Pocketbook, Pocketbook, Plus Lack Of Frivolity Were The Reversing Factors.
If you do not think that judges and appellate justices are not attuned to financial disparity, Alvarez v. Bank of America, Case Nos. B238087/B242275 (2d Dist., Div. 4 Jan. 19, 2017) (unpublished) might change your mind or at least provide mollifying food for thought.
11 plaintiffs brought various FEHA discrimination cases and lost them in a summary judgment proceeding, based primarily on a BofA independent investigation showing a true objective basis to discharge plaintiffs based upon fraudulent conduct. However, the racially-neutral basis for discharge was not revealed until some time after the onset of the litigation. Later, BofA moved to recoup about $760,000 in attorney’s fees under the theory the FEHA suit was frivolous in nature. The trial court ultimately agreed, awarding BofA $626,821.22 in fees.
The summary judgment merit ruling was affirmed, but the fee award was reversed as a matter of law.
First of all, the appellate court believed the trial judge likely ignored plaintiffs’ declarations that they could not pay for the requested fees, which is a relevant concern under FEHA. However, rather than remand, the 2/4 DCA decided that the fee awards could be reversed as a matter of law: BofA claimed the actions were frivolous at the outset, but the record showed that it was only during ongoing discovery stage that plaintiffs learned about the internal investigations showing fraudulent conduct which would show the actions were frivolous during the lawsuit “prosecution” stage. Given that the action was not frivolous at the outset, fee awards reversed.
Comments