Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and order of the Superior Court of San Diego County No. 37-2007-00074942 CU-OE-CTL, Judith F. Hayes, Judge.
AARON, J.
I.
INTRODUCTION
In Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), the Supreme Court held that a plaintiff who causes a defendant to change its behavior in a private attorney general action pursuant to Code of Civil Procedure section 1021.5 may be eligible to recover attorney fees, even absent a final judgment in favor of the plaintiff. The Graham court held that in order for a trial court to award fees pursuant to the so-called "catalyst theory" of attorney fee recovery, the record must contain substantial evidence from which the trial court may determine that the lawsuit had merit, which the Graham court defined as "not 'frivolous, unreasonable or groundless' [citation]...." (Graham, supra, at p. 575.) In a companion case, Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 610 (Tipton-Whittingham), the Supreme Court held that this same requirement applies to cases in which a plaintiff seeks to recover attorney fees pursuant to the catalyst theory, under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12965, subd. (b)).
Code of Civil Procedure section 1021.5 contains the Legislature's codification of the private attorney general doctrine.
Unless otherwise specified, all subsequent statutory references are to the Government Code.
After suffering two injuries at work, Bruce Borad filed this action against the Grossmont Union High School District (the District). In his complaint, Borad alleged that the District violated FEHA by failing to reasonably accommodate him and failing to engage in an interactive process to determine what accommodations Borad required. On the day that the jury trial was scheduled to commence, the trial court granted the District's motion in limine to preclude Borad from presenting any evidence as to the District's liability on Borad's claims, for reasons that we explain in part II., post. After the trial court made this ruling, the court indicated it would take a recess, and that after the recess, counsel should be prepared to inform the court as to how they wished to proceed. When counsel returned from the recess, Borad's counsel stated that he would prepare a judgment consistent with the court's ruling.
Borad subsequently filed a motion requesting that the trial court enter a judgment in his favor and find him to be the prevailing party in the litigation. In a brief in support of the motion, Borad argued that he was entitled to an award of attorney fees pursuant to section 12965, subdivision (b), because he had received the relief that he had sought in the lawsuit when, just one month prior to the scheduled start of the jury trial, the District restored 26 days of sick leave that it had previously docked.
The District opposed Borad's motion. The District argued that it was entitled to a judgment of dismissal because Borad had abandoned his case during trial. The District also maintained that Borad was not entitled to recover attorney fees under section 12965, subdivision (b) pursuant to the catalyst theory for several reasons, including that Borad had not presented any evidence that his lawsuit had merit. The trial court entered judgment in favor of Borad. In its judgment, the court found that Borad was the prevailing party and that he was entitled to attorney fees pursuant to section 12965, subdivision (b). The court subsequently awarded Borad $22,532 in attorney fees.
On appeal from the judgment, the District claims that Borad abandoned his case at trial, and that the trial court thus erred in refusing to enter a judgment of dismissal in its favor and instead, entering judgment in Borad's favor. In addition, the District claims that the court erred in finding Borad to be the prevailing party pursuant to the catalyst theory, because Borad did not present any evidence that his lawsuit had merit. We agree with both of the District's contentions. We therefore reverse the judgment and the attorney fee order, and remand the matter to the trial court with directions to enter a judgment of dismissal in favor of the District.
The District filed a separate appeal (D057142) from the trial court's postjudgment attorney fee order. Our reversal of the judgment necessarily compels the reversal of the trial court's postjudgment attorney fee order based on the judgment. (See Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1053.) The District's separate appeal from the trial court's postjudgment attorney fee order (D057142) is thus moot.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007, Borad filed a complaint against the District in which he alleged three causes of action under FEHA: disability discrimination (§§ 12940, 12941, 12941.1); failure to reasonably accommodate (§ 12940, subd. (m)); and failure to engage in the interactive process (§ 12940, subd. (n)). In his complaint, Borad alleged that in August 2005, he injured his knee at work, and in January 2006, he injured his back at work. Borad claimed that he was "put out of work by the doctor on January 18, 2006, " and that "[o]n or about February 28, 2006, [he] sought to return to work." Borad claimed that there were only "minor restrictions placed upon his activities" at the time that he sought to return to work. Borad further alleged that the District's representatives would not allow him to resume work unless his doctor removed all restrictions. Borad claimed that the District refused to permit him to work throughout the remainder of the 2005-2006 school year, and that it was not until August 2006 that the District conferred with him concerning potential reasonable accommodations that would permit him to return to work. Borad alleged that at the time he returned to work for the 2006-2007 school year, he was subject to the same medical conditions that had existed in February 2006.
Borad claimed that the District's failure to timely discuss potential reasonable accommodations and to permit him to return to work constituted discrimination under FEHA. Borad prayed for various forms of relief, including "lost past and future wages and benefits, " and attorney fees pursuant to section 12965, subdivision (b).
In February 2009, the parties filed various motions in limine. In one of its motions, the District sought to preclude Borad from presenting any evidence as to liability at trial, on the ground that Borad had no evidence that he had suffered damages as a result of the District's conduct. Specifically, the District argued:
"The major problem with Borad's case is that he has not suffered any economic or non-economic damages. So even if Borad could prove liability, his lawsuit should be dismissed because he simply has not been harmed.
"Specifically, Mr. Borad's statement of damages, dated January 29, 2009, contains no economic damages whatsoever. Rather, Mr. Borad is solely claiming emotional distress damages (of $60,000).... But this claim of emotional harm is contrary to Mr. Borad's responses to interrogatories, which he verified under penalty of perjury."
The District attached two exhibits to its motion: Borad's January 29, 2009 statement of damages, and an excerpt of Borad's responses to the District's form interrogatories. One of the interrogatories asked, "Do you attribute any physical, mental or emotional injuries to the incident?" Borad responded, "No" to this interrogatory.
In his opposition to the District's motion in limine, Borad argued that during the litigation, he had requested that the District restore various sick leave credits that the District had previously docked. Borad claimed that the sick leave credits were worth approximately $14,527. Borad noted the District had not restored the sick leave credits until January 28, 2009, and Borad argued that the District had restored the sick leave credits on the eve of trial for the "sole purpose of... assert[ing] to the Court that Plaintiff has no economic damages." With respect to emotional distress damages, Borad argued that it was up to the jury to determine whether he had been harmed emotionally. Borad maintained that the court should not grant "summary judgment on the issue of emotional distress by way of this motion in limine."
On March 2, 2009, the day on which the jury trial was to begin, the trial court held a hearing on the parties' motions in limine. After hearing argument from both counsel concerning the District's motion seeking to preclude Borad from presenting any evidence as to liability, the trial court encouraged the parties to attempt to reach a settlement. To that end, the court adjourned the hearing on several occasions to permit the parties to engage in settlement discussions. At the conclusion of these discussions, Borad's counsel reported to the court that Borad and the District were unable to reach a settlement.
After clarifying that the parties were ready to proceed on the District's motion in limine, the court granted the District's motion. The court reasoned in part, "The problem I find... is in the discovery aspect of this where it was only after the law and motion and discovery cutoff had passed that the plaintiff[] revealed that [he was] going forward with a claim for emotional distress. [¶] To go forward to trial, as I understand it, would prejudice the defense in their opportunity to present evidence in that they had had no opportunity to have the plaintiff interviewed and examined by an expert." After granting the motion, the court ordered counsel to return after a lunch recess to "tell [the court] what you want to do."
When counsel returned from the lunch recess, the following colloquy occurred:
"[Borad's counsel]: Your honor, we propose that we draft a judgment based on the court's ruling this morning. We don't think a statement of decision is necessary, and [we will] just go ahead and file under California Rules of Court and draft a judgment, get it over to counsel, and to the court, and then the objections
"The Court: Are preserved. I understand. That's fine.
"[Borad's counsel]: All right. We will take care of that.
"The Court: Thank you very much.
"[The District's counsel]: Thank you very much, your honor.
"The Court: Put the matter on the 45-day dismissal calendar.
"(Proceedings concluded.)"
On or about March 6, 2009, Borad's counsel filed a proposed judgment that stated that Borad was the prevailing party on his claims, "having achieved by the litigation restoration of 26 days of sick leave." Borad's proposed judgment also stated that he was entitled to recover attorney fees pursuant to section 12965, in an amount to be determined in subsequent proceedings.
The District filed various objections to Borad's proposed judgment. The District claimed that Borad had abandoned his case at trial after the trial court ruled on the District's in limine motion, and that the District was therefore the prevailing party. The District also claimed that Borad was not entitled to recover attorney fees. The District filed a motion to enter a judgment of dismissal in its favor. In support of its motion, the District filed a brief, a declaration of counsel, the reporter's transcript from the March 2 proceedings, objections to Borad's proposed judgment, and a proposed judgment of dismissal.
After the District filed its motion, Borad filed a motion to have judgment entered in his favor as the prevailing party. In a brief in support of his motion, Borad argued that the trial court should find that he was the prevailing party under the catalyst theory, as described in Tipton-Whittingham and Graham. Acknowledging that "the [trial] [c]ourt must determine that Plaintiff's lawsuit is not 'frivolous, unreasonable, or groundless' [citation]" in order to deem the plaintiff a prevailing party pursuant to a catalyst theory, Borad argued that his lawsuit had merit, for the following reasons:
"Plaintiff's FEHA claim is based on the District's failure to timely engage in the interactive process and its refusal to timely reinstate and/or accommodate Plaintiff. The District's duty to engage in a timely, good faith interactive process, reinstate him, and[/]or to consider reasonable accommodations, was triggered when Borad provided the District a medical release in February 2006, clearing his return to work with only minor restrictions. (See Prillman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 946-951.) Instead of reinstating Plaintiff or inquiring as to his medical restrictions, the District told Plaintiff he could not return to work unless the doctor removed all restrictions, arguably a per se FEHA violation. (See McGregor v. National Railroad Passenger Corp. (Amtrak) (9th Cir. 1999) 187 F.3d 1113, 1116 (employer's policy prohibiting an employee's return unless he or she is '100% healed, ' i.e. no restrictions, is a per se violation of the Americans with Disabilities Act.) Plaintiff repeatedly requested the District return him to work throughout March, April, and May, 2006, but the District refused to return him to work if there were any restrictions, and docked Plaintiff's sick time for the time he was off work.
"At the time Plaintiff requested accommodation in February 2006 through May 2006, he required no 'accommodation' other than he might have to use the electric scooter which the District had previously provided due to his knee injury, evidencing that the District could easily have accommodated him. Likewise, once the District engaged in the interactive process with Borad in August 2006, Borad was placed in the assignment the principal had made on May 30, 2006. The only 'accommodation' was that Borad was permitted to continue to use a chair he had previously used teaching."
Borad attached as exhibits to his motion a copy of the reporter's transcript of the March 2 proceedings, and his proposed judgment.
The District opposed Borad's motion on several grounds, including that Borad had not submitted any evidence demonstrating that his lawsuit had merit. The District argued:
"Here, Mr. Borad has submitted no evidence to the court for a determination that his FEHA claim had any merit at all. His instant motion contains no supporting evidence. At trial he did not produce evidence because he dismissed his case before evidence could be taken. The [District] was prepared at trial to show that it did not violate the FEHA, and that Mr. Borad was not entitled to money damages or relief of any kind. So this court cannot determine whether the lawsuit had merit. And the [District] maintains that the suit had no merit."
On September 17, 2009, the trial court issued a tentative ruling denying Borad's motion to have judgment entered in his favor, and granting the District's motion to enter a judgment of dismissal. The court reasoned that Borad had abandoned his claims at trial, and that the catalyst theory did not apply to FEHA claims.
The following day, the court held a hearing on the parties' motions for judgment. Borad's counsel argued that in Tipton-Whittingham, supra, 34 Cal.4th 604, the Supreme Court held that the catalyst theory applies to FEHA claims. The District's counsel argued that Borad had never made any showing that the District was liable on his claims, and that the court was therefore required to enter a judgment in favor of the District. The court stated that it would review the matter further.
On September 18, 2009, the court entered an order granting Borad's motion for judgment and denying the District's motion for judgment. In its order, the court reasoned:
"The Court finds that prior restoration of sick leave is sufficient to show that plaintiff overall was the prevailing party because he received one of the benefits he was seeking under this complaint. [Citation.] In California Attorney Fee Awards, the court quoted Folsom v. Butte County Ass'n of Govt's (1982) 32 Cal.3d 668, 685, that whether a party has prevailed for purposes of an award of fees depends on the impact of the action, not the manner in which the action was resolved. If the party obtained some relief from the conditions originally challenged and if that relief is attributable in some way to the lawsuit, then that party is the prevailing party. [Citation.] Under this rule, a party may be deemed to have prevailed if the results are achieved by a judgment, by settlement, or even by the voluntary corrective action of the defendants, as long as the corrective action was attributable to the lawsuit. [Citation.] [Citation.]"
On October 30, 2009, the court entered judgment in favor of Borad. In the judgment, the court stated that Borad was the prevailing party and that Borad was entitled to recover attorney fees pursuant to section 12965 in an amount to be determined at a later date.
On March 10, 2010, the court entered an order awarding Borad $22,532 in attorney fees.
III.
DISCUSSION
A. The trial court erred in failing to enter a judgment of dismissal in favor of the District after Borad abandoned his case at trial
The District claims that the trial court erred in failing to enter a judgment of dismissal pursuant to Code of Civil Procedure section 581 (hereafter, CCP section 581) after Borad abandoned his case at trial. Both parties contend that the District's claim raises a question of law, which is subject to de novo review. We assume that the parties are correct in this regard, and apply the de novo standard of review to the District's contention.
1. Governing law
CCP section 581 provides in relevant part:
"(a) As used in this section:
"[¶]... [¶]
"(6) 'Trial.' A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
"[¶]... [¶]
"(d) Except as otherwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendant, with prejudice, when upon the trial and before the final submission of the case, the plaintiff abandons it.
"(e) After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause."
"[T]he California Supreme Court has construed the phrase 'commencement of trial' in [CCP] section 581 to include 'determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions. [Citations.]' [Citation.] Therefore, 'commencement of trial' under [CCP] section 581 is not restricted to only jury or court trials on the merits, but also includes pretrial procedures that effectively dispose of the case. [Citations.]" (Gogri v. Jack In The Box Inc. (2008) 166 Cal.App.4th 255, 261-262 (Gogri), italics omitted.) Thus, "A plaintiff may... dismiss with prejudice after the commencement of trial by expressly requesting a dismissal [CCP § 581, subd. (e)] or by otherwise indicating an unequivocal intent to abandon the action (id., subd. (d); Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 213 [(Kaufman)])." (Kelley v. Bredelis (1996) 45 Cal.App.4th 1819, 1837-1838, italics omitted.)
2. Application
The trial court's granting of the District's motion in limine to preclude Borad from presenting any evidence as to liability constituted a ruling that effectively disposed of the case. Thus, at the time the trial court made this ruling, the trial had commenced for purposes of CCP section 581. (Gogri, supra, 166 Cal.App.4th at p. 262.) On appeal, Borad does not contend otherwise. The record is also clear that once the trial court ruled on the District's motion in limine, Borad did not intend to further pursue the action. This constitutes abandonment under CCP section 581, subdivision (d). After the court entered its ruling precluding Borad from presenting any evidence as to liability at trial, Borad's counsel stated, "[W]e propose that we draft a judgment based on the court's rulings this morning." The court then stated that it would place the matter on the "45-day dismissal calendar." Neither party objected to the court's proposal.
In the trial court, Borad offered a proposed judgment that stated that the matter "came on for trial on March 2, 2009, " and that "trial proceedings commenced with the Court's considering the parties' various motions in limine."
We reject Borad's argument that Kaufman, supra, 10 Cal.App.3d 206 supports the conclusion that Borad did not abandon his action pursuant to CCP section 581, subdivision (d). In Kaufman, the court held that the trial court erred in concluding that the plaintiff had abandoned a cause of action under former CCP section 581, subdivision 4. (Kaufman, supra, at p. 214.) In Kaufman, after the conclusion of the evidentiary portion of the trial, the trial court granted a directed verdict in favor of the defendant on one cause of action, based on the court's determination that the plaintiff had abandoned a second related cause of action during the trial. (Id. at p. 211.) The Kaufman court described the circumstances under which the trial court had determined that the plaintiff had abandoned his second cause of action as follows:
Former CCP section 581, subdivision 4 is identical in all material respects to CCP section 581, subdivision (d). (See Kaufman, supra, 10 Cal.App.3d at p. 212 [quoting former CCP § 581, subd. 4].)
"The [trial] court based this decision on an imperfect memory of statements by counsel made at a conference in the court's chambers. It is unnecessary to set out in detail the colloquy between court and counsel. Suffice to say there was a discussion between the court and counsel concerning the second cause of action and how it would be dealt with.
"The statement made by plaintiff at this in-chambers conference was at best, ambiguous. Although plaintiff suggested that he 'might' wish to abandon his second count at a future time, he qualified his statements repeatedly by reservation and equivocation. The record is devoid of any statement that could be mistaken for an unequivocal and voluntary motion to dismiss which demonstrated to the court an express intent to abandon plaintiff's 'Second Cause of Action.'
"Subsequent events at trial further corroborate this view. Throughout the remainder of the trial considerable evidence was introduced concerning matters pleaded in the so-called 'Second Cause of Action.' No question concerning the propriety of this evidence was raised by the defendant or the court until the time of the motion for a directed verdict." (Kaufman, supra, 10 Cal.App.3d at p. 213.)
Unlike in Kaufman, in this case Borad introduced no evidence in support of any of his claims. On the contrary, after the trial court entered a dispositive ruling against Borad pursuant to the District's motion in limine, his counsel effectively requested that the trial court dismiss the case. In sum, the record is clear that once the trial court ruled on the motion, Borad did not intend to pursue the action, and that he was abandoning it. (CCP § 581, subd. (d).)
We also reject Borad's contention that the fact that he sought to have the trial court enter a judgment finding him to be the prevailing party and requested that the trial court award him attorney fees demonstrates that he was not abandoning the action. Neither action manifests an intent to proceed with the action; the law is clear that a plaintiff may obtain attorney fees pursuant to a catalyst theory, notwithstanding that the action has been dismissed. (See Graham, supra, 34 Cal.4th at p. 563.)
In his brief, Borad acknowledges that the trial court could enter a judgment of dismissal, and still find that he was the prevailing party in the action pursuant to the catalyst theory as discussed in part III.B., post.
B. Borad failed to present substantial evidence that his lawsuit had merit, as is required in order to recover attorney fees pursuant to a catalyst theory
The District claims that Borad failed to present substantial evidence to support the trial court's award of attorney fees to Borad as a prevailing party under section 12965, subdivision (b), pursuant to a catalyst theory. Specifically, the District claims that Borad failed to present substantial evidence that his lawsuit had merit, as is required under Tipton-Whittingham, supra, 34 Cal.4th at page 610 and Graham, supra, 34 Cal.4th at pages 575 through 577.
1. Governing law and standard of review
In Graham, supra, 34 Cal.4th at page 560, the Supreme Court explained, "Under the catalyst theory, attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation." The Graham court described the showing that a plaintiff must make in order to recover attorney fees pursuant to Code of Civil Procedure section 1021.5 under a catalyst theory, as follows: "In order to be eligible for attorney fees under [Code of Civil Procedure] section 1021.5, a plaintiff must not only be a catalyst to defendant's changed behavior, but the lawsuit must have some merit... and the plaintiff must have engaged in a reasonable attempt to settle its dispute with the defendant prior to litigation." (Graham, supra, at pp. 560-561, italics added.)
The Graham court made it clear that "the [trial] court is... to gauge, objectively speaking, whether the lawsuit had merit." (Graham, supra, 34 Cal.4th at p. 575.) The Graham court described the standard that a trial court must apply in determining whether a lawsuit has merit:
"The trial court must determine that the lawsuit is not 'frivolous, unreasonable or groundless' [citation], in other words that its result was achieved 'by threat of victory, not by dint of nuisance and threat of expense.' [Citation.] The determination the trial court must make is not unlike the determination it makes when asked to issue a preliminary injunction, i.e., not a final decision on the merits but a determination at a minimum that ' "the questions of law or fact are grave and difficult." ' [Citations.]" (Graham, supra, at pp. 575-576.)
The Graham court outlined the showing that a plaintiff must make, and the process that a trial court must engage in, to determine whether a lawsuit has merit:
"Although the catalyst rule is sometimes formulated to permit an award of attorney fees as long as a lawsuit can survive a motion to dismiss or for judgment on the pleadings [citation], we see no reason to limit a trial court's inquiry regarding the merits of the case to an examination of whether the pleadings state a cause of action. When a lawsuit has been mooted by a defendant's change in conduct, some development of the factual record is required in order to prevail on a catalyst theory. At the very least, a plaintiff must establish ' "the precise factual/legal condition that [it] sought to change or affect" ' as a prerequisite for establishing the catalytic effect of its lawsuit. [Citation.] Sometimes this factual background will have been developed in the course of litigation. [Citations.] When the suit is mooted early in its prosecution..., it may generally be established during the attorney fee proceeding by declarations, or, at the discretion of the trial court, by an abbreviated evidentiary hearing. [Citations.] The trial court may review this factual background not only to determine the lawsuit's catalytic effect but also its merits. Attorney fees should not be awarded for a lawsuit that lacks merit, even if its pleadings would survive a demurrer. We believe that trial courts will be able to conduct an abbreviated but meaningful review of the merits of the litigation designed to screen out nuisance suits without significantly increasing attorney fee litigation costs." (Graham, supra, 34 Cal.4th at p. 576.)
In Tipton-Whittingham, supra, 34 Cal.4th at page 608, the court summarized the showing that a plaintiff must make in order to recover pursuant to a catalyst theory as follows:
"[A] plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense, as elaborated in Graham; and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit."
The Tipton-Whittingham court explained that the same standard applies whether the plaintiff seeks attorney fees pursuant to Code of Civil procedure section 1021.5, or section 12965, subdivision (b). (Tipton-Whittingham, supra, at p. 610 ["In light of similarities in language and purpose between Code of Civil Procedure section 1021.5 and Government Code section 12965, subdivision (b), we conclude that the catalyst theory, as articulated above, should apply to the award of fees under the latter statute"].)
On appeal, an appellate court reviews the record to determine whether there is substantial evidence that the plaintiff has established each of the prongs necessary to demonstrate his entitlement to an attorney fee award pursuant to a catalyst theory. (See Graham, supra, 34 Cal.4th at p. 577 ["DaimlerChrysler does not contend that the trial court's ruling on that point is unsupported by substantial evidence"]; Godinez v. Schwarzenegger (2005) 132 Cal.App.4th 73, 92 ["Our role on review is to determine whether substantial evidence supports the trial court's factual finding that plaintiffs' lawsuit was a catalyst to defendants' changed behavior"].)
2. Application
In its order granting Borad's motion for judgment, the trial court did not address whether the record contains substantial evidence that Borad's action had merit. It is clear that the record contains no such evidence.
Although Borad argued that the District had violated FEHA (§ 12940 et seq.) in a brief he filed in the trial court in support of his motion for judgment, Borad never presented any evidence to support this claim. For example, while Borad argued in his brief that, "Plaintiff repeatedly requested the District return him to work throughout March, April, and May, 2006, but the District refused to return him to work if there were any restrictions, and docked Plaintiff's sick time for the time he was off work, " Borad presented no evidence to support these assertions. Neither the reporter's transcript of the March 2 in limine proceedings, nor Borad's proposed judgment—the only two exhibits that Borad offered in support of his motion—contain any such evidence. In fact, the District argued in its opposition to Borad's motion for judgment, "Mr. Borad has submitted no evidence to the court for a determination that the FEHA claim had any merit at all." Yet, even after the District filed this opposition, Borad offered no evidence in support of his claim that his lawsuit had merit.
In his briefing on appeal, Borad repeats the same factual assertions that he made in his brief in the trial court, with no citation to evidence in the record that would support such assertions. Under these circumstances, we must conclude that Borad failed to present substantial evidence that his lawsuit had merit, as is required in order to recover attorney fees under FEHA pursuant to a catalyst theory. (See Tipton-Whittingham, supra, 34 Cal.4th at p. 608; Graham, supra, 34 Cal.4th at pp. 575-577.) The trial court thus erred in awarding Borad attorney fees pursuant to a catalyst theory.
The District also claims that Board failed to present sufficient evidence that his lawsuit "motivat[ed]" the District to restore his sick leave, that the restoration of his sick leave was the "primary relief" that Borad sought, and that Borad reasonably attempted to settle his claim prior to filing suit. (Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) We need not consider these additional arguments for reversal in light of our conclusion that Borad failed to present sufficient evidence that his lawsuit had merit, as required under Tipton-Whittingham (id.) and Graham, supra, 34 Cal.4th at pages 575-577.
At the time Borad filed his motion in the trial court, the law was clear that a plaintiff seeking to recover attorney fees pursuant to section 12965, subdivision (b) was required to present substantial evidence that his lawsuit had merit. Borad is therefore not entitled to attempt to make such a showing on remand. (Compare with Graham, supra, 34 Cal.4th at p. 577, fn. 8 [permitting plaintiff to attempt to demonstrate that lawsuit had merit on remand because "previous iterations of the catalyst theory did not clearly establish that... was at issue"].)
In his brief in support of his motion for judgment, Borad cited Graham and expressly acknowledged that he was required to demonstrate that this lawsuit had "merit" as that term is defined in Graham in order to recover attorney fees. (Graham, supra, 34 Cal.4th at p. 575.) However, as stated in the text, Borad failed to present any evidence in support of his contention that his lawsuit had merit.
IV.
DISPOSITION
The judgment and the postjudgment attorney fee order are reversed. The matter is remanded to the trial court with directions to enter a judgment of dismissal in favor of the District. The District is entitled to its costs on appeal in D056606. Each party is to bear its own costs on appeal in D057142.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.