Civil Rights Plaintiffs, Beware, When You Lose a Lot of Rulings Along the Way, Having to Rely on Isolated Incidents Rather Than a Pattern of Conduct—Fees to the Other Side May Follow.
Given that the fee-shifting statute is decidedly pro-plaintiff, a FEHA plaintiff was likely stunned when she was hit with a $206,368.50 attorney’s fees award after losing her case based on various pretrial motions. However, she failed to recognize that the same fee-shifting statute does allow for an award of fees against a non-prevailing plaintiff and in favor of the defense if a case is frivolous, unreasonable, and groundless.
Plaintiff’s appeal of the fees award in Kenitzer v. Sierra Joint Community College Dist., Case No. C067738 (3d Dist. Feb. 28, 2014) (unpublished) was unsuccessful.
The record showed that plaintiff lost her case based upon demurrer and summary judgment proceedings which fleshed out that she did not suffer an adverse employment action, relied on a continuing violation doctrine to statutes of limitations which was unreasonable in nature, and showed a few isolated incidents not causally supporting her disability harassment claims.
However, here is a real practice pointer in this area. A key determination that must be considered and made (in some form, whether written or oral, see our February 26, 2014 post on the published Robert v. Stanford University decision on this issue) is whether the losing plaintiff has an ability to pay—the “pocketbook factor.” Here, no evidence was submitted at all, so this consideration was not in play and was something the appellate court did not have to dwell upon.