FEHA Attorney’s Fees: Sometimes Plaintiffs Must Pay!

When I evaluate a potential employment case, it’s always nice when there’s a cause of action under FEHA that provides for attorney’s fees. That gives plaintiff leverage in settlement discussions. Smart defense counsel will advise their clients that if plaintiff wins at trial, depending on the case, the attorney’s fees can sometimes dwarf the jury’s verdict. Especially if unwise defense counsel plays games and resists discovery requiring motions to compel, files a motion for summary judgment with hundreds of pages of exhibits that has no chance of prevailing, etc… all to simply increase billings and make it appear to defense counsel’s client that defense counsel is being “aggressive.”

But what happens if plaintiff loses in a case where it’s clear the client will lose? One of the FEHA myths is that plaintiff never has to pay defendant’s attorney’s fees, even when plaintiff loses. But that’s not the case – as the Second District Court of Appeal reminds us in a recent unpublished decision.

In this case plaintiff, a 31-year employee of Liberty Mutual, filed a lawsuit under FEHA alleging ethnic origin discrimination and retaliation along with other related causes of action after being terminated. Liberty Mutual filed a motion for summary judgment arguing in part that plaintiff’s DFEH administrative complaints were insufficient. Plaintiff then filed amended DFEH complaints, but the court said that in two of the three amended complaints, plaintiff made false allegations about the dates of the discrimination.

Well, the trial court ordered the FEHA causes of action stricken because plaintiff pursued them in bad faith. Plaintiff then tried to file her case in federal court, but apparently that didn’t go well.

So guess what? Defendant decided to file a motion for attorney’s fees under the prevailing party provision of FEHA—California Government Code § 12965(b). Smartly, Liberty Mutual only asked for fees for the time between the its motion for summary judgment and the dismissal of the FEHA causes of action, and only 5/8ths of its fees incurred during that time, since only 5 of the 8 causes of action were under FEHA.

So what did plaintiff do? Well, she didn’t argue that she pursued these claims in good faith or that the fees sought were excessive. Instead, she argued that the motion was premature since the court had not ordered summary judgment, the court had only stricken her FEHA claims, so, technically, Liberty Mutual was not a prevailing party.

But the court granted Liberty Mutual’s motion for attorney’s fees for $78,681 with payment stayed until the end of the lawsuit.

And then the lawsuit ended when the court granted summary judgment.

And plaintiff appealed, and lost. And now plaintiff owes Liberty Mutual’s lawyers $78,681 and Liberty Mutual’s costs on appeal.


The moral of this story for plaintiff’s attorneys and their clients is when you get a case that looked good but once discovery commences and things go south, don’t try to raise a sinking ship. Get out as fast as possible. You’ll be thankful to cut your losses, and so will your client. Because if you don’t, you won’t get paid and your client will paying your opposing counsel.

Dzhanikyan v. Liberty Mutual Ins. Co.
California Court of Appeal, Second Appellate District, Case No. B261113
June 15, 2016

Posted in Atty Fees, FEHA, Unpublished cases | Comments Off on FEHA Attorney’s Fees: Sometimes Plaintiffs Must Pay!

Summary Judgment Reversed: Disability Discrimination

California’s Fourth District Court of Appeal recently reversed a summary judgment for defendant employer in a lengthy opinion which made me wonder, “What was the trial judge thinking?”

In Moore v. Regents of the University of California, the court reversed summary judgment on five causes of action and sustained summary adjudication on only one cause of action.

Plaintiff sued her employer for disability discrimination, failure to accommodate and failure to engage in the interactive process, retaliation in violation of FEHA, retaliation and interference in violation of CFRA. The only claim plaintiff lost on was the retaliation claim under FEHA and that was only because the law changed after the events described in the complaint occurred, and the change in the law did not apply retroactively.

This is a fairly typical disability discrimination case in which an employee informs her employer that she has a medical condition and then the employer does everything it can to make the employee’s life difficult, eventually leading to a convenient RIF layoff. (That’s what they always say.)

I won’t get into all the details here, but this opinion does have a good discussion of pretext, and it’s definitely worth a read.

This is a good case because of the factual details and the court’s analysis. It’s a keeper, and a win for plaintiffs.

It also makes me wonder what the hell is going on at the Great Bastion of Progressivism, The University of California system. It seems almost a daily occurrence that some professor is sexually harassing a student or something. And they’re not even frat boys!

Even Mother Jones is wondering what the hell is going on. MJ even put together a list of alleged sexual improprieties!

It’s apparent after reading this case that disability discrimination is alive and well at the UC System, too, despite its own policies.

Moore v. Regents of the University of California
June 20, 2016

Posted in CFRA, Disability Discrimination, FEHA, Pretext | Comments Off on Summary Judgment Reversed: Disability Discrimination

Active California Ballot Initiatives

Here are the active ballot initiatives affecting California employment law generally. As a plaintiff’s attorney heretic on some issues, I like the Disability Access Litigation Initiative Statute which is necessary since some of my colleagues are in the business of filing crazy lawsuits against smaller businesses which really just amount to a shakedown and which contributes to the bad perception many have of lawyers.

Title and Summary Issued on January 25, 2016
Fiscal Impact Estimate Report

Andrew Rauch
Title and Summary Issued on January 7, 2016
Fiscal Impact Estimate Report

Shonda Roberts, Bruce Boyer
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Heidi Gallegos, Stephen Cox
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Heidi Gallegos, Stephen Cox
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Chuck Reed, Stephanie Gomes, Carl DeMaio, Pat Morris, Bill Kampe, Tom Tait
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Chuck Reed, Stephanie Gomes, Carl DeMaio, Pat Morris, Bill Kampe, Tom Tait
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Associational Disability Discrimination = Don’t Be An Ass

Large employers, armed with lawyers and lobbyists, complain about draconian legislation they say impedes their ability to conduct business profitably. As a plaintiff’s attorney heretic, I agree with them some of the time. But when you read cases like this, it makes me think some employers get what they deserve.

This is a story of a man whose son requires daily dialysis. He applied for a truck driver job and he told his prospective employer that he would need to work shifts that would enable him to administer his son’s dialysis. The employer, Dependable Highway Express, hired plaintiff and everything worked out well for both parties for about three years.

But then plaintiff got a new supervisor (and I might as well mention his name because he’s such an ass), Boldomero Munoz-Guillen, aka “Junior.” Junior refused to give plaintiff schedules that would accommodate plaintiff’s need to administer his son’s dialysis. Junior then fired plaintiff.

That’s why I think “ass” is a good name for Junior.

So plaintiff sued DHE for all of the relevant causes of action under FEHA, including wrongful termination in violation of public policy. And the trial court granted DHE’s motion for summary judgment! Just the skeleton facts outlined here should be enough to survive a motion for summary judgment.

Luckily, a Second Appellate District panel reversed the summary judgment.

This case is a good read because it discusses associational disability discrimination and as the Court notes, there aren’t many published cases dealing with it. Justice Grimes did “respectfully” dissent and some of Justice Grimes’ reasoning makes sense. But I think the tipping point was Junior’s cold-hearted treatment of plaintiff.

But that’s what happens to Big Business when they let the asses take over. They end up with more onerous legislation and case law which will keep their armies of lawyers busy. And all DHE had to do was recognize an ass and deal with him. And all of this wouldn’t have happened.

And now DHE gets to face the specter of a jury trial and answer to the people.

Castro-Ramirez v. Dependable Highway Express
April 4, 2016
246 Cal. App. 4th 180 (2016)

Posted in Associational Discrimination, FEHA | Comments Off on Associational Disability Discrimination = Don’t Be An Ass

Off Topic: In Defense of Judge Kozinski’s “Hortatory”

The Ninth Circuit Court of Appeals’ recent decision, Frost v. Gilbert, is certainly an entertaining read. It features a battle of sorts between Judge Alex Kozinski and a bunch of dissenters who say that a section of the opinion Kozinski authored is “merely hortatory.”

Hell, I didn’t even know what “hortatory” meant, so I had to look it up. It certainly looks like a delicious word from a bunch of dissenters.

According to Dictionary.com, “hortatory” means:

1. urging to some course of conduct or action; exhorting; encouraging:
a hortatory speech.

Well that’s boring. I thought it meant “bullshit” or something like that. But instead it means “urging some course of conduct or action.”

Sounds like what lawyers do every day in court. And I didn’t even know the meaning of the word! So now after work when my wife asks what I did that day, I will advise her that my work in court was “merely hortatory.”

Politicians engage in hortatory. The Donald, Ted and Hillary engage in hortatory every day when they ask voters to make sure and vote. And “Feeling the Bern” sounds pretty hortatory if you ask me.

The courts engage in hortatory. They complain of lack of funding and ask the legislature to give them more money. That’s merely hortatory. The courts encourage errant lawyers to turn over discovery. That’s merely hortatory. (Well maybe not merely if the hortatory is documented in an order.) The courts tell lawyers to “get to the point.” That’s hortatory. Lawyers ask the jury to convict or acquit – that’s just hortatory.

It’s all hortatory!

So what about Kozinski’s opinion encouraged the dissenting judges to open the pages of a yellowed thesaurus or to Google something or to ask a bookish clerk to find such a foreign word as hortatory?

Well Judge Kozinski was irritated by what appeared to be a hide-and-seek game being played by prosecutors who failed to turn over Brady material to the defense during a trial and even after the trial.

After reading the opinion, I found myself agreeing with Judge Kozinski. It sure looks to me like prosecutors were hiding from the defense plea agreements the prosecutors secured with a testifying witness. And Judge Kozinski did what good judges should do – he called out the prosecutors for their actions. And for this he was accused by the haughty hortatating (?) dissenters of hortatory!

I’m just glad to see that some judges are disturbed when prosecutors play games and I encourage other judges to follow Judge Kozinski’s example. But that’s just me being hortatory.

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Disability Discrimination: Employer’s Intent to Discriminate

In a disability discrimination case against an employer, does the employee have to prove that the employer’s alleged discriminatory action was based on the employer’s animus in proving intent to to discriminate?

Of course, that question was answered by the California Supreme Court in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) which held the requisite discriminatory intent is proven by showing the employee’s actual or perceived disability was a substantial motivating factor/reason for the discrimination.

So the employee doesn’t have to show animus or ill-will against the employee.

In a recent case from the Fifth District Court of Appeal, this issue was highlighted and the court explained that even if the employer acted against the employee based on erroneous or mistaken beliefs about the employee’s physical condition, the employer is still liable for disability discrimination if the employee shows his or her disability was a substantial motivating factor in the discrimination.

I thought that was settled with Harris, but apparently some defense counsel, who cheered when Harris was decided, urged the trial court to include in the jury instructions a requirement that the employee had to prove animus or ill-will motivated the employer.

Well, defense counsel convinced the trial judge that was appropriate and defendant prevailed at trial. But fortunately the Fifth District Panel read Harris and reversed the judgment.

Defense counsel might have figured they were so clever at trial, but now after the appeal and a new trial on damages, their client, the County of Stanislaus, will get to entertain an attorney’s fee petition from plaintiff’s counsel.

So there’s a little justice in defendant having to pay plaintiff’s counsel for having to brief and argue an appeal just to show defendant’s counsel misled the trial court.

And I’ll bet you a hundred bucks that when defense counsel does entertain plaintiff counsel’s petition for attorney’s fees, they will file an opposition arguing that even though plaintiff won, plaintiff didn’t win that much, and plaintiff’s attorney just got lucky.

It always cracks me up when I read those oppositions!

Wallace v. County of Stanislaus
2016 WL 758609
February 25, 2016

Posted in Disability Discrimination, FEHA | Comments Off on Disability Discrimination: Employer’s Intent to Discriminate

A Tawdry Affair(s)

The California Courts of Appeal haven’t been issuing any published FEHA decisions lately, so I look to unpublished decisions to see what’s going on.

I found a tawdry case from the Second District which reminded me of Abraham Lincoln’s advice to fellow lawyers:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Wise advice indeed.

Now we turn to Baez v. Burbank Unified School District.

This is a sexual harassment case. It’s a somewhat typical sexual harassment case, but atypically this case was tried three times to juries before plaintiff ultimately prevailed. After reading this case, I’m wondering if plaintiff is happy she filed the case and I wonder if plaintiff would have filed the case if she knew she would have to endure three trials to obtain a modest verdict.

Plaintiff was employed by Burbank Unified School District. She sued the school district and her supervisor for sexual harassment, alleging that she was subject to a hostile work environment as result of sexual advances made by her supervisors. I won’t get into all the details here, but the supervisor began sending sexually suggestive emails to plaintiff and told her that he had a romantic interest in her. This culminated in what plaintiff alleges was a sexual assault in his office.

After that, the District brought in an attorney to investigate the allegations involving plaintiff. The attorney investigator found plaintiff to be more credible than the individual defendant regarding the sexual assault. Nevertheless, plaintiff was disciplined, and the District’s superintendent sent her a letter stating the District’s investigator determined that while certain conduct may have taken place, it was either not as the plaintiff described and/or was not unwelcome. Of course, this was a misstatement of the investigator’s conclusions.

It’s important to note that at the time this was all going on, both plaintiff and her supervisor were married. There were also allegations that plaintiff was having an affair with another employee at Burbank Unified.

The parties went to trial in June 2009. The court allowed the District to introduce evidence that plaintiff was having an affair with a third person at Burbank Unified, and the District presented extensive evidence of the extramarital affair to the jury. Not only that, but the court also allowed evidence that plaintiff had a miscarriage during this time.

Not surprisingly, the District won this case with the jury returning a verdict for the District.

After losing on a motion for new trial, plaintiff appealed from the judgment and in another unpublished opinion, the Court of Appeal held that the trial court made a mistake in admitting the evidence of plaintiff’s error extramarital affair, among other things.

In October 2013, the second trial started. This time the court declared that the evidence of plaintiff’s extramarital affair with the third party would not be admissible. But the court did allow the District to offer testimony that plaintiff was being investigated for workplace misconduct prior to making her sexual harassment claim against her supervisor, but the court further ordered that any testifying witness should refer to such misconduct solely as an unrelated personnel matter involving plaintiff and an unnamed District employee—witnesses were not to refer to plaintiff’s alleged affair.

But that’s not how it went at trial. Defense counsel did not follow the court’s rulings, and the trial court was left with no other choice but to declare a mistrial.

Instead of settling this case, the parties decided to proceed to trial again the following week. At the end of the trial, the jury returned a special verdict in plaintiff’s favor on her cause of action for hostile work environment harassment against the District and her supervisor, and in favor of the supervisor on the causes of action for battery, false imprisonment, and intentional infliction of emotional distress (the alleged sexual assault). The jury further found plaintiff proved that her supervisor had acted with malice, oppression or fraud. The jury awarded plaintiff $199,398 in compensatory damages and $2 in punitive damages.

The jury also returned a special verdict in the District’s favor on the cross-claim it filed against plaintiff, and so the jury awarded the District $19,500 in compensatory damages and $1 and punitive damages.

After two full trials and another trial stopped in midstream by a mistrial, plaintiff ended up with less than $200,000 in damages. Which brings to mind Abraham Lincoln’s admonition of discouraging litigation.

Plaintiff’s dedicated and diligent and persistent trial attorneys did fine, though, because the trial court awarded them attorney’s fees of $3,224,569.30. And the Court of Appeal upheld this award.

In this factually intensive case, there are many things for lawyers to learn, especially lawyers thinking of taking sexual harassment cases. But the facts here don’t put any of the parties in a good light. It doesn’t matter who won, because plaintiff doesn’t look very good at the end of the day, her supervisor certainly doesn’t look good at the end of the day, and the Burbank Unified School District doesn’t look good at the end of the day. After all, the District had a superintendent, Dr. Gregory Bowman, who misrepresented results of an investigation and who had employees running amok. And not only did Burbank USD have to pay their attorneys their fees, they had to pay plaintiff’s attorneys their fees. And we know just from the award of attorney’s fees to the plaintiff’s counsel, the fees the school district spent in total are in the millions of dollars.

All of this over a tawdry affair or two. It seems as if there were no adults in this situation, and instead of the attorneys looking at the situation and encouraging the parties to settle, litigation ensued and went on for years including two trips to the Court of Appeals, all resulting in plaintiff’s modest award, and for that matter, the District’s modest award, capped with a large fee award to plaintiff’s counsel.

Of course, for all I know, the attorneys in the case may have begged their clients to resolve this matter. And if that’s the case, the parties have no one but themselves to blame for this whole affair. But if any of the attorneys involved in this case did not strongly encourage their clients to resolve this matter privately, or as privately as one can settle a case against the public school district, then those attorneys are at fault.

By saying this, I’m sure I will get some emails from those who believe that I’m saying that we should discourage women for from suing for sexual harassment claims. That’s not what I’m saying at all, because if plaintiff’s allegations are true, I think she should of gotten a verdict larger than what she did. But on the other hand, plaintiff apparently had an affair with another employee of the school district, or it at least was strongly suspected, and who in their right mind would want all of this to come out in open court? And not only in open court, but in opinions issued by the Court of Appeals? And even though these are unpublished opinions, they’re still going to be there for all of us to read in the future. And it’s not just lawyers who can read them, because now with Google Scholar, Fastcase and other free and publicly available legal research services, the public can easily access these opinions, too. Including prospective employers.

Obviously plaintiff’s counsel did a very good job for her. Legally speaking, that is. But I hope her counsel did counsel her and tried to get her to settle the matter. And of course that may have happened and it probably did happen, and it’s certainly not unheard of for a public school district to fight cases tooth and nail when it’s unwise to do so, and apparently that was the case here. Because why would anyone in hir or her right mind at the Burbank Unified School District want this case to go to trial? It looks like the District had a bunch of employees who didn’t know how to behave in the workplace. The District’s not proving anything by prevailing on their cross-claim, or by trying to look tough in a courtroom, other than the fact that they have employees that are out of control and they don’t know how to control them. And the District has attorneys who are out of control and the District doesn’t know how to control its attorneys.

It looks to me as if plaintiff’s counsel had to go to trial because the District wouldn’t settle, or probably made “nuisance” settlement offers thus forcing plaintiff to go to trial.

Apparently the Burbank Unified School District loves its lawyers more than its students.

Baez v. Burbank Unified School District
No. B254852, January 25, 2016.


Posted in Sexual Harassment, Unpublished cases | Comments Off on A Tawdry Affair(s)