Judge: Michael P. Linfield, Case: 20STCV42257, Date: 2022-08-17 Tentative Ruling

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Case Number: 20STCV42257    Hearing Date: August 17, 2022    Dept: 34

SUBJECT:                 Defendant Pedro Rivera’s Motion for Attorney’s Fees and Costs

Moving Party:          Defendant Pedro Rivera (“Mr. Rivera”)

Resp. Party:             Plaintiff Maria Avalos (“Ms. Avalos”

Defendant Pedro Rivera’s Motion for Attorney’s Fees and Costs is DENIED.

I.           BACKGROUND

On November 3, 2020, Plaintiff Jane Doe filed a complaint against Defendants Cintas Acuario and Pedro Rivera alleging the following causes of action:

1.           Sexual Harassment

2.           Intentional Infliction of Emotional Distress

3.           Wrongful Termination

4.           Failure to Pay All Overtime Wages Owed

5.           Failure to Pay All Minimum Wages Owed

6.           Failure to Provide All Required Meal Periods

7.           Failure to Provide All Required Rest Periods

8.           Failure to Provide Accurate Wage Statements

9.           Failure to Pay Wages in a Timely Manner

10.       Failure to Pay All Wage Due Upon Separation From Employment

11.       Unfair Competition

On June 17, 2022, Plaintiff Jane Doe’s name was changed to Maria Avalos. A five-day jury trial was held from June 13-17, 2022.  At the conclusion of the trial, the jury returned a verdict for Defendants on the eight of the causes of action that were tried to the jury. (Minute Order, June 17, 2022, p. 2.)

On July 26, 2022, Defendant Pedro Rivera moved the Court “for an Order awarding Defendant attorney’s fees and costs. Defendant Pedro Rivera is entitled to an award of reasonable attorney’s fees because the claims asserted against him were frivolous, groundless, and baseless and/or asserted in bad faith and he is the prevailing party in the complete defense of all claims asserted against him brought by Plaintiff under California's Fair Employment and Housing Act (the “FEHA”) and under the Labor Code for unpaid wages.” (Motion, p. 2:7-12.)

On August 4, 2022, Plaintiff Maria Avalos opposed Defendant Pedro Rivera’s motion for attorney’s fees.

On August 10, 2022, Defendant Pedro Rivera replied to Avalos’ motion.

II.        ANALYSIS

A.          Legal Standard

 In civil actions brought under California’s Fair Employment and Housing Act (FEHA), “the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Government Code, § 12965(c)(6).) “[I]n the FEHA context, the trial court's discretion is guided by the principle that a prevailing plaintiff should ordinarily recover attorney fees unless special circumstances would render the award unjust, whereas a prevailing defendant may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith.” (Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 563 [cleaned up].)

The Legislature’s intent in enacting FEHA was to “protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account  race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” and to “provide effective remedies that will eliminate these discriminatory practices.” (Govt. Code § 12920.) For this reason, in the FEHA context courts display asymmetry in their treatment of prevailing plaintiffs and defendants in awarding attorney’s fees and costs.

B.          Discussion

1.           Plaintiff’s claims were not frivolous

“Breaking with the traditional American rule under which the prevailing party generally is not entitled to receive attorney fees, the Legislature created the FEHA fee shifting standard to encourage plaintiffs to serve as instruments for vindicating the state's policy against discrimination, retaliation, and harassment in the workplace. This equitable consideration simply does not come into play in the case of a prevailing FEHA defendant, no matter whether the defendant is an entity or an individual employee. The FEHA fee provision is designed to encourage plaintiffs of limited means to bring a meritorious suit; assessing attorney fees against such plaintiffs in nonfrivolous cases merely because they do not ultimately prevail would have a major chilling effect on potential plaintiffs and thereby undermine the Legislature's intent to promote the enforcement of FEHA.” (Lopez v. Routt (2017) 17 Cal.App.5th 1006, 1014.)

The U.S. Supreme Court’s Christianburg standard “applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties under Government Code section 12965(b). To reiterate, under that standard a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust. A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [cleaned up]; citing Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 416–417.) This standard applies to both employer and individual defendants who prevail on FEHA claims. (Lopez, 17 Cal.App.5th 1006.)

“An action is not frivolous simply because the plaintiff's FEHA claim failed. Where some evidence of retaliation is presented, an action will not be deemed frivolous.”  (Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784 [cleaned up].) 

A similar analysis would apply to other FEHA claims, such as the harassment claims presented in this trial. 

To conclude that Plaintiff’s claims were frivolous, this Court would have to determine that  Ms. Avalos’ claims were unreasonable, groundless, or without foundation when brought or that they were litigated past viability under an objective standard.

The Court finds it to be a close case as to whether Plaintiff’s claims were frivolous.  Plaintiff’s claims were uniformly rejected by a unanimous jury after only 40 minutes of deliberation.  (Minute Order, 6/17/2022, pp. 2, 4-5.)  No other witnesses corroborated her testimony of alleged sexual harassment.  Some of the incidents of alleged harassment occurred outside of the Statute of Limitations.

        On the other hand, “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”  (Gov’t Code § 12923(b).)  Plaintiff testified that she saw a therapist due to the alleged harassment.  Had the jury believed Plaintiff and disbelieved all of the defense witnesses, there was (barely) enough evidence to find in her favor. 

The Court believes that Plaintiff’s case was weak.  However, the Court finds that it was not frivolous.

III.     CONCLUSION

Defendant Pedro Rivera’s Motion for Attorney’s Fees and Costs is DENIED.