Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and an order of the Superior Court of Los Angeles County No. BC308323, Conrad Richard Aragon, Judge.
Law Offices of Julio G. Fontoura and Julio G. Fontoura for Plaintiff and Appellant.
Collins, Collins, Muir & Stewart, John J. Collins, Tomas A. Guterres and Douglas Fee for Defendants and Appellants.
MALLANO, Acting P. J.
Plaintiff filed this discrimination and harassment action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.; all section references are to the Government Code unless otherwise indicated). After plaintiff dismissed some of the original claims, the trial court granted summary adjudication as to the rest, finding them barred by the statute of limitations. The summary adjudication order effectively ended the case, and judgment was entered for defendants. A subsequent motion by defendants for attorney fees was denied on the ground that plaintiff’s case was not frivolous, unreasonable, or groundless. Both sides appealed.
In seeking to reverse the summary adjudication, plaintiff relies almost exclusively on the allegations of his complaint. We conclude that, because plaintiff has failed to cite the evidence submitted by defendants, as well as most of his own evidence, he has not demonstrated that the trial court erred. In addition, plaintiff has not adequately addressed a dispositive legal issue decided against him in the trial court. As for defendants’ appeal, we conclude that the trial court did not abuse its discretion in denying their motion for attorney fees. Plaintiff’s case, although not ultimately successful, was not baseless.
I
BACKGROUND
The record references in plaintiff’s appellate briefs consist almost entirely of citations to the complaint. As a result, we set forth the following allegations. Gaps in the procedural history are also attributable to a lack of appropriate citations in plaintiff’s briefs.
Plaintiff Glenn Timmons commenced employment with the County of Los Angeles (County) in January 1995 as a public works laborer. Subsequently, he took classes at a community college and volunteered for overtime work.
During seven years of employment with the County, Timmons’s various supervisors mistreated him by, among other things: (1) throwing a knife at him; (2) calling him a “gook”; (3) attempting to run him over with a truck on two occasions; (4) constantly yelling at and berating him in front of the crew; (5) isolating him from other members of the crew; (6) giving him menial tasks and the “worst assignments” to prevent him from being promoted; and (7) making false promises of promotions to dissuade him from filing a grievance.
Timmons’s supervisors “harassed and discriminated” against him from January 1995 to October 1995, June 1996 to June 1999, and January 2001 to December 2001. His supervisors said to him on “key occasions” that “things would get better.”
After the second attempt to hit Timmons with a truck, he sought psychological treatment. He was out of work for about a year and a half on a stress leave. When he returned to work, he was placed under a new supervisor and was told he would start with a “clean slate.” Timmons unsuccessfully applied for a promotion four times.
On March 14, 2002, Timmons signed three administrative “Complaints of Discrimination,” or charges — one each against the County and two supervisors. The Department of Fair Employment and Housing (DFEH) received the charges on March 19, 2002. They were virtually identical, asserting as follows. The most recent act of discrimination against Timmons (which was not described) had occurred on January 18, 2002. Further, “[f]rom March 2001 to the present, [he had] been denied promotional opportunities to Maintenance Worker.” Timmons believed that he had been a victim of discrimination based on his “national origin/ancestry,” namely Filipino, because (1) non-Filipino employees with less seniority were given better job assignments, (2) non-Filipino laborers with less seniority had been promoted to maintenance worker, and (3) he had successfully completed all the necessary exams.
On January 17, 2003, Timmons received right-to-sue notices from the DFEH. On December 24, 2003, he brought this action. He filed a second amended complaint (Complaint) on June 25, 2004, alleging causes of action against the County and one of his supervisors (defendants) for racial discrimination, harassment, national origin discrimination, and retaliation.
Defendants moved for summary adjudication. Before the hearing on the motion, Timmons voluntarily dismissed certain causes of action, leaving only the race and national origin discrimination claims against the County and the harassment claim against the supervisor.
The trial court granted the motion. Because the Complaint alleged an ongoing course of wrongful conduct, the trial court applied the same legal analysis to the discrimination and harassment claims. Under the FEHA, a charge must be filed with the DFEH within one year after “the date upon which the alleged unlawful practice . . . occurred.” (§ 12960, subd. (d).) Filing an administrative charge within the one-year time limit and obtaining a right-to-sue letter are jurisdictional prerequisites to maintaining a civil action. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Blum v. Superior Court (2006) 141 Cal.App.4th 418, 422.) The trial court explained: “Timmons . . . enumerates certain acts occurring during the permissible period, i.e., between March 2001 and March 2002. These are found in Timmons’ interrogatory answers and in his declaration . . . . [¶] These incidents appear to be ‘occasional, isolated, sporadic or trivial.’ Standing alone, they do not demonstrate harassment motivated by racial or national origin animus. They are not actionable.” Timmons also maintained that defendants were liable for actions that took place before the one-year period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812–823 [discussing continuing violation doctrine].) The trial court rejected that argument, too.
By granting the motion for summary adjudication, the trial court disposed of all the claims that remained after the voluntary dismissals. On November 10, 2005, the trial court entered judgment in defendants’ favor. Timmons appealed.
On November 21, 2005, defendants filed a motion for attorney fees, arguing that the lawsuit was frivolous, unreasonable, and without foundation. They sought $119,598 in fees. Timmons filed opposition, disputing defendants’ characterization of his suit. By order dated January 31, 2006, the trial court denied the motion. Defendants appealed.
II
DISCUSSION
Although we conclude that Timmons has not shown that the granting of summary adjudication was error, we also conclude that the trial court did not abuse its discretion in denying defendants’ motion for attorney fees.
A. Summary Adjudication
The general rules governing summary judgment also apply to summary adjudication. (See Lomes v. Hartford Financial Services Group, Inc. (2001) 88 Cal.App.4th 127, 131.)
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. . . . We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports. . . . In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476–477, citations omitted, italics added.) Put another way, once the defendant makes a prima facie showing of the nonexistence of a triable issue of material fact, the plaintiff has a burden of production, requiring the presentation of evidence to make a prima facie showing that such an issue exists. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851.)
“On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. . . . ‘The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process.’ . . . ‘[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record . . . .” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230, citations omitted.)
Timmons does not contend that, in moving for summary adjudication, defendants failed to satisfy their initial burden of showing the nonexistence of a triable issue of material fact. And, on appeal, Timmons has not cited any evidence that would give rise to a disputed issue. Indeed, he has not cited any evidence at all, with the exception of the DFEH charges. But the charges alone are not sufficient to warrant a trial. Timmons’s arguments on appeal are improperly based on citations to the Complaint, statements made by his attorney at the hearing on the motion, and the trial court’s order. Under California Rules of Court, rule 8.204(a)(1)(C), “[e]ach brief must: [¶] . . . [¶] [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” In discussing the proper citation of the record on appeal from a summary judgment, we have previously explained that “‘[a]s to statements of fact, rule [8.204(a)(1)(C)] is intended to direct the appellate court to evidence in the record. . . . Here, [a] part[y] repeatedly cite[d] [its] own “separate statement” (see Code Civ. Proc., § 437c, subd. (b)) as the sole support for numerous “facts.” However, a separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence. . . .
“Similarly, an assertion of fact on appeal carries no weight where the cited source is the same unsupported assertion made in the trial court, be it in the memorandum of points and authorities or stated by counsel at the hearing on the motion. An unsupported assertion below does not become a ‘fact’ on appeal simply by repetition. And the trial court’s explanation of its decision — whether by order, statement of decision, judgment, oral pronouncement, or other form — is not evidence. Factual assertions on appeal cannot rest solely on citations to the decision of the trial court. It is the evidence supporting or opposing the trial court’s decision that is important.
“‘“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record . . . .”’ . . . [A]n appellate court may disregard any factual contention not supported by a proper citation to the record . . . .” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378–1379, some italics added and omitted.)
Because Timmons did not comply with these basic rules of appellate practice, he failed to demonstrate that the trial court erred in granting summary judgment. The trial court cited evidence in granting the motion. On appeal, Timmons relies on his own pleading. Accordingly, he has not shown that a triable issue of material fact exists.
In addition, Timmons has not addressed a dispositive legal issue on appeal. As stated, the trial court concluded that defendants did not engage in any unlawful conduct during the statutory one-year period before Timmons filed his charges with the DFEH. (See § 12960, subd. (d).) Actions that are occasional, isolated, sporadic, or trivial do not constitute an unlawful course of conduct under the FEHA. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131; Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.) Timmons limited his argument on appeal to the question of whether the continuing violation doctrine applied. Under that doctrine, an employer may be liable for actions that occur before the one-year period if the acts are “(1) sufficiently similar in kind . . .; (2) have occurred with reasonable frequency; [and] (3) . . . have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 823; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059.)
Nevertheless, the continuing violation doctrine applies only if the employer’s unlawful actions continue into the one-year period. (See Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at pp. 812, 824; Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1056; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 64.) And Timmons does not argue that defendants committed any unlawful conduct during the one-year period. Simply put, even if Timmons were correct that the continuing violation doctrine otherwise applied, his appeal would still fail given that he did not challenge the trial court’s determination (or defendants’ supporting argument and evidence) that nothing unlawful took place during the requisite one-year period. Thus, the existence and nature of any prior wrongful conduct is of no consequence.
B. Attorney Fees
By statute, the “prevailing party” in an FEHA action may be awarded reasonable attorney fees. (§ 12965, subd. (b).) Although a prevailing plaintiff in an FEHA action is ordinarily awarded attorney fees, a prevailing defendant may not recover fees unless the case is frivolous, unreasonable, groundless, without foundation, or vexatious. (See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386–1387; Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 864–866.) We review the trial court’s denial of attorney fees for an abuse of discretion. (See Cummings, at p. 1387.)
The trial court explained in detail its ruling on defendants’ motion for attorney fees, stating in part: “Ultimately, the fatal flaw in Defendants’ motion is that [they] completely miss[] the import of the court’s order granting summary judgment. The grounds relied upon by the court were technical in nature, relating to exhaustion of remedies, the continuing violation doctrine and statute of limitations . . . . These issues admittedly bear on the substantive merit of the claims, but . . . the court is convinced that Plaintiff’s argument for application of the continuing violation doctrine was reasonable and prudent. [¶] But for the highly technical exhaustion of administrative remedies and time bar issues, for which no ‘clear cut’ answer could be readily found, there was credible evidence that Timmons had been dealt with unfairly by Defendants.”
Defendants emphasize that, in response to their motion for summary adjudication, Timmons voluntarily dismissed some causes of action. They assert that his “Statement of Damages” sought an excessive amount and that, during mediation, his demands were too high. They also claim he never had any competent evidence to support his claims. But, in light of the basis for granting summary adjudication and our independent review of the record — including Timmons’s declaration and his interrogatory responses — we cannot say that this lawsuit was frivolous, unreasonable, groundless, without foundation, or vexatious. The trial court therefore did not abuse its discretion in denying defendants’ motion for attorney fees.
III
DISPOSITION
The judgment in favor of defendants and the order denying defendants’ motion for attorney fees are affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.