Defense Lost Two 128.7 Prior Sanctions Requests, But Got It On The Third Try, Doing Some Nice Things As Far As Amount Requested.
Dzhanikyan v. Liberty Mutual Ins. Co., Case No. B261113 (2d Dist., Div. 8 June 15, 2016) (unpublished) is a nice illustration of how good defense thinking and tenacity can produce a fee award in a FEHA case, where fees are not awarded unless the case was frivolous/unreasonable in nature.
What happened here was that plaintiff employee lost a FEHA-dominated case against the employer on a summary judgment motion. The defense earlier moved two times for CCP § 128.7 sanctions against employee, but the trial court denied them based on the procedural posture of the case. However, the defense did not give up but shifted focus to moving for fees as the prevailing party under the FEHA fee-shifting statute codified in Government Code section 12965. The defense also did something very smart: it limited its fee request as to time (only asking fees from the date of the summary judgment to dismissal of the case) and limited the fees during that period to 5/8ths of the work effort (given that the FEHA claims were only 5 of the 8 claims). That strategy worked, with the lower court awarding the defense $78,681 in fees.
The appellate court affirmed. Given that the FEHA claims were administratively barred and pursued in bad faith, the defense was awarded for its tenacity in finally finding the right fee entitlement basis—although the prior history certainly did not hurt in on appeal. (We, as bloggers, also would add that the defense’s reasonableness in limiting fees as to time and amount had some influence on the reviewing panel—just sayin’ ….).