Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04187321
Lambden, J.
Dennis W. Brown sued his employer, Performance Contracting, Inc. (PCI), for age discrimination under the Fair Employment Housing Act (FEHA) and under the common law. The matter proceeded to a bench trial, and the court found against Brown on both of his discrimination claims. Brown appeals, contending that he should have prevailed because he proved his prima facie case of illegal employment discrimination and PCI failed to rebut the presumption of discrimination. We are unpersuaded by his argument and affirm the lower court’s judgment.
PCI was incorrectly sued as Performance Contractors, Inc.
Following the judgment, PCI moved for attorney fees. The trial court denied the request, and PCI appeals from this order. PCI contends that the lower court abused its discretion in denying it attorney fees because Brown’s lawsuit was unreasonable, frivolous, meritless, or vexatious. Although we agree that that the evidence supporting Brown’s lawsuit was weak, we conclude that it was not without any merit or frivolous. Accordingly, we uphold the lower court’s denial of attorney fees.
At the parties’ request, we consolidated the appeals from the judgment and from the order denying attorney fees.
BACKGROUND
The Parties and Their Contract
Brown, who was born on June 14, 1947, joined the International Association of Heat and Frost Insulators and Asbestos Workers Local 16 (union) in 1986. He worked principally as a hazardous material handler mechanic, removing asbestos-containing insulation. In 2001, Brown began training to become a credentialed insulation installer.
Between 1999 and 2004, the master agreement between the union and the Northern California Chapter, Inc., Western Insulation Contractors Association (master agreement) governed the terms and conditions of Brown’s employment. Under this agreement, once an employer requested workers, the union dispatched workers in an order determined by the length of time the workers had been out of work. Workers who had been out of work the longest were dispatched first.
Pursuant to the master agreement, employers had the option to accept or reject the dispatched worker without just cause. Section 107 of the master agreement, known as the “turnaround provision,” provided: “The Individual Employer may reject any employee or applicant for employment referred to it by the Employment Office of the Union. In its right of rejection, no Individual Employer shall reject any individual who has never previously been employed by said Individual Employer. Any employee or applicant for employment so rejected shall receive One Hundred Dollars ($100.00) reimbursed expenses, plus travel expenses and subsistence . . . if applicable . . . . In the exercise of his or its right to reject any employee or applicant for employment, the Individual Employer shall not discriminate against any such employee or applicant for employment by reason . . . of age, race, color, religion, sex, or national origin.”
PCI is an insulation contractor that hires union members to work on projects in Northern California pursuant to the master agreement. Brown worked for PCI six or seven times prior to being turned around twice by PCI in 2003.
Brown’s Lawsuit
Brown filed an administrative complaint of discrimination and an amended complaint on June 17 and July 25, 2004, respectively, with the Department of Fair Employment and Housing (DFEH). He asserted that on January 20, 2003, “and again in October 2003[,]” he was denied reinstatement to the position of insulator. He alleged as follows: “[The union] referred me to the company because they [sic]had an open position for an insulator. I had previously worked for the company the year prior. Although I had experience, I was not rehired. I am aware of other persons in the protected age category who also were denied rehire into this position. . . .”
Brown filed a first amended complaint in the superior court against PCI and others in March 2005 for age discrimination under the FEHA and under the common law. With regard to PCI, Brown alleged that PCI had rejected him for work on January 20 and on August 26, 2003, and in October 2003.
Brown also filed his complaint against his union and another employer that had turned him around, F. Rodgers Insulation, Inc. Brown voluntarily dismissed the union. We affirmed the lower court’s grant of summary judgment in favor of F. Rodgers Insulation, Inc. against Brown’s complaint (Brown v. F. Rodgers Insulation, Inc. (Mar. 2, 2007, A114204) [nonpub. opn.]). We also affirmed the lower court’s award of attorney fees to F. Rodgers Insulation, Inc. (Brown v. F. Rodgers Insulation, Inc. (Mar. 5, 2007, A115370) [nonpub. opn.]).
Both PCI and Brown filed motions for summary judgment. The court denied both motions on April 10, 2006. The lawsuit proceeded to a bench trial in May 2006 before Judge Gordon S. Baranco.
The Trial
At trial, both parties presented evidence regarding PCI’s turning Brown around in January and in September 2003. It is unclear from the record before us whether Brown abandoned his claim for any alleged turnaround in August 2003. The record also is unclear regarding Brown’s claim that he was turned around in October 2003. Rather than October 2003, the evidence at trial concerned a turnaround in September 2003.
Brown testified that he worked for PCI in 2002. He stated that he worked at the Shell Refinery for PCI towards the end of 2002, and he was told that the reason he was not working on some “projects up high” was because of his age; PCI wanted to keep him on the ground. When asked who told him this, he responded that he could not remember whether Thomas M. James or another person told him this. Brown further explained: “I was told by someone that I was going to be going to a job on the ground. No one said it was because of my age. I was told that I was going to be going—staying on the ground. And the way it was worded to me, and I don’t remember who said it, it was because they wanted—they didn’t want me, because of my age, being up high.” When questioned furthered, he responded: “I believe I stated it in my deposition that someone said something to the effect that they wanted to keep me, as being an older worker, on the ground. That was the reason I wasn’t up with the other guys.”
Brown testified that, in January 2003, he was dispatched to work for PCI. On January 20, 2003, he contacted Michael Masingale, a general foreman for PCI, and Masingale told him that he would call him back in about one-half hour. Brown believed someone other than Masingale called him back and that person told him that PCI was going to turn him around under section 107.
Masingale testified that he recalled turning Brown around one time in January 2003. Prior to turning Brown around, he called Thomas M. James to find out if he had experienced any problem with Brown. Masingale stated that James “said that he remembered [Brown] didn’t follow directions well from last time” and therefore Masingale decided to turn Brown around. Masingale asserted that he did not turn Brown around because of his age. Further, he noted that he had personally hired Brown on at least two occasions with full knowledge of Brown’s age. Masingale stated that he also turned around an individual who was 38 years old, and hired an individual who was about 46 years old.
James, who had at times worked as a foreman for PCI, testified that Brown had worked for him. He stated that Brown was a good worker. He recalled that Masingale had asked him about Brown and he remembered telling him that he would have him on his crew. When asked whether he ever told Masingale that Brown did not follow directions, James responded: “I can’t—honestly, I don’t remember any of the actual words that were spoken. I remember saying that I would like to have him on my crew, but I don’t remember if it was a five-minute conversation or a twenty minute conversation. You know, I just don’t remember. I don’t remember those kinds of things.” Subsequently, James was read a portion of his deposition testimony where he had stated that he did not tell Masingale that Brown did not follow directions. James explained: “Yes. That’s the best of my recollection. I don’t remember saying that, but I also don’t remember what words were said in that conversation.”
James E. Oxford, an insulator with the union and Brown’s “very good friend,” testified that he was born in 1950 and had held the occupation of insulator for 33 years. He stated that sometime in the 1990’s Masingale said the following to him: “ ‘You know, I wish there was some way that we could eliminate some of the older workers and some of the workers that—that we didn’t need in our trade.’ ” On cross-examination, Oxford agreed that this conversation with Masingale was about making sure that workers, older or younger, were not put in jeopardy by the type of work they were doing.
Oxford also testified regarding another comment that Masingale made in 2001 or 2002. According to Oxford, Masingale remarked about certain workers being too slow and too old to work for him. Oxford then elaborated that Masingale did not necessarily mention age and that he could not remember the exact words, but it was clear to him that Masingale was referring to age.
When questioned about the foregoing comments to Oxford, Masingale testified that the first conversation related to his statements about not hiring a worker who had been injured and was seeking worker’s compensation benefits. The second conversation involved complaints to the union by employees of the company employing Oxford at the time that PCI apprentices were working alone.
With regard to the second time that Brown was turned around, Brown testified that he was dispatched to PCI in September 2003 and he believed that he was to contact Masingale, but he talked to someone else. A different person called him back and said: “We’re not going to hire you. You’ll be turned around under section 107.”
Karen Santos, the branch administrator at PCI, testified that PCI had employed 11 workers on the September 2003 project. Of those 11 workers, six were over the age of 40. One employee was 59 years old and two other workers were 54 and 52 years old. Forty-one percent of PCI’s employees were at least 40 years old in 2003. With regard to the company’s overall statistics, PCI employed 471 workers during 2002 to 2004 at the San Francisco branch. Of these employees, 194 or approximately 41 percent were over the age of 40. In 2003 alone, 118 people were employed at the San Francisco branch of PCI and 48 of them or about 41 percent were older than 40 years.
The ages of the other eight workers were 47, 43, 42, 40, 40, 34, 34, and 29.
After the court heard all of the evidence, Brown moved for judgment under Code of Civil Procedure section 631.8 on his claim of discrimination based on PCI’s turning him around in September 2003. The court denied the motion. Brown requested a statement of decision.
Statement of Decision
On September 1, 2006, the trial court issued its statement of decision. It found that Brown failed to offer sufficient evidence that either of his turnarounds was motivated by his age. Thus, the court found in favor of PCI and ruled that Brown did not establish age discrimination for his turnarounds in January and September 2003.
Brown filed a timely notice of appeal from the judgment.
Attorney Fees
On November 30, 2006, PCI moved for attorney fees under Government Code section 12965, subdivision (b). PCI argued that Brown’s employment discrimination lawsuit was meritless and/or unreasonable. The trial court denied the motion on February 2, 2007, finding that Brown’s case “was not frivolous, unreasonable, without foundation, meritless, nor pursued in bad faith.”
PCI filed a timely notice of appeal from the order denying its request for attorney fees.
On the parties’ motion, we consolidated Brown’s appeal from the judgment and PCI’s appeal from the denial of its request for attorney fees.
DISCUSSION
I. Brown’s Appeal
As clarified in his reply brief, Brown asserts that the only issue presented on appeal is whether the lower court “erred by denying [his] motion for judgment as a matter of law.” He further explains that his motion pursuant to section 631.8 of the Code of Civil Procedure applied only to the second rejection of Brown in September 2003. Accordingly, Brown has forfeited any challenge on appeal to the judgment as it applies to the first time he was turned around in January 2003.
At various points in his opening brief, Brown argues that the evidence did not support his turnaround in January 2003. However, he clarifies in his reply brief that his appeal only concerns a challenge to the turnaround in September 2003.
A. Standard of Review
Under Code of Civil Procedure section 631.8, when a party moves for judgment, “[t]he court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party.” (Code Civ. Proc., § 631.8, subd. (a).) Because the trial court evaluates the evidence as a trier of fact, it may refuse to believe some witnesses while crediting the testimony of others. (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.) We apply the substantial evidence standard of review to a judgment entered under section 631.8, reviewing the record in the light most favorable to the judgment and making all reasonable inferences in favor of the prevailing party. (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.) We will not reverse the trial court’s order granting the motion if its findings are supported by substantial evidence, even if other evidence in the record conflicts. (Roth v. Parker (1997) 57 Cal.App.4th 542, 549-550.)
B. The Test for Age Discrimination
Brown contends that the lower court erred as a matter of law in denying his motion under Code of Civil Procedure section 631.8 because the record contained no disputed facts regarding his rejection in September 2003. He maintains that he established his prima facie case of age discrimination, and PCI provided no evidence to explain its reason for turning him around.
The FEHA prohibits an employer from discriminating on the basis of age. (Gov. Code, § 12940.) In California, courts employ the three-prong test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) to resolve discrimination claims, including age discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under the McDonnell Douglas test, the plaintiff-employee must first set forth sufficient evidence to establish a prima facie case of discrimination. (Guz, supra, at pp. 354-356.) To establish a prima facie case of age discrimination, the plaintiff must show that the plaintiff is a member in the protected class, that the plaintiff was performing competently, that the plaintiff suffered an adverse employment action, and that there is some other circumstance suggesting a discriminatory motive. (Id. at p. 355.)
Government Code section 12940, subdivision (a) provides: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
Once the employee satisfies the prima facie burden, a presumption of discrimination exists, and the burden then shifts to the employer in the second prong to show that its action was motivated by legitimate, nondiscriminatory reasons. (Guz, supra, 24 Cal.4th at pp. 355-356.) A reason is “legitimate” if it is “ facially unrelated to a prohibited bias, and which if true, would preclude a finding of discrimination.” (Id. at p. 358.) In the third prong, if the employee seeks to raise a triable issue, then the employee must produce “substantial responsive evidence” the employer’s showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Speculation does not constitute substantial responsive evidence. (Ibid.) Pretext may be demonstrated by showing “ ‘that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.’ ” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.)
Brown contends that he established the prima facie case concerning the turnaround in September 2003, and that PCI failed to provide any evidence of a legitimate, nondiscriminatory motive. The burden of proof at trial, however, never shifts to the defendant. “ ‘ “If the plaintiff establishes a prima facie case, the defendant bears only a burden of going forward with additional evidence of legitimate nondiscriminatory reasons. The defendant does not take on a burden of persuasion.” ’ ” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).) Further, once the issue of discrimination is submitted to the trier of fact, the burdens fall away and the only remaining question is whether evidence supports the judgment. (Id. at pp. 202-204.)
Brown argues that the question presented by this appeal is not simply whether evidence supported the judgment because he is challenging the denial of his motion pursuant to section 631.8 of the Code of Civil Procedure. He maintains that his section 631.8 motion preserves his challenge based on any failure to meet the burdens of proof set forth in McDonnell Douglas and he cites Caldwell, supra, 41 Cal.App.4th 189 to support this contention.
Brown’s reliance on Caldwell, supra, 41 Cal.App.4th 189 is misplaced. The Caldwell court explains that, if the defendant files a motion for nonsuit, or in a bench trial, a motion pursuant to Code of Civil Procedure section 631.8, after the plaintiff’s case-in-chief, the court should determine whether the plaintiff’s evidence, “if believed by the jury, raises a reasonable inference of discriminatory motive on the part of the employer; in this regard, the trial court would apply the ordinary rules applicable to nonsuits.” (Caldwell, supra, at p. 204.) In this case, Brown, the plaintiff—not the defendant—moved pursuant to section 631.8, and therefore this was not a challenge to the sufficiency of the plaintiff’s evidence.
The Caldwell court noted that the plaintiff may seek a directed verdict on the basis of the legal insufficiency of the employer’s stated reasons for the employment decision. (Caldwell, supra, 41 Cal.App.4th at p. 204.) Brown, the plaintiff, did not move for a directed verdict. Rather, he moved pursuant to Code of Civil Procedure section 631.8, which authorizes the trial court to review and weigh all of the evidence. By the time the case is submitted to the jury or to the court in a bench trial, “the plaintiff has already established his or her prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision, leaving only the issue of the employer’s discriminatory intent for resolution by the trier of fact. Otherwise, the case would have been disposed of as a matter of law for the trial court. That is to say, if the plaintiff cannot make out a prima facie case, the employer wins as a matter of law. If the employer cannot articulate a nondiscriminatory reason for the adverse employment decision, the plaintiff wins as a matter of law. In those instances, no fact finding is required, and the case will never reach a jury.” (Caldwell, supra, at p. 204.)
Even if we conclude that Brown’s motion permits him to assert that the trial court must assess each of the stages in the McDonnell Douglas test, we conclude that Brown cannot establish as a matter of law that PCI cannot articulate a nondiscriminatory reason for the adverse employment decision. If Brown cannot establish the latter as a matter of law, the only remaining issue is whether substantial evidence supported the lower court’s finding of no discrimination.
C. Brown’s Prima Facie Case and PCI’s Reason for Turning Brown Around
For the limited purposes of this appeal, we will presume that Brown established a prima facie case of age discrimination. Thus, under the second prong of the McDonnell Douglas test, PCI only had to provide some evidence of a legitimate nondiscriminatory reason. (Caldwell, supra, 41 Cal.App.4th at p. 201.) As already stressed, PCI does not have the burden of persuasion, but merely needs to present some evidence of a legitimate nondiscriminatory reason. (Ibid.)
In the present case, PCI presented evidence that it had a right to reject Brown for employment without giving a reason under section 107 of the master agreement. Brown responds that the argument that section 107 provided PCI with a legitimate, non-discriminatory reason for rejecting him “makes no sense.” He maintains that turning a person around is similar to downsizing and courts have held that downsizing is not necessarily a sufficient reason for terminating employment. (See Guz, supra, 24 Cal.4th at pp. 358 [“Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release”].) He argues that PCI must provide factual reasons for not hiring, which, if true, would preclude a finding of discrimination. (See ibid.) Since PCI provided no reason for turning him around in September 2003, he contends that it failed as a matter of law to establish a legitimate, non-discriminatory reason.
Brown ignores that the present case, unlike the downsizing case, involves an employment action pursuant to a master agreement. Downsizing is a unilateral action taken by a company. In contrast, in the present case, PCI turned Brown around pursuant to a term in the master agreement, which the employers and union had negotiated. Section 107 benefited both parties and, under this provision, PCI had the right to turn Brown around and Brown had the right to refuse to work for PCI without giving a reason. Section 107 is facially neutral; it provides that an employer need not provide any reason for turning a person around but it expressly prohibits an employer from rejecting an employee based on age. Brown testified that an unidentified individual told him in September 2003: “We’re not going to hire you. You’ll be turned around under section 107.” Since, according to Brown’s own testimony, the proffered reason for rejecting him in September 2003 was based on section 107, PCI provided a legitimate, nondiscriminatory reason for turning Brown around.
Accordingly, the only remaining question is whether substantial evidence supported the lower court’s finding that Brown was not turned around in September 2003 because of age discrimination.
D. Evidence in Support of the Finding of No Discrimination
After hearing all of the evidence, the court found that Brown failed to prove his claims of discrimination based on age. Brown argues that the record supports a finding of discrimination because he was qualified for the job and PCI failed to keep any records as to who was hired instead of him. He asserts that PCI’s failure to maintain records supports and inference of discrimination. (See Evid. Code, § 413; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 13.) Further, he points to evidence that PCI hired younger mechanics in September 2003.
Contrary to Brown’s characterization of the record, we conclude the evidence supported the judgment of no discrimination. PCI provided evidence that the ages of the individuals employed at the refinery by PCI in September 2003 were 59, 54, 52, 47, 43, 42, 40, 40, 34, 34, and 29. Since more than one-half of the persons employed were over the age of 40 and one was older than Brown, this evidence supported a finding that PCI did not reject Brown because of his age.
Additionally, Brown provided no evidence that any person at PCI told him he was being turned around because of his age. Moreover, PCI hired Brown to work on projects six or seven times prior to turning him around twice in 2003. Thus, PCI had hired Brown when he was over the age of 40. Accordingly, we conclude that substantial evidence supported the lower court’s denial of Brown’s motion pursuant to Code of Civil Procedure section 638.1.
As discussed above, Brown has waived any challenge to the judgment as to his being turned around in January 2003. However, even if we were to presume this issue was preserved, the record clearly supported the lower court’s finding of no discrimination. Masingale testified that he recalled turning Brown around one time in January 2003, but his decision was not based on Brown’s age. Indeed, he had hired Brown twice previously with full knowledge of Brown’s age. Masingale testified that he turned Brown around after James told him that Brown did not follow directions well. Although James had no recall of making this statement about Brown, the lower court was in the best position to assess Masingale’s credibility. Masingale also turned around an individual who was 38 years old, and hired an individual who was about 46 years old. Thus, this evidence provided ample support of the lower court’s finding that PCI did not turn Brown around in January 2003 because of his age.
II. PCI’s Appeal
PCI requested attorney fees pursuant to Government Code section 12965, subdivision (b). The trial court denied this request, and PCI appealed from this order.
Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(B).) Government Code section 12965, subdivision (b), authorizes attorney fees under the following circumstances: “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, except where the action is filed by a public agency or a public official, acting in an official capacity.” Although the statute simply refers to the prevailing party, a California Court of Appeal followed the United States Supreme Court’s construction of a parallel provision of federal law in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 and held that “attorney fees and costs” under Government Code section 12965 may be awarded to a prevailing defendant only if the plaintiff’s action was “ ‘ “unreasonable, frivolous, meritless or vexatious.” ’ ” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) Meritless means the claim is groundless or without foundation; it does not simply mean that the plaintiff has not prevailed. (Ibid.) Subjective bad faith, however, is not required. (Ibid.)
A trial court’s award or denial of attorney fees under Government Code section 12965, subdivision (b) is reviewed under the abuse of discretion standard. (See, e.g., Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921 (Bond).) “ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
PCI contends that the trial court abused its discretion in denying it fees. PCI asserts that the lower court incorrectly believed that fees were inappropriate under Government Code section 12965, subdivision (b) because it found that Brown had not pursued his claim in bad faith and it could not resolve the question of age discrimination without assessing the credibility of the witnesses. PCI provides no citation to the record to support its argument that the lower court’s decision was based on the foregoing reasons. Our review of the record establishes that the lower court did not abuse its discretion in denying attorney fees.
In the present case, Brown presented some evidence of age discrimination, which established a reasonable basis for pursuing this lawsuit. Oxford testified that he believed Masingale made an age-related comment about eliminating older workers. Brown testified that he believed PCI would not permit older workers to work on projects above the ground. Such testimony not only supported Brown’s good-faith belief that he was turned around because of his age, but also provided an inference that older workers may have been turned around for projects requiring work in elevated areas. Further, Masingale’s reason for turning Brown around was that James told him that Brown was slow, but James had no recall of making such a statement. The court therefore could have concluded that Masingale’s real reason related to Brown’s age. PCI maintains that Brown’s evidence was weak and his witnesses lacked credibility, but a credibility determination was for the trier of fact. The strength of Brown’s evidence depended upon whether the court believed Masingale’s testimony and/or distrusted the accuracy of the testimony of Brown’s witnesses.
PCI also contends that the testimony of Brown and Oxford did not constitute evidence, because their testimony only established their subjective opinions. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119 [declarations based on conclusory opinions, not facts, inadmissible].) Brown’s opinion, however, was based on facts. It was predicated on the fact that he was told to work on the ground rather than on projects that were high up; a possible inference from this comment was that he was being limited to the ground because of his age. Oxford’s testimony also indicated that he believed Masingale had made an age-related remark. What Masingale actually said was disputed, but Oxford did state that he believed Masingale had made age-related remarks. This testimony may not have been strong or believable, but it was for the trial court to determine what weight to give this evidence. We conclude that this evidence was sufficient to support a colorable claim of age discrimination.
PCI maintains that the facts of the present case are similar to those in Bond, supra, 50 Cal.App.4th 918, where the reviewing court affirmed the lower court’s grant of attorney fees under Government Code section 12965, subdivision (b). In Bond, the plaintiff challenged the award of attorney fees after the jury unanimously found in favor of the defendant in his discrimination claim. (Bond, supra, at p. 920.) The plaintiff asserted that his action had survived a summary judgment motion prior to trial, which established that the pursuit of his lawsuit was reasonable. (Id. at p. 922.) The appellate court held that the record did not establish any error regarding the lower court’s finding that there was “no evidence” to support the claim of discrimination and that the lawsuit was pursued in bad faith. (Id. at pp. 924-925.)
PCI attempts to analogize the facts in the present case to those in Bond, supra, 50 Cal.App.4th 918 . It claims that Brown, similarly to the plaintiff in Bond, presented a case that was meritless and without foundation. The present case, however, is significantly different than the situation in Bond. The lower court in Bond had found that the plaintiff’s action was without merit and pursued in bad faith. (Id. at pp. 924-925.) The reviewing court merely concluded that the record did not establish that the award of fees was an abuse of discretion. (Ibid.) It is unclear that the reviewing court would have concluded that the denial of attorney fees would have been an abuse of discretion had the lower court made that ruling, which is the question posed here. Moreover, in contrast to Bond where the plaintiff presented no evidence of discrimination, we agree with the lower court’s conclusion that Brown presented sufficient evidence to make his action reasonable.
PCI also compares the facts of this case to Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422 (Gonzales). In that case, the plaintiff sued her employer for race and gender discrimination. The lower court granted summary judgment, which the reviewing court affirmed, concluding that the plaintiff “did not even establish a prima facie case” of discrimination. (Id. at p. 426.) The reviewing court affirmed and awarded attorney fees under Government Code section 12965, subdivision (b). (Gonzales, supra, at p. 428.) The appellate court observed: “What we are presented with is nothing more or less than a suit based upon the claim that when an employer differentiates between two employees, and the two happen not to be of the same gender, or racial background, or religion, or nationality, or ancestry, etc., then the act of discriminating between the two is unlawful. [The plaintiff] was, of course, unable to explain whether she thought [the employer’s] illegal motivation was gender discrimination or ancestry discrimination; all she knew was that since she differed from [the hired employee] in those two respects, she claimed them as the basis for [the employer’s] differentiation of her from [the hired employee]. In the absence of those two fortuitous differences, we have no doubt [the plaintiff] would have claimed some other basis of unlawful discrimination—perhaps that [the plaintiff] was divorced whereas [the hired employee] was married or unmarried, or that [the hired employee] was in better medical condition than she. After all, [the plaintiff] has as much evidence of such unlawful discrimination—none—as she has of the presence of gender or ancestry discrimination.” (Id. at p. 427.)
PCI argues that, similarly to the situation in Gonzales, Brown never heard Masingale make age inappropriate comments and had no factual basis for going forward with his lawsuit. PCI maintains that Brown proceeded with his lawsuit simply because he did not get the positions on January 20, 2003, and in September 2003. As already emphasized, we agree that the evidence presented by Brown was weak, but he presented more evidence than that he was simply turned around on two dates. He inferred from remarks made to him by a PCI employee that older workers were not being used on projects above the ground. Additionally, his friend Oxford stated that he had heard Masingale make age-related remarks. Thus, unlike the situation in Gonzales, the lower court in the present case did find that Brown had presented a prima facie case of discrimination sufficient to defeat PCI’s motion for summary judgment and sufficient to make his pursuit of his lawsuit reasonable. We hold that Brown’s evidence was weak but sufficient to present a colorable claim of discrimination.
Accordingly, we conclude that the evidence in the record was sufficient to support the lower court’s finding that attorney fees were not warranted because Brown’s lawsuit had some basis and his action was not unreasonable, frivolous, meritless, or vexatious.
DISPOSITION
The judgment is affirmed. The parties will bear their own costs on appeal.
We concur: Haerle, Acting P.J., Richman, J.