Alvord v. Dept. of Social Services

Filed 6/18/07 Alvord v. Dept. of Social Services CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Irving S. Feffer, Judge. Affirmed in part and reversed in part.

Benjamin Robinson for Plaintiff and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Jacob A. Appelsmith, Assistant Attorney General, Silvia M. Diaz and Martin H. Milas, Deputy Attorneys General, for Defendant and Respondent.

INTRODUCTION

After this court dismissed an appeal and denied plaintiff Jon Alvords motion to vacate the dismissal and reinstate the appeal, remittitur issued and ordered costs on appeal awarded to defendant Department of Social Services of the State of California. Alvord appeals from a trial court order awarding attorney fees on appeal of $7,131.80 and costs of $663.20. We find that the grounds for our order denying the motion to vacate the dismissal and reinstate the appeal were exclusively procedural, and that the order did not address the substantive merits of the appeal. Thus this court did not find that Alvords previous appeal was meritless, defined as groundless or without foundation. Therefore the order awarding attorney fees incurred on appeal to the defendant was an abuse of discretion, and must be reversed. We find no error in the award to defendant of costs incurred in the prior appeal, and affirm that part of the order.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Jon Alvord filed Appeal No. B170516 from a judgment on a jury verdict rejecting Alvords claims that he was discriminated in employment based on race or age, that defendant Department of Social Services of the State of California (DSS) harassed him based on race or age, and that DSS retaliated against him in his employment for engaging in protected activity.

On December 10, 2003, Alvord was notified pursuant to former California Rules of Court, rule 17(a)(1). On December 24, 2003, Alvord requested an extension of time, which this court granted with the proviso that no further extensions would be granted absent exceptional or extraordinary circumstances beyond Alvords control. Thereafter an augmentation was granted and the augmented record was filed on August 10, 2004. On August 30, 2004, Alvord requested a second extension of time, which was granted. On September 20, 2004, Alvord requested a third extension of time, which was granted. Alvord filed no brief, and the appeal was dismissed on October 7, 2004.

On October 27, 2004, Alvord lodged a belated motion to vacate the dismissal and reinstate the appeal. Alvord also lodged an opening brief and an appendix. This court granted permission to file this motion and gave the DSS an opportunity to respond. On November 4, 2004, this court denied the motion to vacate the dismissal and reinstate the appeal, based on numerous factors: (1) a wholly unpersuasive declaration of appellants counsel; (2) an opposing declaration by a deputy attorney general for respondent stated that appellants proof of service for the opening brief was false; (3) appellants counsels prosecution of the appeal showed a history of delay; (4) the appeal appeared to be patently without merit, in that the proffered opening brief failed to set forth evidence supporting the jurys verdict and misapplied the standard of review; and (5) appellant had not presented an adequate record for review, resulting in statements in the opening brief unsupported by reference to the record.

Remittitur issued on December 9, 2004, and stated: Respondent shall recover costs on appeal.

On January 18, 2005, the DSS filed a motion for attorney fees on appeal, based on Government Code section 12965, subdivision (b), providing that the court could award reasonable attorney fees and costs to a prevailing party. A proof of service of the motion on Alvords counsel was attached. Also on January 18, 2005, the DSS filed a memorandum of $6,085.95 in costs on appeal, alleging $663.20 to prepare the reporters transcript and $5,422.75 in attorney fees. A proof of service of the memorandum of costs on appeal on Alvords counsel was attached.

On March 22, 2005, Alvord filed opposition to the motion for attorney fees on appeal. It alleged that the attorney fee motion was procedurally and substantively defective, in that the January 18, 2005, motion was not filed within 30 days of the December 9, 2004, remittitur, as required by Code of Civil Procedure section 1034 and former California Rules of Court, rule 26(d)(1). It also alleged that no memorandum of costs, disbursements, and fees was filed with the motion, and that the DSS provided no supporting documentation for its total amount expended and did not include a verified cost memorandum setting forth itemized costs, disbursements, and fees as required by section 1034. Alvords opposition argued that DSS had not shown that Alvords claim was frivolous, unreasonable, or groundless, or that the appellant continued to litigate after it clearly became so. Alvord argued that this standard was not met and thus the DSS should not receive attorney fees.

The reply brief by the DSS argued that based on Code of Civil Procedure section 1034, subdivision (b) and former California Rules of Court, rules 27(d) and 870.2, the DSS had 40 days after issuance of remittitur to serve and file a verified cost memorandum and its attorney fee motion was therefore timely. The DSS contradicted Alvords argument that no cost memorandum was filed, citing the attachment to the notice of motion and an attorneys affidavit. The DSS argued that the reasons in the Court of Appeal order denying vacation of the dismissal and reinstatement of the appeal showed that the appeal was frivolous and justified the attorney fee award.

At an April 4, 2005, hearing, Alvords attorney stated he had not been served with a cost memorandum, and saw that cost memorandum for the first time when it was presented to him in the hearing. The trial court continued the matter to May 11, 2005, for service of the cost memorandum on Alvords counsel and for supplemental briefing and declarations about service or lack of service of the cost memorandum.

The DSS supplemental brief filed on April 29, 2005 contained supporting documentation concerning attorney fee and paralegal fee billings, totaling $8,472 as of April 13, 2005. Alvord claimed to have been first served with a verified cost memorandum on May 10, 2005. The DSS filed a supplemental reply with documentation on May 23, 2005.

Alvords supplemental brief in opposition to the DSS motion for attorney fees again argued that the motion should be denied as untimely and because the fees requested were unreasonable and unsupported by documentation.

A hearing was held on May 25, 2005. The trial court found that service of the motion was proper and the motion was properly documented. The trial court also found that the Court of Appeal had found that the appeal was frivolous. The trial court awarded $7,795 in favor of DSS, comprising attorney fees on appeal of $7,131.80 and costs on appeal of $663.20.

Notice of entry of the order awarding attorney fees and costs on appeal was served on June 14, 2005. Alvord filed a timely notice of appeal.

ISSUES

Plaintiff Alvord claims on appeal that:

1. The order awarding attorney fees and costs should be reversed because plaintiffs trial showed that plaintiffs case was not frivolous, unreasonable, or without foundation, and the appeal was dismissed on procedural grounds without substantive review by this court;

2. Defendants motion for attorney fees and costs on appeal was defective in that service of the verified memorandum of costs was untimely; and

3. The trial court made no written findings.

DISCUSSION

1. Attorney Fees and Costs on Appeal Under the California Fair

Employment and Housing Act

This case went to trial on causes of action for violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.) because of alleged employment discrimination and harassment based on race or age, and because the employer, DSS, allegedly retaliated against Alvord in his employment for engaging in protected activity. Government Code section 12965, subdivision (b) states: In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorneys 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.

Attorney fees should be awarded to a prevailing defendant only where the action brought is found to be unreasonable, frivolous, meritless or vexatious,   and  the term meritless is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . .  [Citation.] (Jersey v. JohnMuirMedicalCenter (2002) 97 Cal.App.4th 814, 831.)

As distinguished from attorney fees, ordinary litigation costs are recoverable by a prevailing FEHA [California Fair Employment and Housing Act, Gov. Code 12900 et seq] defendant even if the lawsuit was not frivolous, groundless, or unreasonable. (Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 135-136.)

A prevailing defendant is also entitled to costs on appeal, and to attorney fees on appeal if the appeal meets the Jersey standard. (Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 771-772.) An attorney fee award to a prevailing party under Government Code section 12965 is reviewed for abuse of discretion. (Id. at pp. 765-766.)

2. The Order Awarding Attorney Fees Incurred on Appeal Was an Abuse

of Discretion and Must Be Reversed

For purposes of an attorney fee award to a defendant who prevails in a FEHA action, meritless is defined as groundless or without foundation, rather than simply as the fact that the plaintiff ultimately lost. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 922.) Where a ruling rests on procedural grounds, such as failing to meet the burden of proof by admissible evidence and failing to comply with procedural requirements, that ruling does not address the legitimacy or reasonableness of the underlying facts supporting the claim. (Id. at p. 923.)

The order denying Alvords motion to vacate the dismissal and reinstate the appeal relied exclusively on procedural grounds. This court found that the moving declaration of appellants counsel was unpersuasive, in that it asserted that counsel consulted with his secretary regarding the interpretation of former California Rules of Court, rule 17(a). This court cited defendants counsels opposing declaration stating that appellants proof of service attached to appellants opening brief was false. The order referred to a history of delay by appellants counsel in prosecuting the appeal, in that after appellant received a former rule 17(a)(1) notice and was granted three extensions, appellants counsel filed no brief. The order found that the opening brief contained two defects: it failed to set forth evidence supporting the jurys verdict and instead set forth evidence in the light most favorable to the appellant, and it misapplied the standard of review, erroneously presenting substantial evidence to support plaintiffs causes of action rather than correctly addressing whether substantial evidence supported the jurys determination. Finally, the order found that appellant had not presented an adequate record for review by failing to designate a September 10, 2004, hearing on a motion for attorney fees and costs, while asserting that in that hearing the trial court ruled that plaintiffs case was not frivolous.

Thus when the order denying Alvords motion to vacate the dismissal and reinstate the appeal stated that the appeal appears to be patently without merit, the grounds for that statement were exclusively procedural. The order did not address the substantive merits of the appeal, having found that the procedural defects of the appeal made it impossible to do so. For purposes of an attorney fee award to a prevailing defendant, this courts order did not find that the former appeal was meritless, defined as groundless or without foundation. (Bond v. Pulsar Video Productions, supra, 50 Cal.App.4th at p. 922.) Therefore the order awarding attorney fees incurred on appeal to the defendant was an abuse of discretion, and must be reversed.

As stated, an award of costs incurred on appeal by the defendant is not subject to the higher standard and a prevailing FEHA defendant can recover ordinary litigation costs incurred on appeal even if the lawsuit was not frivolous, groundless, or unreasonable. No claim is made that the cost award was erroneous under this standard, but we address Alvords other claims in relation to that cost award.

3. Defendant Timely Filed a Verified Memorandum of Costs on Appeal

Alvord claims that defendant failed to serve a timely memorandum of costs pursuant to former California Rules of Court, rule 27(d)(1).

That rule stated: Within 40 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 870. Former California Rules of Court, rule 870(a)(1) stated, in relevant part: The memorandum of costs shall be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.

Alvord claims his attorney was not served with a verified memorandum of costs until May 10, 2005, and thus defendant did not comply with former California Rules of Court, rule 27(d)(1). The record, however, contains a proof of service for a verified memorandum of costs on appeal served on plaintiffs counsel on January 18, 2005. Despite Alvords counsels claim that he never received the verified cost memorandum, the trial court found that it was properly served on January 18, 2005. As the record contains defendants proof of service, substantial evidence supports that determination.

4. Reversal of the Attorney Fee Award Makes Remand for Written

Findings Unnecessary

Alvord claims error because the trial court made no written findings.

Trial courts are required to make written findings reflecting the Christiansburg/Cummings standard^[[1]] in every case where they award attorney fees in favor of defendants in FEHA actions. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 868.) Where the trial court does not make required findings, the matter must be reversed and remanded for findings, unless the appellate court determines no such findings reasonably could be made from the record. (Ibid.) In this case this court has found that Alvords appeal did not meet the Christiansburg/Cummings standard and therefore the attorney fee award was an abuse of discretion. No remand is necessary for written findings as to attorney fees.

As stated, ante, costs are not subject to the higher Christiansburg/Cummings standard and are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable. (Perez v. County of Santa Clara, supra, 111 Cal.App.4th at p. 681.) No findings by the trial court were necessary; costs on appeal were awarded to defendant by this court in its remittitur.

DISPOSITION

The order awarding attorney fees incurred on appeal is reversed; the order awarding costs on appeal is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] The Christiansburg/Cummings standard refers to Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421-422, quoted in Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383: Under this standard, an attorney award to a defendant who prevails in a FEHA case should be made only where the action brought is found to be unreasonable, frivolous, meritless or vexatious. (Id. at p. 1387.) [A] plaintiff should not be assessed his opponents attorneys fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.  (Id. at p. 1388.)