Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. GIC836797. John S. Meyer, Judge.
IRION, J.
Automobile Club of Southern California (ACSC) appeals from a postjudgment order denying its motion for an award of attorney fees after having successfully obtained summary judgment in the employment discrimination action filed against it by Linda Bratcher. As we will explain, we conclude that the trial court did not abuse its discretion in denying ACSC's motion for attorney fees. Accordingly, we affirm.
Bratcher's appeal of the trial court's summary judgment ruling in favor of ACSC is the subject of a separate appeal, Bratcher v. Automobile Club of Southern California, case No. D048328.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2003, ACSC terminated Bratcher from her employment as a mobile claim adjuster. At the time, she was 51 years old and had taken a six-week medical leave of absence with disability pay in late 2002 because of migraine headaches. She had also received progressive verbal and written warnings about her deficient employment performance during the year leading up to her October 2003 termination.
Nearly a year after Bratcher was terminated, she filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging that she was terminated by ACSC because of her age. Bratcher then filed this lawsuit against ACSC.
Bratcher filed a new complaint with the DFEH on September 22, 2005, during the litigation of this action, which alleged discrimination based on age, gender and physical disability.
The operative complaint in this action is the first amended complaint, which contains three causes of action. The first cause of action alleges that Bratcher suffered employment discrimination and harassment due to her age in violation of Government Code section 12941 of the Fair Employment and Housing Act (FEHA). The second cause of action alleges that Bratcher was wrongfully terminated by ACSC in violation of public policy in contravention of Government Code section 12940, subdivisions (h) and (k), in that she was terminated because of a physical disability consisting of severe migraine headaches. The third cause of action alleges that ACSC violated the California Family Rights Act (CFRA) (Gov. Code, § 12945.2, subd. (a)) in that it denied "her statutory right to family care and medical leave."
The first amended complaint does not appear in the clerk's transcript prepared for this appeal. However, we have reviewed it in the record prepared for Bratcher's appeal in case No. D048328.
ACSC filed a motion for summary judgment, or in the alternative for summary adjudication (the first summary judgment motion). ACSC argued that Bratcher was unable to establish the necessary elements of any of her three causes of action because the undisputed evidence showed that she was terminated for poor performance rather than because of her age or physical condition, she was not harassed because of her age, and she did not seek to take a leave under the CFRA and did not file a claim regarding a violation of the CFRA with the DFEH.
The documents associated with the first summary judgment motion are contained in the record for Bratcher's separate appeal, case No. D048328.
In her opposition to the first summary judgment motion, Bratcher argued, among other things, that the motion should be denied without prejudice under Code of Civil Procedure section 437c, subdivision (h) so that she could conduct additional discovery, as new counsel had just substituted into her case.
The trial court issued a tentative ruling on the first summary judgment motion. As to the first cause of action, the tentative ruling stated that although "[t]here is little evidence submitted" to support the allegations of discrimination and harassment based on age, "it appears from the opposition that facts essential to justify opposition may exist but cannot be presented at this time" so that "the motion on the [first] cause of action should be continued." As to the second cause of action for wrongful termination based on a physical disability, the trial court indicated that it would deny the motion because "[a] reasonable trier of fact could determine that plaintiff had a medical condition that affected her job performance, her employer was aware of her medical condition, made no offers of accommodation, and terminated plaintiff because of that medical condition." As to the third cause of action, for violation of the CFRA, the trial court indicated that it would grant summary adjudication, but did not explain the basis for its conclusion.
At the hearing on the first summary judgment motion, ASCS agreed that additional discovery would be appropriate, and the trial court decided to allow additional discovery. The trial court thus rejected its tentative ruling and denied the first summary judgment motion without prejudice pursuant to Code of Civil Procedure section 437c, subdivision (h) as to each of the three causes of action in the complaint.
After a period for the parties to conduct discovery, ACSC filed and served a new summary judgment motion (the second summary judgment motion).
The trial court granted ACSC's second motion for summary judgment and entered judgment in favor of ACSC. In its ruling, the trial court referred to the burden-shifting analysis applicable to claims for employment discrimination. Under that burden-shifting analysis, "[f]irst, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' [Citation.] Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
A prima facie case of disparate treatment employment discrimination generally includes evidence showing "(1) [plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355, italics added.)
The trial court ruled as to the first and second causes of action (premised on age-based and disability-based discrimination), that Bratcher "could not establish a prima facie case of discrimination because she was not performing her job satisfactorily," and Bratcher also had not produced evidence to rebut ACSC's showing that it had a legitimate reason for her termination. The trial court also pointed out as to the second cause of action that Bratcher did not establish that ACSC failed to provide her with reasonable accommodation for her disability or medical condition. The trial court ruled against Bratcher on the third cause of action for violation of the CFRA because she had not exhausted her administrative remedies and there was no evidence that she requested or was denied a family or medical leave in the applicable time period.
Following entry of summary judgment in its favor, ACSC filed a motion seeking an award of attorney fees pursuant to Government Code section 12965, subdivision (b). The trial court denied the motion. ACSC appeals from the order denying its motion for attorney fees, arguing that the trial court abused its discretion in denying the fee award.
A postjudgment order denying a motion for attorney fees may be appealed pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656.)
II
DISCUSSION
A. Applicable Legal Standards
We first examine the legal standards applicable to ACSC's motion for attorney fees.
Government Code section 12965, subdivision (b) provides that in actions brought under FEHA, "the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees." In analyzing a request for attorney fees under Government Code section 12965, subdivision (b), ". . . California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act . . . ." (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386 (Cummings).)
An award of attorney fees to a prevailing defendant in an employment discrimination action " 'should be permitted "not routinely, not simply because [the defendant] succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." ' " (Cummings, supra, 11 Cal.App.4th at p. 1387, quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421.)In this context, " 'the term "meritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case,' " and the " 'term "vexatious" in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him.' " (Cummings, at p. 1387.) In sum, a defendant may be awarded attorney fees " 'upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.' " (Ibid.)
A successful defendant's request for attorney fees should be denied unless the employment discrimination lawsuit was frivolous, unreasonable or without foundation because "[a]ny other standard would have the disastrous effect of closing the courtroom door to plaintiffs who have meritorious claims but who dare not risk the financial ruin caused by an award of attorney fees if they ultimately do not succeed." (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 874.) Case law recognizes that it is " 'important that [the] court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. . . . No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. . . .' " (Cummings, supra, 11 Cal.App.4th at p. 1388.)
B. Standard of Review
Our resolution of this appeal depends heavily on the deference that we must accord to the trial court in reviewing its decision.
Government Code section 12965, subdivision (b), which states that the trial court may award attorney fees to the prevailing party, plainly allows the trial court to exercise its discretion in deciding whether to make an award of fees. We apply an abuse of discretion standard of review to a trial court's decision denying ACSC's motion for attorney fees under Government Code section 12965, subdivision (b). (Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 600.)
"Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598 (Connolly); see also Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) " ' "The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]' " (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449, quoting In re Cortez (1971) 6 Cal.3d 78, 85-86.) " 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.' " (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 (Dept. of Parks).)
C. The Trial Court Did Not Abuse Its Discretion
We next examine the trial court's ruling denying ACSC's motion for attorney fees in order to determine whether the trial court abused its discretion by "exceed[ing] the bounds of reason" (Connolly, supra, 23 Cal.3d at p. 598) or " 'transgress[ing] the confines of the applicable principles of law' " (Dept. of Parks, supra, 233 Cal.App.3d at p. 831).
In its ruling denying ACSC's motion for attorney fees, the trial court extensively reviewed the procedural history of this action, including its initial assessment of the merits of Bratcher's claims in its tentative ruling on the first summary judgment motion. Among other things, the trial court explained: "While this case did not appear strong at the time of the first motion for summary judgment, there were sufficient facts alleged in the complaint to cause a party to have reasonable grounds to plead the causes of action alleged. At the time of the first summary judgment motion, there were triable issues of material fact relating to the 2nd cause of action. The Court tentatively determined that it appeared that facts essential to justify the opposition to the 1st cause of action may exist but could not be presented at that time . . . ." The trial court also noted that the parties conducted further discovery after the first summary judgment motion and observed that "[a]s discovery continued, a potential claim for reasonable accommodation arose."
After having reviewed the history of the proceedings, the trial court properly set forth the legal standards applicable to a request for attorney fees under Government Code section 12965, subdivision (b), and it concluded that that "plaintiff's claims were not 'frivolous, unreasonable or groundless.' " Accordingly, the trial court exercised its discretion to deny ACSC's motion for attorney fees.
ASCS contends that the trial court abused its discretion in not awarding attorney fees, because "[s]urely a plaintiff who cannot even meet the minimal standard to make a prima facie case of discrimination, harassment or another FEHA-type claim has maintained a cause of action that was unreasonable, frivolous, and meritless, and possibly also vexatious."
We are familiar with the relative merit of Bratcher's employment discrimination action both from having reviewed the record in this case and from reviewing the record in Bratcher's appeal of the trial court's judgment in favor of ACSC. However, the question before us is not whether we would have reached the same conclusion as the trial court with respect to whether Bratcher's lawsuit was frivolous, unreasonable or groundless. As we have explained, because we apply an abuse of discretion standard of review, our role is to determine whether the trial court's decision to deny ACSC's motion for attorney fees was outside the bounds of reason.
Here, the trial court based its decision in reason and properly applied the governing legal principles, and thus it did not abuse its discretion. Premised on its familiarity with the matter, the trial court determined that, as reflected in the complaint, Bratcher had "reasonable grounds to plead the causes of action alleged" and that "[a]t the time of the first summary judgment motion, there were triable issues of material fact relating to the 2nd cause of action." Through this explanation, the trial court provided a reasoned basis for its conclusion that Bratcher's action was not frivolous, unreasonable or groundless. Based on this record, the trial court did not abuse its discretion by denying ACSC's motion for attorney fees.
In support of the contention that the trial court abused its discretion, ACSC relies on cases that have upheld a trial court's decision to award attorney fees to a prevailing defendant in an employment discrimination action under the FEHA by determining that the plaintiff failed to establish a prima facie case of discrimination. (See, e.g., Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 920; Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 427.) These cases are not applicable because they address a different question from the question presented in this appeal. Here, we consider the distinct question of whether the trial court abused its discretion in denying a motion for attorney fees. ACSC has not cited a single case in which an appellate court has determined that a trial court abused its discretion by denying a prevailing defendant's motion for attorney fees under Government Code section 12965, subdivision (b). We have located no authority that would support ACSC's contention that an abuse of discretion exists under the facts of this case.
Further, we reject the implied premise of ACSC's argument, namely, that an award of attorney fees is required when a trial court ultimately concludes in ruling on a motion for summary judgment that a plaintiff cannot make a prima facie case of employment discrimination. As we have explained, the statute gives the trial court the discretion to award attorney fees, and we will affirm its decision to exercise its discretion as long as its decision is not outside the bounds of reason. Here, the trial court had a rational reason for rejecting ACSC's request for attorney fees and properly identified the governing legal standard. Accordingly, the trial court was well within its discretion to deny ACSC's motion for attorney fees.
DISPOSITION
The postjudgment order denying ACSC's motion for attorney fees is affirmed.
WE CONCUR: O'ROURKE, Acting P. J., AARON, J.