“Pocketbook” Was the Dispositive Factor in this One.
In a FEHA lawsuit, a prevailing defendant is only entitled to an attorney’s fees award upon a finding that the action was frivolous, unreasonable, or without foundation, with lower courts instructed to refrain from use of post hoc reasoning that translates a loss of the case into a chilling fee award in the civil rights area even though the more stringent frivolity requirements are not met. (Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978) [with California courts often looking to federal decisions in interpreting FEHA].) A key factor in a defense award is what we would term the “pocketbook” factor–such an award should not result in the financial ruin of an unsuccessful plaintiff. (Rosenman v. Christensen, Miller, Fink, Glaser, Weil & Shapiro, 91 Cal.App.4th 859, 868 (2001).) This pocketbook factor was dispositive in leading to an affirmance of an order denying the winning defense’s request for substantial fees in the next case we examine.
Above: The Pocketbook Factor. Shopping 1942. Library of Congress.
Jimenez v. Saddleback Memorial Medical Center, Inc., Case Nos. G043223/G043367 (4th Dist., Div. 3 Sept. 19, 2011) (unpublished) involved a plaintiff losing a suit with FEHA and related claims, based primarily on failure to accommodate a disability theory, with plaintiff being unsuccessful (among other things) because a “sub rosa” video demonstrated a much different health picture than his complaints at trial and due to his subsequent healthy representations at a physical exam for a new job. The trial judge initially signed a statement of decision where the term “frivolous” was used to describe the action, but this was later stricken when the judge realized this was inserted as a platform for a fee award by the winning defendants. The defense then sought to obtain an award of $464,704 in fees and an additional $30,000 in “fees on fees” (fees and costs to litigate the fee motion). The lower court denied the fee request, triggering an appeal by the defense.
Justice Moore, in a 3-0 decision, affirmed on behalf of the 4/3 court. The overarching reason was that the requested fee award would have ruined plaintiff, who grossed less than $30,000 a year and would have needed 17 years to pay off such a debt without paying any of his salary toward essentials. This would have had a devastating impact on his three dependents, his wife and two children. As it was, plaintiff was found liable for more than $29,000 in costs, enough of a punishment under the circumstances.