Opinion
NOT TO BE PUBLISHED
Appeals from an order and a judgment of the Superior Court of Los Angeles County, No. BC307990, Mary Thornton House, Judge.
Law Offices of Helena S. Wise and Helena S. Wise for Plaintiff and Appellant.
Collins, Collins, Muir & Stewart, John J. Collins, Tomas A. Guterres, Douglas Fee, and Holly Boyer Ruggeri for Defendant and Appellant.
CHAVEZ, J.
Plaintiff and appellant Girard Mollayan (Mollayan) appeals from the summary judgment entered in favor of defendant and appellant County of Los Angeles (County) in Mollayan’s action for age discrimination and retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)). The County appeals the trial court’s order denying its motion for attorney fees under section 12965, subdivision (b).
All further statutory references are to the Government Code, unless stated otherwise.
We affirm the judgment and the order denying the motion for attorney fees.
BACKGROUND
Mollayan commenced his employment with the County Department of Public Works in 1969. From the time of his initial employment until 1974, Mollayan was gradually promoted, ultimately achieving the rank of Building Engineering Inspector. Mollayan remained in that position for the next 30 years, despite his efforts to be promoted, until he retired in 2004 at the age of 60. He contends that his inability to be promoted was the result of discriminatory animus and retaliation by the County. The County maintains that Mollayan’s lack of qualifications, relative to other promotional candidates, was the reason his applications for promotion were unsuccessful.
1. The County’s Performance Evaluation and Promotion Process
Some background on the County’s employee evaluation and promotion process assists in understanding the issues presented in this case. Building Engineering Inspectors employed by the County receive annual performance evaluations. The performance evaluation process begins with an employee’s direct supervisor, who prepares a preliminary draft evaluation for each employee under his or her supervision. The draft evaluation is then reviewed by the Regional Engineer two levels above the evaluated employee. The Regional Engineer discusses the draft performance evaluation with other Regional Engineers to normalize the evaluations. At times, a draft performance evaluation may be revised by the Regional Engineers. After review by the Regional Engineers, performance evaluations are given to the employee’s Division Head for review and approval. Throughout Mollayan’s employment with the County, he consistently received performance evaluation ratings of “competent” and never received a rating above “competent.”
Job promotion opportunities within the County Department of Public Works are posted on job bulletins, and qualified candidates who meet the stated requirements may apply for the position. If the bulletin states that a candidate must hold a certain job classification title, applicants who do not hold the requisite title do not qualify and will be rejected. If the bulletin allows for experience “at the level of” a specific job classification, the candidate must provide a “verification of experience” (VOE) letter prepared by his or her Division Head validating the candidate’s claimed experience. The VOE letter must be attached to the candidate’s application at the time the application is filed.
The process for obtaining job promotions within the County is governed by rules promulgated by the Civil Service Commission. The Civil Service rules require all promotional examinations to include an appraisal of promotability (AP) evaluation. The AP evaluation is the rater’s opinion of the candidate’s ability to perform competently in the position sought. The initial rater (usually the candidate’s direct supervisor) reviews the candidate’s entire personnel file, including previous performance evaluations and attendance records. This initial review results in a numerical score which is then reviewed and approved by the candidate’s Division Head, with a final review and approval by the candidate’s Deputy Director.
Besides the AP evaluation, a promotional examination may include other elements, such as a rating of record, an oral interview, and a written examination. If more than one of these elements is involved, a candidate’s final score is based on a weighted percentage average of each element.
Once the scores have been determined for all candidates, the applicants are placed on a certification list in “bands” numbered 1 to 5, based on their final score. Band 1 contains the highest scores and band 5 the lowest. The Civil Service rules provide that candidates must be selected based upon their banding, beginning with those in band 1. Selection can proceed from the next lower band when there are fewer than five candidates remaining in the preceding band. A certification list generally remains viable for one year, and all positions at the particular level are filled from candidates appearing on the list. The AP procedures do not prevent an employee with an overall personnel evaluation rating of “competent” from being promoted, and do not require that an employee with a personal evaluation rating of “very good” be promoted.
2. Conflicts Between Mollayan and His Supervisors
The record discloses a long and rancorous relationship between Mollayan and his supervisors. From 1974 to 1985, Mollayan worked in the County’s Palmdale and Lancaster offices. There, he experienced conflicts with his supervisors, Frank Lott and Dale Gregory, which resulted in disciplinary actions against him in the mid-1980’s. Mollayan contends the disciplinary actions were in retaliation for his reporting conflicts of interest by his colleagues. Mollayan claims his supervisors further retaliated against him by imposing costly building conditions on a “dream house” he was constructing at the time, while waiving similar requirements at other projects. In November 1985, he requested and was granted a transfer to the County’s Santa Clarita office.
Mollayan contends that he received positive work evaluations at the Santa Clarita office until he reported conflict of interest violations by his supervisors, Charles Moten and Richard Brundage, in the late 1980’s. Mollayan further contends that his supervisors accorded preferential treatment, in the form of a lighter work load and more desirable assignments, to a newly hired employee under the age of 40, Elizabeth McCann, and that he voiced objections to the disparate treatment. On September 27, 1999, Mollayan received a confirmation of counseling memorandum for leaving work without authorization and for insubordinate and inappropriate behavior toward his supervisors. Mollayan denied being insurbordinate, and signed the counseling memorandum “under duress.”
On November 14, 2000, the County notified Mollayan that he was being suspended for five days for inappropriate and disruptive behavior in the workplace. The notice of suspension stated that on August 28, 2000, a coworker reported to a supervisor that Mollayan had a blowgun on his desk, in contravention of the County’s zero tolerance policy on workplace violence, threats, intimidation, and harassment. The notice of suspension further stated that Mollayan had been counseled about previous instances of inappropriate or disruptive workplace behavior, including confrontational behavior and use of foul language toward supervisors Richard Brundage and Charles Moten, and openly reading the newspaper during a meeting conducted by Richard Bagby. On November 21, 2000, Mollayan filed a grievance concerning his suspension, noting that the blowgun was a factory wrapped paint gun he had purchased as a birthday gift for his stepson. Following a hearing on the matter, the suspension was rescinded and a written reprimand was issued in its stead on February 22, 2001. Mollayan then filed a grievance challenging the issuance of the written reprimand.
In May 2001, Mollayan met with his supervisors and was given a verbal warning concerning his inappropriate behavior and attitude in the workplace. Mollayan denied the allegations and voiced concerns about age discrimination and purported violations of conflict of interest standards by his superiors.
On June 1, 2001, Mollayan filed a grievance alleging that his then supervisors, Richard Bagby, Charles Moten, and Richard Brundage had violated County conflict of interest standards, accorded favorable treatment to a Black student worker, and retaliated against him because of the November 2000 grievance he had filed challenging his five-day suspension. The matter was forwarded to the County’s Auditor-Controller, who subsequently issued a report concluding that most of the alleged conflict of interest violations were not substantiated.
In the summer of 2001, Mollayan was offered a transfer from the Santa Clarita office to the County’s office in Lancaster. He accepted the transfer and reported to the Lancaster office on July 23, 2001.
3. 2001 Promotion Application
On May 30, 2001, Mollayan applied for the position of Senior Building Engineering Inspector (SBEI). In December 2001, the County notified him that he had received an AP score of 80 in connection with his application and an overall score of 75.39. Mollayan’s AP score placed him in band 5 of the certification list, the lowest category for promotability. Other applicants for the 2001 SBEI position who were over the age of 40 were placed in bands higher than band 5. Applicants over the age of 40 on the 2001 SBEI certification list were subsequently promoted.
Mollayan appealed his AP score, claiming that it should have been 90 instead of 80 and that the lower score was the product of discriminatory animus and retaliation for his previous grievances and complaints. On August 12, 2002, the County notified Mollayan that his appeal had been denied. Mollayan further appealed his AP score to the County Civil Service Commission. On November 15, 2002, the Civil Service Commission summarily denied his request for a hearing on the issue.
4. 2002 and 2003 Performance Evaluations
In July of 2002 and 2003, Mollayan received two separate annual performance evaluation ratings from his then supervisor, William Nuckolls. Mollayan received an overall rating of “competent” in both evaluations.
5. 2003 Promotion Application
In December 2003, the County posted a job opportunity for a District Building and Safety Engineering Associate. The position required a minimum of two years experience performing uniform building code inspections at the SBEI level. Mollayan applied for the position, seeking a promotion two levels above his then current position. His application was denied because he failed to submit a required VOE letter. Mollayan had requested a VOE letter from the Superintendent of Building, Raj Patel, who denied the request.
On January 15, 2004, Mollayan filed a grievance, alleging that the County wrongfully denied him a VOE letter. The grievance was denied.
PROCEDURAL HISTORY
On December 11, 2002, Mollayan filed a Department of Fair Employment and Housing (DFEH) complaint alleging that in “January 2002 and continuing” he had been denied promotion because of his age and for “protesting.” DFEH issued a notice of case closure and right-to-sue letter on December 20, 2002.
On November 26, 2003, Mollayan filed a second DFEH complaint alleging that “within the last six months” his performance evaluation rating had been changed by his then Division Head, John Kelly, because of Mollayan’s “protesting.” DFEH issued a notice of right-to-sue on December 15, 2003.
On December 18, 2003, Mollayan filed this action for age discrimination and retaliation under FEHA. Following a series of demurrers and motions to strike by the County, the trial court ruled that any alleged acts of discrimination and retaliation occurring before December 20, 2001, were time-barred, thereby limiting Mollayan’s right to seek redress to acts occurring after that date.
Mollayan initially named John Kelly as a defendant, but subsequently abandoned his claims against Kelly.
The County moved for summary judgment, or in the alternative, summary adjudication of issues, on the ground that Mollayan had no evidence to support his causes of action for discrimination or retaliation. The trial court granted summary judgment in the County’s favor, and Mollayan filed this appeal.
The County then moved for its attorney fees as the prevailing party under section 12965, subdivision (b). The trial court denied the motion for attorney fees, and the County appealed the order denying that motion. The two appeals were subsequently consolidated.
DISCUSSION
I. Standard of Review
Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively negate any such element . . . .” (Id. at p. 853.)
On appeal from a summary judgment, an appellate court makes “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Iverson v. Muroc Unified Sch. Dist. (1995) 32 Cal.App.4th 218, 222.) In doing so, we “[consider] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
II. Discrimination
Mollayan’s claim for discrimination on the basis of age is governed by FEHA. That statute provides in relevant part: “It shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the . . . age . . . 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.” (§ 12940, subd. (a).)
A prima facie case of age discrimination requires evidence of satisfactory job performance, an adverse employment action, and more favorable treatment of similarly-situated individuals outside the protected class. (Hersant v. Dep’t of Social Services (1997) 57 Cal.App.4th 997, 1003.) An employer seeking summary judgment in a discrimination case meets its burden by showing that one or more of these prima facie elements is lacking, or that legitimate, nondiscriminatory reasons existed for the adverse employment action. “‘[L]egitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (Guz, supra, 24 Cal.4th at p. 358.) Following such showing by the employer, the burden shifts to the employee to demonstrate that the reasons for termination are a pretext and that the employer acted with a discriminatory motive. (Id. at pp. 354-356.) To do so, the employee must present “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual. [Citation.]” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.)
Mollayan failed to establish that he was discriminated against because of his age, or that the County treated younger, similarly-situated employees more favorably during the applicable statutory period. Mollayan presented no evidence that age was a factor in his 2002 and 2003 performance evaluation ratings, which were the same as the performance evaluation ratings he had received throughout his career, or in his unsuccessful applications for promotions in 2001 and 2004. He also presented no evidence of disparate impact or disparate treatment on the basis of age. Mollayan’s claim that the County promoted a disproportionate number of employees under the age of 40 from the 2001 SBEI certification list is unsupported by the record. The evidence shows that in January 2002, the District promoted six persons from the 2001 SBEI certification list. Of these, four were over the age of 40. In September 2003, the District promoted an additional six persons from the 2001 SBEI certification list, four of them over the age of 40.
Mollayan contends that under the continuing violations doctrine, he is entitled to seek redress for alleged acts of discrimination that occurred before December 2001. As we discuss elsewhere, the continuing violations doctrine does not apply because Mollayan failed to establish any actionable age discrimination by the County during the applicable statutory period.
Mollayan has failed to prove the elements necessary to establish a prima facie case of age discrimination.
III. Retaliation
Section 12940, subdivision (h) makes it unlawful for any employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Subdivision (a) of the statute specifies the unlawful employment practices that are prohibited, including sexual harassment, and discrimination because of race, sex, religion, or national origin.
To establish a prima facie case of retaliation in violation of FEHA, a plaintiff must show that he or she engaged in a protected activity, that the employer subjected the employee to an adverse employment action, and that a causal link exists between the protected activity and the adverse action. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 614.) A causal link may be established with evidence demonstrating that the employer was aware of the protected activity and the adverse action followed within a relatively short time. (Morgan v. Regents of Univ. of Cal. (2000) 88 Cal.App.4th 52 (Morgan).)
Once a prima facie case has been established, the burden shifts to the employer to offer a legitimate nonretaliatory explanation for its conduct. If the employer offers a legitimate, nonretaliatory reason, the burden then shifts back to the plaintiff to show that the employer’s proffered explanation is merely a pretext for retaliation. (Flait v. N. Am. Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Mollayan contends the County retaliated against him because he complained about age discrimination. The alleged retaliatory acts include lowering his 2002 and 2003 job performance evaluations, denying him a promotion to the position of SBEI in 2001, and denying him a VOE letter necessary to apply for the position of District Building and Safety Engineering Associate in 2004.
There is no evidence that the County lowered Mollayan’s job performance evaluations in retaliation for his complaints. With regard to Mollayan’s applications for promotions, the County presented a legitimate, nonretaliatory, nondiscriminatory reason for denial -- Mollayan’s lack of qualification for these positions relative to other candidates. The burden then shifted to Mollayan to present substantial evidence that the County’s reasons were pretextual. He did not meet this burden.
A. Performance Evaluations
Mollayan contends that in 2002 and 2003, John Kelly, then a Division Head within the County Department of Public Works, instructed Mollayan’s then supervisor, William Nuckolls, to lower Mollayan’s performance evaluation ratings to an overall rating of “competent” rather than “very good” in retaliation for his complaints about alleged discrimination and violations of the County’s conflict of interest rules. There is no evidence, apart from unsupported assertions in Mollayan’s own declaration, that Nuckolls recommended that Mollayan receive a performance evaluation rating of “very good” in 2002 and 2003, or that he was instructed to lower Mollayan’s performance rating from “very good” to “competent.” “A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken. [Citation.]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.) “‘Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations. [Citations.] [¶] ‘The affidavits must cite evidentiary facts, not legal conclusions or “ultimate” facts. [Citation.] [¶] ‘Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits. [Citation.]’” (Id. at p. 1120.)
Throughout Mollayan’s employment with the County -- both before and after his complaints of alleged discrimination -- his performance evaluation ratings remained unchanged. He never received an overall performance rating above “competent.” There is no evidence that Mollayan’s performance evaluation ratings were adverse employment actions motivated by discriminatory animus or retaliation. Moreover, negative performance reviews alone will not support a retaliation claim unless the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.) There is no evidence Mollayan’s 2002 or 2003 performance evaluation ratings were used against him to change the terms and conditions of his employment. It is undisputed that nothing in procedures governing the County’s promotion process precludes an employee with an overall performance evaluation rating of “competent” from being promoted and nothing mandating that an employee with a performance evaluation rating of “very good” be promoted.
B. Denial of Promotions
The County presented a legitimate, nondiscriminatory, nonretaliatory reason for denying Mollayan the promotion he sought to the position of SBEI -- he was not the most qualified candidate for the position. Mollayan received an AP score of 80 for the SBEI position he applied for in 2001 and an overall score of 75.39, placing him in band 5, the lowest band of the certification list promulgated for the position on December 11, 2001. The civil service rules governing the County’s promotional procedures require the County to first consider candidates from bands 1 through 4 of the certification list before considering candidates from band 5. Consistent with that procedure, candidates in higher bands were promoted ahead of Mollayan.
Although Mollayan maintains his AP score should have been higher and that the lower score was the result of discrimination and retaliation by the County, he presents no admissible evidence to support this claim. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1120.) The County’s promotional process and AP scoring system are not controlled by any one individual. Mollayan’s assertions that several County employees conspired against him to lower his scores in retaliation for his complaints of age discrimination and violations of conflict of interest rules are unsupported. (Ibid.)
C. Denial of VOE Letter
The County offered a legitimate nondiscriminatory, nonretaliatory reason for denying Mollayan’s request for the VOE letter necessary to apply for the position of SBEI -- his lack of sufficient experience at that level. Mollayan failed to sustain his burden of establishing that this reason was a mere pretext.
IV. Statute of Limitations and Continuing Violations Doctrine
Subject to exceptions not applicable here, FEHA requires complainants to file an administrative complaint within one year of the date upon which the alleged unlawful practice occurred. (§ 12960.) Filing an administrative complaint is a prerequisite to suit under the statute. (Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1120.) Mollayan filed his first administrative complaint on December 11, 2002, and received a right-to-sue letter on December 20, 2002. The trial court ruled that he could sue only for discriminatory or retaliatory acts that occurred on or after December 20, 2001. (§ 12960.)
Mollayan argues that the continuing violations doctrine permits him to sue for discriminatory and retaliatory conduct that occurred before December 2001. The continuing violations doctrine permits suit under FEHA for conduct that occurred in part outside the limitations period. (Richards v. CH2M Hill (2001) 26 Cal.4th 798, 802 (Richards).) The doctrine may only be invoked, however, if some actionable conduct occurred within the limitations period. In order for the continuing violations doctrine to apply, “‘[t]he plaintiff must demonstrate that at least one act occurred within the filing period and that [the conduct complained of] is “more than the occurrence of isolated or sporadic acts of intentional discrimination.” [Citation.] . . . .’ [Citation.]” (Morgan, supra, 88 Cal.App.4th at p. 64.) Conduct that would otherwise be time-barred must also be related to that occurring within the statutory filing period by being sufficiently similar in kind, occurring with sufficient frequency, and not having acquired a degree of permanence so that the employee is on notice that further informal efforts to obtain accommodation or end the offending conduct would be futile. (Richards, supra, 26 Cal.4th at p. 802.)
The continuing violations doctrine does not apply to Mollayan’s cause of action for age discrimination. As discussed, he failed to establish any actionable conduct by the County within the limitations period. With regard to his retaliation cause of action, Mollayan failed to demonstrate that conduct that would otherwise be time-barred is sufficiently similar to that complained of during the applicable limitations period. The alleged acts of retaliation occurring during the limitations period are Mollayan’s unsuccessful efforts to be promoted. The alleged retaliatory acts occurring before December 2001 include the imposition of building code conditions on the construction of Mollayan’s “dream house” in 1979 and 1980, disciplinary actions taken against him in the late 1980’s by supervisors in the County’s Lancaster and Palmdale offices, and disciplinary actions taken against him in the late 1990’s to mid-2001 by supervisors in the Santa Clarita office. The alleged retaliatory acts occurring before December 2001 are not only dissimilar in type from Mollayan’s unsuccessful applications for promotion, but were taken by decision makers different than those involved in his 2001 and 2004 applications for promotion. There is no evidence that any of these decisions were connected to each other in any way. The continuing violations doctrine accordingly does not apply.
The alleged retaliatory acts occurring in the 1980’s are also not actionable under FEHA. These actions were purportedly taken against Mollayan in retaliation for objecting to violations of the County’s conflict of interest rules by his colleagues. Violation of County conflict of interest rules is not a prohibited practice under FEHA, and Mollayan’s opposition to such violations cannot serve as the basis for a FEHA retaliation claim. (§ 12940, subds. (a), (h).) In addition, the imposition of building code conditions on the construction of Mollayan’s own “dream house” does not constitute an adverse employment action. (See Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641-642.)
V. Attorney Fees
The trial court denied the County’s motion for attorney fees under section 12965, subdivision (b) based on its finding that Mollayan “did not purse this action in bad faith.” The County contends the order denying its motion for attorney fees must be reversed because the trial court applied the wrong legal standard and failed to consider whether Mollayan’s claim was frivolous, unreasonable, groundless, or vexatious.
Section 12965, subdivision (b) provides in part: “In actions brought under this section, 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.” A trial court’s decision regarding an award of attorney fees under section 12965 is reviewed for abuse of discretion. (Rosenman v. Christensen (2001) 91 Cal.App.4th 859, 865 (Rosenman).)
The standard for awarding attorney fees to a prevailing defendant under section 12965, subdivision (b) differs from that applied to a prevailing plaintiff. (Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766.) “‘[A] prevailing plaintiff . . . “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.”’ [Citation.] By contrast, a defendant who prevails in a discrimination claim is not necessarily entitled to an award of fees. [Citations.]” (Ibid.) A prevailing defendant is entitled to attorney fees under section 12965 only “‘upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’” (Cummings v. Benco Bldg. Servs. (1992) 11 Cal.App.4th 1383, 1387, quoting Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421.)
Before awarding attorney fees to a prevailing defendant in a FEHA action, a trial court must make express findings that a plaintiff’s action was unreasonable, frivolous, meritless, or vexatious. (Rosenman, supra, 91 Cal.App.4th at p. 868.) The failure to make such express findings is reversible error. (Ibid.) Express findings are required in order to ensure that defendants in FEHA actions are awarded attorney fees only in “extreme cases”and to avoid the “chilling” effect a potential fee award could have on persons seeking redress for valid FEHA claims. “Such a result would be directly contrary to the public policies FEHA was designed to vindicate.” (Ibid.) The same public policy concerns are not implicated when a trial court denies a prevailing defendant’s motion for attorney fees, and express findings are not required in such cases. What applies here is the general rule providing “‘[w]here the court was not asked to and did not make findings on the substantial factual issues involved in determining whether the prevailing party was entitled to attorney fees, we must infer all findings necessary to support the judgment [Citations.]’” (Ibid., fn. omitted.)
The record shows that the trial court considered whether Mollayan’s action was unreasonable, frivolous, meritless, or vexatious, although it did not make express findings in this regard. The absence of such express findings is not ground for reversal of the trial court’s order. The trial court did not abuse its discretion by denying the County’s motion for attorney fees.
The trial court’s minute order states: “Section 12965(b) provides that the court may award attorney fees to a defendant if a plaintiff’s FEHA action was unreasonable, frivolous, meritless or vexatious. [Citation.]”
DISPOSITION
The judgment is affirmed, as is the order denying the motion for attorney fees. Each side to bear their own costs.
We concur: BOREN, P.J., DOI TODD, J.