FEHA Fee Awards: Third District Holds That Written Statement Of Findings Required Where Defendants Are Awarded Fees

Third District Reads Cummings As Mandating Written Findings of Meritlessness in Awarding Fees to the Defense in FEHA Actions.

      In past posts of August 1, August 10, and September 21, 2008, we have reviewed decisions which have followed Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1386-1388 (1992) in FEHA actions, especially for the rigorous standards required to award fees to defendants prevailing in FEHA cases.  The next decision from the Third District determined that written findings were required under Cummings when a defense-oriented fee award was made in a FEHA action.

     Generally, written statements of decisions are not required when determining fee awards.  (See Ketchum v. Moses, 24 Cal.4th 1122, 1140 (2001); Maria P. v. Riles, 43 Cal.3d 1281, 1294 (1987).)  However, this rule is not invariant and does not apply in special fee-shifting statutory situations. 

     The Third District, in Cason v. Child and Family Inst., Case No. C055987 (3d Dist. Oct. 21, 2008) (unpublished), made this abundantly clear in FEHA contexts where a fee award is contemplated in favor of the defense. Unless the FEHA action was unreasonable, frivolous, meritless or vexatious, fees normally are not awarded to prevailing defendants.  (See Gov. Code, § 12965(b); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); Cummings, supra, 11 Cal.App.4th at 1386-1388.)  In spite of these guiding principles in this specific substantive civil rights area, a trial court entered a perfunctory order awarding $57,388.50 in attorney's fees to prevailing FEHA defendants. 

     This did not suffice, according to the Court of Appeal.  Because the fee award represented a significant monetary sanction against the losing plaintiff (despite her attorney's appellate laxness in briefing), the appellate panel found merit in the contention that the trial court's ruling provided no insight for the award and was deficient in just iterating the statutory language as a basis for fee decision making.  Based on Cummings and subsequent cases, the Third District determined that California courts imposed a nonwaivable requirement that trial courts make written findings reflecting the subjective bad faith requirements of Christiansburg/Cummings. (See, e.g., Cummings, supra, 11 Cal.App.4th at 1388; accord, Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4th 859, 868 (2001); Jersey v. John Muir Med. Center. 97 Cal.App.4th 814, 831 (2002).)  Where the requisite findings are not made, the matter must be reversed and remanded for findings—which is exactly what happened in Cason even though the trial court had plenty of discovery admissions to supports its ultimate order. 

Cummings is alive, well, and well respected by California courts in the FEHA fee award arena.