Federal and State Cases Require Consideration of “Pocketbook” Factor in FEHA Area.
Defendant must have been feeling pretty good. It had won a couple of prior appeals brought by a losing FEHA plaintiff/job applicant who unsuccessfully sued for national original discrimination under Title VII. Defendant moved for the fees in winning the two prior appeals, requesting $29,190 in fees but being awarded $20,000 as fees recovery.
Plaintiff appealed and defendant probably thought the trial court reduction in the request made the appeal smooth sailing.
Wrong. There is a “hitch” in the FEHA fee recovery area, especially when dealing with fees awarded to the defense (with the defense having to show that plaintiff’s action was frivolous, unreasonable, without foundation, or brought in bad faith–which had already been satisfied through the prior appeals). That hitch was discussed in Dolzhenko v. Valley Temps, Inc., Case No. B233449 (2d Dist., Div. 4 Aug. 22, 2012) (unpublished).
The fee award was reversed and remanded because appellant, maybe somewhat belatedly but through competent proof of record, claimed that he had no ability to pay such an award given he was using all of his net income just to make a living. (Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir. 1987); Villanueva v. City of Colton, 160 Cal.App.4th 1188, 1203 (2008) [relying on Rosenman, 91 Cal.App.4th 859].) Although agreeing that fee recovery could not be denied altogether on this “pocketbook” factor, the appellate court agreed that appellant’s financial condition needed to be considered in fashioning a fee award which served the deterrent purpose of the statute but not subject appellant to financial ruin.
Also, the trial court did not provide a reasoned basis for the hourly rate allowed to the winning attorneys, so this issue, too, needed to be relooked at on remand.