Civil Rights: County Defeated FEHA-Based Harassment/Retaliation Claims Through Summary Judgment, But Fee Award To County Reversed On Appeal

$17,945 Fee Award Overturned Because No Bad Faith/Lack Of Reasonable Cause Even Though Case Was Found To Lack Ultimate Merit.

            In Delgado v. County of Los Angeles, Case No. B271913 (2d Dist., Div. 5 Feb. 13, 2018) (unpublished), County defensed an ex-employee’s FEHA harassment/retaliation claims through a summary judgment motion, with the trial judge later awarding County fees under Code of Civil Procedure section 1038, which allows trial courts to award public entities the attorney’s fees they incur for “unmeritorious and frivolous” lawsuits if the action was not brought in good faith and with reasonable cause.  The trial judge in this case awarded $17,945 in fees to County, 25% of its request, based on the premise that the retaliation claim was brought in bad faith.

            The appellate court affirmed the summary judgment grant, but reversed the fee award.  Although agreeing that the retaliation claim lacked ultimate merit, the record showed not all of it was untimely in nature and there was proof of record which could support the perspective that plaintiff had some evidentiary basis to bring her claim.