FEHA/RFA Fee Shifting: Trial Court Did Not Abuse Discretion In Denying Defense Fee Request Of $204,723

Standard of Review Was Determinative in This One.

     When statutes give trial court discretionary calls on fee requests, appellate courts review such calls under a very deferential standard of review. This deferential standard—abuse of discretion--was determinative in the next case we review.

     In Ross v. Frank, Case No. B211125 (2d Dist., Div. 1 May 4, 2010) (unpublished), four non-employer defendants prevailed in a FEHA case but were denied their request for an award of attorney’s fees in the total sum of $204,723. Defendants had sought fees under two bases: (1) Government Code section 12965(b) [in FEHA cases, “the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs ….”]; and (2) Code of Civil Procedure section 2033.420(a) [failure to admit a proper request for admission gives rise to fees unless the court determines an objection to the request was sustained, a response was waived, the admission was inconsequential, the denying party had a reasonable basis to believe that party would prevail on the matter, or there was other good reason for the denial].

     Defendants appealed.

     They were not successful in trying to overturn the fee denials.

     On the FEHA issue, two factors (“at least two,” according to the appellate panel) supported the trial court’s denial of fees: (1) the fee request was unreasonably inflated in nature (Farris v. Cox, 508 F.Supp. 222, 227 (N.D.Cal. 1981)); and (2) plaintiff presented a declaration indicating she had no ability to pay the fee award (Villanueva v. City of Colton, 160 Cal.App.4^th 1188, 1203-1204 (2008) [ability to pay must be considered before awarding fees under FEHA to defendant]). Although defendants suggested plaintiff was lying about her financial condition, the Court of Appeal observed that they could have deposed her if they doubted the declaration, but chose not to do so.

     No RFA denial fees were justified because (1) defendants did not prove that they did not retaliate/harass plaintiff, but only showed plaintiff could not prove it; and (2) fee requesting defendants did not prove that the RFA denials were false as to other nonappealing defendants, given that the RFA requests asked plaintiff to admit her allegations were false as against all defendants. (BLOG OBSERVATION—If you are going to ask for RFA fee shifting, make sure your requests are narrowly tailored to avoid the result in this case.)