Published Decision Affirms Lower Court Denial of Fees.
In Morrison v. Vineyard Creek, Case No. A127476 (1st Dist., Div. 5 Mar. 29, 2011) (certified for publication), plaintiff resolved a retaliatory eviction/FEHA dispute via settlement with defendants by which no wrongdoing was admitted but agreed that plaintiff could operate a family child care home without fear of retaliation and also paid her some damages for their delay in acknowledging her right to operate the home. Plaintiff then filed to recover a whopping total of $318,212.80 in attorney’s fees from defendants, a request denied by the lower court.
On appeal, the fee denial was affirmed.
Under FEHA, the language in the settlement agreement did not really get her declaratory or injunctive relief given that the settlement bargain really made up for past alleged wrongs, although no admission of wrongdoing was made by defendants. Nevertheless, the appellate court did examine the merits of plaintiff’s claims to see if defendants in fact violated the anti-retaliation statute or FEHA.
The appellate court concluded they did not. Although Civil Code section 1942.5 does provide for an award of fees to a prevailing party in a retaliatory eviction action where they are requested upon initiation of the action, defendants did not really threaten to evict plaintiff but only at best threatened to enjoin her from operating the family child care home in her apartment--a big difference according to the Court of Appeal. Beyond that, any expression of opinions by defendants or their counsel as to rights under the lease did not prove retaliation, by analogy to conduct found privileged in SLAPP decisions. With respect to the FEHA claim which also carried a fee shifting statute for prevailing plaintiffs, there simply was no evidence that defendants harassed or discriminated against plaintiff beause the source of her income was going to be a family care home as opposed to some other source.