Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 150202
RAYE, J.Although the trial court found that plaintiff Donald R. Hamilton failed to sustain his burden of proving employment discrimination, it denied the motion of defendants Jim Holt and SST Oil, Inc. (collectively SST) for attorney fees. Finding no abuse of discretion, we affirm.
FACTS
Hamilton worked for SST as a truck driver for nearly 20 years before he was terminated in October 2002. His last four years, however, had been interrupted by job-related back, neck, and shoulder injuries. The parties disputed how he was treated when he returned from his various leaves of absence. Hamilton claimed he was given an inferior truck and job assignments and was not notified of important meetings, whereas SST insisted he was provided a truck with a tilt steering wheel to accommodate his disability. Shortly before Hamilton was terminated, he was driving an SST truck with an unloaded trailer. According to Hamilton, a vehicle changed lanes in front of him. Hamilton braked hard and his trailer bounced into a parked vehicle without his realizing it, causing about $3,000 in damages. SST believed he had become a safety risk and for that reason, coupled with his abrasiveness, terminated him.
Hamilton filed an employment discrimination action against SST. Before trial, he refused SST’s offer to compromise for $25,000 pursuant to Code of Civil Procedure section 998.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court found that Hamilton had not met his burden of proving employment discrimination in violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), or a common law wrongful termination. The court went to some length to explain: “But to stop there I think would not be appropriate. I don’t think [Hamilton] really came close to meeting his burden of proof in this case.” The court dispelled the notion that there might be some question SST treated Hamilton improperly under the law and suggested that it might have been exposed to liability by retaining a driver who either did not acknowledge his responsibility for hitting a parked car (evidencing a lack of moral turpitude) or did not realize he had hit the car (evidencing a lack of competency behind the wheel). Thus, according to the court, Hamilton was fired for a nondiscriminatory reason.
The court also found, however, that Hamilton genuinely believed he had been wronged. According to the court, there was insufficient evidence that Hamilton had unclean hands or that there were grounds for an estoppel.
SST brought a motion for attorney fees. We have not been provided a copy of the transcript of the hearing. The trial court denied the motion for fees and, in a brief written ruling, simply held: “The court having read and considered the moving papers, and hearing oral argument, determines that [Hamilton’s] opposition is untimely, and will be disregarded. However, the court does not consider this case to be appropriate for an award of attorneys’ fees. Therefore, the court declines to exercise its discretion to make such an award. Further, attorney fees are not ‘costs’ under Code of Civil Procedure section 998.”
DISCUSSION
SST contends the trial court erred in three ways: (1) it failed to exercise its discretion; (2) even if the ruling is construed to be an exercise of discretion, it abused its discretion by refusing to award fees to the prevailing party as authorized by state and federal discrimination statutes; and (3) it mistakenly concluded that costs did not include attorney fees. We disagree.
First, defendant misconstrues the written ruling. While the sentence “Therefore, the court declines to exercise its discretion to make such an award” suggests the court did not exercise its discretion, the sentence is clarified by the preceding sentence. The court stated plainly, “However, the court does not consider this case to be appropriate for an award of attorneys’ fees.” Thus, when taken together, it is more reasonable to infer that the court did, in fact, exercise its discretion but decided not to award attorney fees.
Second, we cannot say the court abused its discretion on the admittedly skimpy record before us. The record does not include the transcript of the hearing on the motion for attorney fees. Moreover, since Hamilton has not participated in this appeal, we have little illumination into the court’s reasoning. SST emphasizes the court’s elaboration of its rationale in finding Hamilton had not sustained his burden of proving discriminatory conduct. But the court also made a point that Hamilton genuinely believed in his case and rejected SST’s allegation of unclean hands. While meager, this is enough to justify the court’s exercise of discretion and to preclude us from finding an abuse of discretion.
The third and final contention is slightly more nettlesome. The court ruled that attorney fees are not costs under section 998. Section 998 provides, in pertinent part: “The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.” (§ 998, subd. (a).) Where, as here, a plaintiff does not recover more than the defendant’s pretrial settlement offer, “the plaintiff . . . shall pay the defendant’s costs from the time of the offer.” (§ 998, subd. (c)(1).)
Code of Civil Procedure section 1032 costs are delineated in Code of Civil Procedure section 1033.5 and include attorney fees “when authorized by . . . [¶] . . . [¶] (B) Statute.” (§ 1033.5, subd. (a)(10)(B).) The FEHA provides that “[i]n actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs . . . .” (Gov. Code, § 12965, subd. (b).) Similarly, the ADA states that “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee (including expert fees) as part of the costs . . . .” (42 U.S.C.A. § 2000e-5(k).) Thus, both statutes authorize the trial court to award attorney fees in its discretion.
Relying on these statutes and Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103 (Scott), SST insists the trial court was duty bound to award attorney fees to the prevailing party as costs under section 998. In Scott, the court reiterated that the essential function of section 998 is to “‘encourage settlement by providing a strong financial disincentive to a party -- whether it be a plaintiff or a defendant -- who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer. . . .’ (Bank of San Pedro v. Superior Court [(1992)] 3 Cal.4th 797, 804.)” (Scott, supra, 20 Cal.4th at p. 1116.) The Supreme Court concluded “[i]t would greatly weaken the ‘strong financial disincentive’ of section 998 to deny a defendant in these circumstances its postoffer attorney fees.” (Scott, at p. 1116.)
But Scott involved a contractual provision mandating an award of fees to the prevailing party (Scott, supra, 20 Cal.4th at p. 1106), not a statute giving the court the discretion to award fees. Section 998 costs do not include attorney fees when, as here, the court exercises its discretion under the applicable statutes to deny an award. While Scott announces important policy implications of section 998 (Scott, at pp. 1112-1116), it simply does not apply to the discretionary denial of fees allowed by the applicable statute.
In sum, SST misreads the court’s ruling by parsing each sentence. Reading the ruling in its entirety, it is clear the court understood it had the discretion to award attorney fees to SST as the prevailing party. Having exercised that discretion to deny fees, it correctly concluded there were no fees to be included as costs under section 998. We agree with SST that the brief ruling is not a model of clarity and, if dissected, was susceptible to the interpretation SST offers. But giving the ruling a reasonable interpretation in its entirety, we conclude the court exercised its discretion, and we find no abuse of discretion or even of law.
DISPOSITION
The order denying the motion for attorney fees is affirmed.
I concur: DAVIS , J.
I concur in the judgment on the ground that appellant has not furnished an adequate record for review.
It is the burden of the appellant challenging a trial court’s decision on attorney’s fees to provide an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Where an appellant fails to furnish an adequate record for review, the appellant’s claim must be resolved against the appellant. (Id. at p. 1296.)
In the instant case, appellant has not timely included in the record on appeal the transcript of the hearing on the motion for fees or Hamilton’s opposition. In my view, these omissions are critical; the record on appeal is not adequate; and the trial court’s order denying fees must be affirmed.
SIMS , Acting P.J.