FEHA Prevailing Defendants: Do Not Despair—Proper Record Means That You Can Recoup Attorney’s Fees

Second District, Division Three Awards Fee to the Defense Where Plaintiff’s Case Found Objectively Baseless in Nature.

     Winning FEHA defendants, take solace. Up to this point, we have mainly reported on cases where losing plaintiffs have avoided paying attorney’s fees in cases involving Fair Employment Housing Act (FEHA) claims for discrimination. The overriding reason is that attorney’s fees are only awardable to the prevailing FEHA defendant where the plaintiff’s action is proven objectively frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. (Linsley v. Twentieth Century Fox Film Corp., 75 Cal.App.4^th 762, 766 (1999).) In the past, we have reviewed numerous decisions refusing to assess fee against plaintiffs based upon either Cummings v. Benco Bldg. Services, 11 Cal.App.4^th 1383, 1389-1390 (1992)—see our October 22, 2008 post on Cason v. Child and Family Inst. and referenced prior decisions--or Linsley—see our June 1, 2008 post on Fu v. L.A. County Transp. Authority. However, courts will award attorney’s fees to successful FEHA defendants under the right circumstances. The next case we review demonstrates that is the case, giving the defense hope for fee recoupment if the facts are right.

     Addison v. County of Los Angeles, Case No. B201007 consolidated with B203213 (2d Dist., Div. 3 Nov. 3, 2008) (unpublished) involved a FEHA plaintiff losing a summary judgment against a governmental entity and affiliated employees based on various torts alleging plaintiff was wrongfully terminated based on race. Aside from losing on the merits below, plaintiff suffered an adverse award of attorney’s fees in favor of County in the amount of $73,734. The trial court found plaintiff’s FEHA claims were groundless. Plaintiff appealed, losing challenges to the summary judgment grant and to the award of fees in favor of Los Angeles County.

     The Second District, Division Three, in a 3-0 opinion authored by Justice Croskey, recognized that FEHA fees were not to be granted to a defendant merely because plaintiff ultimately lost, if plaintiff had a reasonable ground for bringing suit.

     (Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978); accord, Linsley, supra, 75 Cal.App.4th at 766; Bond v. Pulsar Video Productions, 50 Cal.App.4^th 918, 921, 924 (1996); Cummings, supra, 11 Cal.App.4^th at 1389-1390.) However, the plaintiff losing in Addison was found to have brought a case utterly lacking in evidentiary support, having no evidence of racial animus and not rebutting legitimate, non-retaliatory actions for plaintiff’s termination.

     The “clincher” for objective baselessness came from plaintiff’s own admissions. During the course of the litigation, Addison made admissions indicating no threat of retaliation, no publication of dirty laundry outside of the County, and disobedience of employer orders not to use the email system for certain purposes. Because his own admissions showed he had no proof to support the FEHA claims, plaintiff should have discontinued the suit “when all discovery failed to produce evidence to support his allegations.” (See Moss v. Associated Press, 956 F.Supp. 891, 894-895 (C.D.Cal. 1996).)

     Although plaintiffs predominantly beat fee awards sought by prevailing FEHA defendants in most decisions we have thus far surveyed, this case illustrates that appellate courts will sustain trial court fee determinations in defendants’ favor where the right set of facts show that the underlying cases were objectively groundless in nature.