Second District, Division Two Affirms Award and Acknowledges that Findings of
Frivolousness Must Be Written/Specific in Nature.
As we have noted in past posts on actions brought under the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.), a court has discretion to award fees and costs to the prevailing party. (Gov. Code, § 12965(b).) In many instances, the fee-shifting statute favors plaintiffs, who are routinely awarded fees as prevailing parties, whereas defendants only obtain fees based on specific, written findings that their opponents’ actions were “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” (Cummings v. Benco Bldg. Services, 11 Cal.App.4th 1383, 1392, as reviewed in many of our posts under the category “Cases: Civil Rights.”) Simply because a plaintiff did not ultimately prevail at trial is not reason alone to award fees against an unsuccessful FEHA plaintiff. (Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).) However, in the next case, plaintiff was assessed with a substantial fee award, with the appellate court directly addressing the specificity of written findings necessary to sustain an award based on prosecution of a frivolous FEHA action.
In Trisler v. Los Angeles County Metro. Transp. Auth., Case No. B200770 (2d Dist., Div. 2 Dec. 10, 2008) (unpublished), plaintiff—who worked only 65 days for MTA before his employment was terminated—sued under FEHA for disability discrimination, failure to accommodate, and retaliatory discrimination. His retaliation claim was dismissed through a grant of an in limine motion, and the jury returned a verdict against plaintiff on the remaining counts. The trial court subsequently found that plaintiff’s prosecution of the case past the discovery stage was frivolous, awarding MTA $150,000 of its requested $179,921.81 in attorney’s fees (reducing the amount “to be conservative”). Plaintiff appealed.
The Second District, Division Two affirmed the $150,000 fee award against plaintiff.
There was plenty of evidence in the record below to support the lower court’s finding of frivolity. Plaintiff was not honest with the MTA about having physical restrictions (not telling interviewees about any disability) or a criminal history (also not telling them about a prior misdemeanor battery) when applying for employment. Plaintiff lied on his employment application with a subsequent employer, indicating he had never been terminated or convicted of a crime. Plaintiff never complained to any MTA supervisors about unfair treatment, but was fired because he has unhelpful or “missing in action” for prolonged periods on the job. Even though plaintiff survived summary judgment motion on his claims, this did not create a “bright-line rule” indicating a litigant can never be liable for attorney’s fees in the FEHA area. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4th 859, 866 (2001).) After discovery, plaintiff should have known—factual issues aside—that his FEHA claims were without merit, exposing him to fee recovery for continued prosecution of his action. The appellate court found that his situation was different than just having a weak case, but was acutely distinguishable because plaintiff continually distorted facts and could not produce any credible testimony to support his need for accommodations for any physical disability.
In Rosenman, the deciding appellate court imposed a “nonwaivable” requirement that a trial court make written findings that a plaintiff’s action was frivolous, unreasonable or groundless in all FEHA cases where attorney’s fee are awarded to a defendant. (91 Cal.App.4th at 868). In a footnote, the Rosenman court further suggested that lower courts should also make findings on plaintiff’s ability to pay a fee award. (Id. at 868-869 n. 42.) Because the lower court in Trisler did not make written findings on plaintiff’s ability to pay, plaintiff argued the matter had to be reversed and remanded. The Second District, Division Two found this omission was not prejudicial at all. At the hearing on the fees motion, the trial judge referred to plaintiff’s admissions at trial that he was independently wealthy, did not need another dime during his lifetime, and had extensive asset holdings. This testimony sufficed to demonstrate ability to pay, with both the trial and appellate courts dismissing a contradictory fee declaration from plaintiff indicating he only made $280 per month and was struggling to pay bills. The Court of Appeal did have this observation for future cases: “We agree with the Rosenman court that the better course of practice is for trial courts to make written findings on all factors that support an award of attorney fees to a defendant in a FEHA case, including the ability to pay attorney fees. But where, as here, the record makes clear that the trial court considered appellant’s failure to pay, we are satisfied that the public policy of not discouraging meritorious FEHA claims has been respected.” (Slip Opn., at p. 19.)
BLOG UNDERVIEW—In an interesting footnote on the Rosenman “written findings” requirement, the Trisler panel did note that the Ninth Circuit in Miller v. Los Angeles County, 827 F.2d 617, 621 n. 5 (9th Cir. 1978) had previously stated “a district court should not refuse to award attorney’s fees to a prevailing defendant …solely on the ground of the plaintiff’s financial situation.”