California Labor &
Employment Law Blog
Apr 11, 2008

Plaintiff Ordered to Pay Employer’s Attorneys’ Fees in FEHA Case

Topics: Court Decisions, Discrimination, Harassment & Retaliation

A Plaintiff alleging racial discrimination and retaliation against his employer was ordered to pay the employer's attorneys' fees after the employer obtainedsummary judgment on all of Plaintiff's claims. In Villanueva v. City of Colton, 160 Cal.App.4th 1188 (2008), Plaintiff was employed by the City of Colton in its wastewater division. After being demoted to a lesser paying position following a reduction in force, the Court foundthatPlaintiff's demotion was due tolegitimate non-discriminatory reasons, including Plaintiff's prior incident of mishandling an alarm incident and his lack of seniority based on continuous service.The employer filed a motion for summary judgment and the essence of its position was that, in light of the negligent manner in whichPlaintiff had handled the prior alarm incident, and the elimination ofPlaintiff's position being due to the City's budget shortfall and resulting reduction in force, it had legitimate non-discriminatory reasons to defeatPlaintiff's claim of pretext for the demotion. WhilePlaintiff attempted tointroduce evidence of allegedly racial remarks by variousindividuals at the City, all of this evidence was properly excluded for various reasons. Moreover,Plaintiff was removed fromhis higher-paying position instead of removinganother employee holding the same position, who had more seniority, and theemployee who was not demoted was also Hispanic, like Plaintiff, giving theCourt further reason to believe thatPlaintiff's demotion was not based on race.

The employer sought an award of attorneys' feesto be paid byPlaintiff, based on CaliforniaGovernment Code Section 12965(b), which authorizes an award of reasonable attorneys' fees and costs to the prevailing party in a FEHA case under certain circumstances. The trial court awarded the employer nearly $40,000 in attorneys' fees.The Court of Appeal affirmed the award, noting that the employer's entitlement to the award of attorneys' fees under the statute "cannot seriously be questioned" and further stated that "indeed, the record reflects overwhelming evidence that the lawsuit was unfounded, unreasonable, and frivolous."

Plaintiff argued that the trial court was required to take into consideration his ability to pay when making a fee award. However, the Court of Appeal held that the award of attorneys' fees was proper because the Plaintiff offered no evidence of any kind regarding his inability to pay. The Court of Appeal noted that, in responding to the employer's request for attorneys' fees,the Plaintiff could easily have offered a declaration setting forth his income and other information that would lend support to his position. Thus, the Court of Appeal held that even though it agreed "that a trial court has an obligation to consider a losing party's financial status before assessing attorney fees under the FEHA,on therecord before us we are unable to say that the court's fee award was an abuse of discretion."

What does this mean for employers? Practically speaking, if a plaintiff need only provide someevidence to the trial court of their inability to pay such an award,then the point may be moot in many cases.Still, this decision is a good sign for employers, since it is a cautionary tale to plaintiffs pursuing frivolous FEHA claims.Italso allows for atleastmild optimism that employers mayactually be able to recoup some of the costs involved in defendingfrivolous claims, since not all plaintiffs are necessarily unable to pay.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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