A Lawsuit Brought In Bad Faith With Several False Statements In His Complaint Sealed The Deal For This Plaintiff.
In Marciano v. City of Los Angeles, Case Nos. B287477 and B288907 (2d Dist., Div. 8 November 4, 2019) (unpublished), two police officers brought a whistleblower lawsuit against the City of Los Angeles claiming retaliation for reporting that they were subjected to an unlawful ticket quota. After deposition testimony revealed that several statements made in their complaint were untrue, one of the plaintiff officers dismissed himself from the lawsuit. Afterward, the City filed a motion for summary judgment against the remaining officer. During a meet and confer one month later, City informed the remaining plaintiff officer that it seek to recover attorney fees under Code Civ. Proc. section 1038 should he continue to pursue his claim. Instead of dismissing his suit, the officer filed his opposition to City’s motion for summary judgment. After oral argument, the trial court ruled in City’s favor on the summary judgment motion based on the officer’s failure to show two of the three required grounds, under Labor Code section 1102.5, for a whistleblower retaliation case – (1) that City’s acts subjected him to adverse employment actions; and (2) that he failed to establish causation.
City then successfully moved for $46,800 in attorneys’ fees. The officer appealed both the summary judgment grant and the attorneys’ fees award.
The 2/8 DCA affirmed. First, the officer had forfeited his challenge against the trial court’s grant of the summary judgment by failing to address the trial court’s ruling on the causation issue in his opening brief. Because the officer forfeited his challenge to the trial court’s ruling on causation, the 2/8 DCA did not have to make a decision regarding his challenge against the trial court’s ruling on adverse employment actions.
As to attorney fees, Code Civ. Proc. section 1038(a) allows for the award of attorney fees against an unsuccessful plaintiff if the action was brought without reasonable cause and good faith. Here, the 2/8 DCA found substantial evidence showed that the officer did not bring his action in good faith, and therefore did not have to address the reasonable cause issue.