Use of Juror Declaration To Show “Close Case,” A Creative Approach, Was Not Accepted By Trial Court, But Appellate Court Did Not Rule It Out Under The Right Circumstances.
This next case involved a creative attempt to use a juror affidavit to negate the proposition that a FEHA case was frivolous, unreasonable or without basis after plaintiff lost and defendant then sought attorney’s fees on the fee-shifting ground requiring a showing of meritlessness and/or bad faith.
The appellate court in Stenehjem v. Akon, Inc., Case No. H039738 (6th Dist. Jan. 22, 2015) (unpublished) sustained the lower court’s refusal to consider it, but did recognize that it was not inadmissible for the usual reason of trying to impeach the jury verdict. Instead, the reviewing court left open that it might be a way to negate the fee-shifting elements in the right case.
The specific context was that plaintiff lost a FEHA case, and defendant moved for attorney’s fees on the ground that the case was frivolous, unreasonable, or unfounded under the FEHA fee-shifting standard for a prevailing defendant. The defense sought $71,760 in lodestar fees and $6,760 for “fees on fees,” although the lower court awarded only about one-fifth--$10,000.
The appellate court affirmed from plaintiff’s appeal. Plaintiff barely got out of the gate, because an inadequate record was presented upon review—only selected trial testimony was submitted. As we have said before in many prior posts, make sure you prepare an adequate record, including reporter’s transcripts—making sure you bring your own reporter to hearings (especially important ones) in this age of tightening judicial resources.
However, the appellate court also rejected plaintiff’s merits contentions.
Plaintiff argued that he escaped a nonsuit, showing his FEHA case was not frivolous or unfounded in nature. The panel found this argument nonpersuasive given the low standard that must be hurdled to defeat a nonsuit, with cases in this area holding that denials of a nonsuit/summary judgment do not preclude a finding of frivolousness or unreasonableness.
Plaintiff next argued this was a “close case,” presenting a juror declaration that at one point the internal polling was 7-5 in favor of plaintiff. The trial court found this declaration unreliable because it came from a dissenting juror. The appellate court found no abuse of discretion in this evidentiary ruling, but did not rule out that it could be probative in the right case—after all, it was not being presented to impeach the jury verdict or presented for the truth of the matter at issue.
The appellate court believed the lower court did consider plaintiff’s ability to pay, which is a requirement in a FEHA defendant fee-shifting request, given the modest amount actually awarded in fees to the defense.
Finally, in line with the recent decision of Robert v. Stanford University, 224 Cal.App.4th 67, 72 (2014) [discussed in our February 26, 2014 post], the appellate court found that the requirement of written findings on the FEHA fee-shifting elements could be satisfied by incorporating the detailed reasons recited by the trial court at the fee motion hearing.