Second District Affirms Principle in Recent Unpublished Decision.
FEHA, Government Code sec. 12900 et seq., is the California Fair Employment and Housing Act that prohibits racial discrimination and retaliation. Government Code section 12965(b) provides that the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees in an action that is filed by a private litigant. However, a judicial gloss has been created when it comes to awarding fees to a FEHA prevailing defendant: recovery is only authorized where the action brought is found to be “unreasonable, frivolous, meritless or vexatious.” See Cummings v. Benco Bldg. Services, 11 Cal.App.4th 1383, 1387 (1992). There, the appellate court reversed a defense fee award, where a woman had presented some evidence of age discrimination and her action “appeared to be a routine case in which the plaintiff merely failed to achieve success on her claim.” (
Id.at 1388-1390.)
Cummings was endorsed in toto by the Second District in the recent unpublished decision of Joiner v. Compton Community College Dist., Case No. B195817 (2d Dist., Div. 4 July 31, 2008), a 3-0 decision authored by Justice Manella.
There, a plaintiff lost a summary judgment under FEHA because the governmental defendant successfully shifted the burden of proof by demonstrating legitimate nondiscriminatory reasons for its conduct. Governmental entity moved for an award of defense fees, which was denied by the lower court and affirmed on appeal.
Justice Manella found Cummings, the leading case on the subject, to be dispositive. Plaintiff’s claims, though weakly supported, were not “without foundation” such that his action could be regarded as routine in nature. As a result, a fee award to the government was not warranted.
This case demonstrates that courts are loathe to award attorney’s fees against FEHA plaintiffs under a statutory scheme encouraging persons to utilize the courts to impede acts of racial discrimination.