Plaintiff Did Not Attempt To Replead Certain Claims In Amended Complaint And Defense Failure On CCP § 128.5 Sanctions Motion May Have Salted Away The Result.
“Pocketbook”, a concern in many civil rights fee-shifting cases, may be helped by subsequent efforts of a civil rights plaintiff and unsuccessful sanctions efforts by the defense. Figueroa-Manjung v. Behroozan, Case No. B267942 (2d Dist., Div. 4 Sept. 1, 2017) (unpublished) illustrates how the interaction of these factors may influence a result both before trial and appellate courts.
In this one (albeit reversing a demurrer to a public policy state claim), the defense cross-appealed from a trial court’s refusal to grant attorney’s fees to defendant as the prevailing party after a demurrer based on the theory that a FEHA claim was frivolous/pursued in bad faith. The defense sought $65,000 in fees, a request rebuffed at the lower court and intermediate appellate levels.
The appellate court did not believe that time-barring of the FEHA claims required a merits-based determination deserving of fee recovery to the defense, relying on a refusal to award fees in and a failure to exhaust administrative remedies case. (Hon v. Marshall, 53 Cal.App.4th 470, 473 (1997).) Beyond that, there were other factors which likely influenced the appellate court in affirming the denial of fees to the defense: (1) plaintiff dropped FEHA and another statutory claim from a second amended complaint (after the demurrer on the statute of limitations issue, basically acknowledging defeat); and (2) the defense previously lost a CCP § 128.5 sanctions motion against plaintiff.