Second District Finds No Abuse of Discretion in Trial Judge’s Determination That FEHA Claim Was Not Frivolous Despite a Prior Reversal in a Previous Appeal.
California’s Fair Employment and Housing Act (FEHA) provides “the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code, § 12965(b).) A successful defendant in a FEHA action may recover attorney’s fees if the plaintiff’s claim was frivolous, unreasonable, meritless, or vexatious, although frivolity does not exist merely because the plaintiff’s FEHA claim failed or where some evidence of discrimination is presented. (Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1387, 1389-1390 (1992).) The next case exemplifies the application of these principles, albeit in a very unusual procedural context.
In Fu v. Los Angeles County Transp. Auth., Case No. B200012 (2d Dist., Div. 5 May 29, 2008) (unpublished), plaintiff Fu won a $1.68 million judgment in a FEHA action. The Second District reversed the judgment in a prior appeal, determining (1) the wrongful termination claim was barred by a release signed by Fu at the time of termination, and (2) the age discrimination claim was not supported by substantial evidence because Fu failed to adequately rebut the MTA’s nondiscriminatory basis for his termination. MTA then sought attorney’s fees of $226,083.52 against plaintiff after the prior appellate decision became final.
The trial judge denied the fee request, a determination affirmed by the Second District in an unpublished decision authored by Justice Kriegler.
The Court of Appeal found the trial judge was within his discretion in denying fees because: (1) he had previously denied summary judgment on plaintiff’s claim; (2) the jury had returned a substantial verdict based on the facts before it; (3) the prior opinion reversing the jury verdict did not deem the action frivolous; and (4) Fu had presented a prima facie case of discrimination, although he failed to rebut MTA’s nondiscriminatory termination defense.
MTA also made an interesting argument that fees were justified because the release signed by Fu made his FEHA claim frivolous, citing the same appellate court’s result under different facts in Linsley v. Twentieth Century Fox Film Corp., 75 Cal.App.4th 762 (1999). Not so, said the appellate court, which distinguished its cited decision this way: “Linsley does not hold or suggest that all FEHA cases resolved on the basis of a release are frivolous and warrant an award of attorney fees, because to do so would divest the trial court of its discretion in awarding or denying fees.” (Slip Opn., at p. 8.)
Even though losing a substantial jury verdict, the losing FEHA plaintiff did not have to reimburse MTA for substantial fees previously spent in “defensing” the case through the prior appeal reversal.
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