No Express Findings Are Required When Denying a Fee Award to a Winning FEHA Defendant.
In our August 1, 2008 post, we discussed the Second District, Division Four’s unpublished decision in Joiner, where the appellate panel affirmed the denial of attorney’s fees to a successful FEHA defendant because plaintiff’s action was not frivolous, unreasonable, or without foundation. Now, Division Two of the same district has affirmed a similar fee denial to a winning FEHA defendant, relying on the same authority as did its colleagues in Division Four.
Division Two, in Mollayan v. County of Los Angeles, Case No. B192847 consolidated with B194800 (2d Dist., Div. 2 Aug. 15, 2008) (unpublished), relied on Cummings v. Benco Bldg. Servs., 11 Cal.App.4th 1383, 1387 (1992)—the same decision endorsed by Division Two in Joiner—to affirm the fee denial against the successful FEHA defendant.
Beyond that, Division Four—in a 3-0 decision authored by Justice Chavez—decided that the trial court did not err by failing to make express findings in support of its decision, because reversal is only required in the inverse situation, where a lower court fails to make express findings when awarding attorney’s fees against a FEHA plaintiff. (See Rosenman v. Christensen, 91 Cal.App.4th 859, 868 (2001).) Express findings were not required where a fee award was not granted against the losing FEHA plaintiff.