order from Stanislaus County Superior Court Judge Timothy W. Salter says that’s what Wallace’s attorneys are owed.

Wallace may have given his life in service to the same agency that put him on a list of those thought to be, “limp, lame and lazy.” For more than six years, Stanislaus County fought to keep from paying him for time they kept him off the job.

Wallace’s death put limits on the total money he was owed because certain claims died with him out there at the Fox Grove fishing access, when David Machado shot him twice in the head on November 11, 2016. Machado was later found mentally unfit to stand trial.

A little less than 10 years after he was hired as a patrol deputy, Wallace injured, then reinjured, his left knee on duty. He wore a knee brace, but kept working his regular job until he had surgery on the knee followed by a period of light duty.

After a series of light duty assignments and paid leave, and after working as a bailiff, Wallace underwent a medical examination through Workers’ Compensation. The orthopedic surgeon listed restrictions which the county said precluded him from any position within the sheriff’s office, including bailiff.

The county then offered to find other county jobs for Wallace, but they would not be “safety” positions, which would affect his retirement pay, benefits, and self-esteem.

Wallace used up sick leave and accrued vacation, but kept up the fight to get back to full employment. He reached an accommodation with the county, and underwent another examination with a different physician, leading to his full re-instatement as a patrol deputy on January 30, 2013. As Wallace fought for re-instatement, his Bay Area attorneys fought in court for his loss of pay and benefits while on unpaid leave.

There were two jury trials stemming from Wallace’s claim that he was discriminated against because of a disability. The first trial ended with some findings by the jury in favor of the county, but ended in a mistrial because the jury could not resolve the issues. The second trial ended with findings in favor of the county.

During the trials, two things stood out. One was the supposed list of people which sheriff’s office administrators deemed, “limp, lame and lazy”—in other words, malingerers. The other was the claim by Wallace that he was fit for duty and would prove it in a foot race with Sheriff Adam Christensen. The sheriff recalled no such challenge.

On February 25, 2016, about eight months before he died, the Fifth District Court of Appeal overturned the jury verdict, and found that, as a matter of fact, Wallace had been the victim of disability discrimination. The Court of Appeal then returned the case to the Stanislaus County Superior Court to determine the amount of damages owed, as well as other issues which would stem from a finding in Wallace’s favor, including attorney’s fees and costs.

The California Supreme Court denied review of the Appellate Court’s decision about four months later, so the matter came back to our local court and was assigned to Judge Salter. He undertook to resolve the issues of attorneys’ fees and costs as Wallace’s’ widow, Mercedes, settled the lost pay claim with the county for $251,500.

In a 7-page-single spaced Minute Order, Judge Salter recapped the case from its onset through two jury trials and an appeal. The judge needed to determine if, and how much, Wallace’s trial and appeal team should receive. The county took the position that because the case settled, Wallace was not the “prevailing party.”

Judge Salter noted that the settlement amount paid was, “for all intents and purposes, the same amount of economic damages Deputy Wallace proved at trial,” so the judge employed what is called the “catalyst theory,” which turns a settling party into a a prevailing party if they caused change on the other side. The county ponied up the economic damages only because of the persistence of Wallace’s team.

The court noted that current case law allows use of the catalyst theory when there is independent merit. “This case has independent merit in abundance,” Judge Salter wrote.

The next argument the county made was that the team of trial and appellate lawyers were charging too much on an hourly rate, contending it could have been done cheaper with “local” lawyers. Wallace’s team showed that efforts were made to hire local counsel, and no one would take the case. Not surprising, since this team spent more than 1,800 hours over six years without being paid, as well as spending almost $100,000 in costs.

Judge Salter, in his order, said he reviewed and re-reviewed the submissions and gave the Bay Area lawyers their “home” hourly rate instead of the rate prevailing in Modesto. Their rates ranged from $400 to $650 per hour.

He then applied a multiplier based on the skill and experience of the lawyers, the difficulty of the case, and other factors, noting this was “not a run of the mill disability claim.” He multiplied by 1.35 and came up the total of $1,373,142.30. He also awarded costs of $98,701.65

The county could appeal this ruling, exposing it to more fees and costs. Whenever it finally ends, if not now, there will be another bill.