Brown v. F.Rodgers Insulation

Filed 3/5/07 Brown v. F.Rodgers Insulation CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Dennis W. Brown filed an action against F. Rodgers Insulation, Inc. (FRI) and others for age discrimination under the Fair Employment and Housing Act (FEHA) and under the common law. The trial court granted summary judgment in favor of FRI, and we affirmed in a nonpublished decision (Brown v. F. Rodgers Insulation, Inc. (Mar. 2, 2007, A114204) (Brown I)). The lower court granted FRI attorney fees and costs pursuant to Government Code section 1296, subdivision (b).^[1] Brown appeals and we affirm the lower courts award of attorney fees and costs.

BACKGROUND

The facts as already set forth in our nonpublished decision Brown I, are as follows: FRI is an insulation contractor and it hires its insulators through dispatches from the International Association of Heat and Frost Insulators and Asbestos Workers Local 16 (union). FRI hires both apprentices and journeymen through the union. Both apprentices and journeymen are dispatched in the same manner; apprentices work with journeymen until they pass an examination to achieve journeyman status.

Once an employer requests workers, the union dispatches workers on a first in first out basis, which means the worker who has been out of work the longest is the first to be referred out for work. Pursuant to their collective bargaining agreement (CBA) with the union, employers have the option to accept or reject the dispatched worker without just cause.

Section 107 of the CBA, known as the turnaround provision, provides: The Individual Employer may reject any employee or applicant for employment referred to it by the Employment Office of the Union. In its right of rejection, no Individual Employer shall reject any individual who has never previously been employed by said Individual Employer. Any employee or applicant for employment so rejected shall receive One Hundred Dollars ($100.00) reimbursed expenses, plus travel expenses and subsistence . . . if applicable . . . . In the exercise of his or its right to reject any employee or applicant for employment, the Individual Employer shall not discriminate against any such employee or applicant for employment by reason . . . of age, race, color, religion, sex, or national origin.

According to Steve Steele, the business manager of the union, section 107 of the CBA allows individual employers to reject any employee or applicant for employment referred to it by the Employment Office of the Union. Under this Section, individual contractors are allowed to reject dispatched employees without just cause. . . .

Brown began the unions insulation apprenticeship program after working for many years primarily as an asbestos abatement worker. In 2001, a performance report by Official Insulation Co. Inc., rated Brown unsatisfactory in four categories. His apprentice performance rating in June 2002 stated that he met expectations, but could improve [his] technical skills. A June 2002 apprentice work evaluation report stated that he needs improvement: Results fall short of expectations. Has not demonstrated expected skills and competencies. Under the remarks category, it stated that he should not be a 4th year!

Brown first began working for FRI in 2002 as an apprentice at a power plant job near Moss Landing. He and others were laid off when the workforce was reduced. His termination form said, yes, for rehire. Following the Moss Landing job, FRI transferred Brown to a job in Visalia, California.

FRI again hired Brown on May 15, 2003, as a journeyman, when the union dispatched him for a job at the Mirant Power Plant in Pittsburg, California (Pittsburg job). The job was a time and material job and therefore the customer paid by the hour for the insulators and also paid for the materials used. Shortly thereafter, FRI reduced the workforce and laid Brown off. The lay off form dated May 22, 2003, stated that Brown was laid off due to a reduction in force and it stated, yes, for rehire.

Larry Ray, the supervisor at the Pittsburg job, but not an FRI employee, recommended that four people be laid off. Included in these names was Brown. These four people ranged in age from the early 20s to the late 60s. Ray testified that he did not make his recommendation based on age and that older workers remained on the job. Ray testified that he recommended to lay Brown off because [h]e wasnt performing as well as some of the others. He maintained that his recommendation was based strictly on job performance. However, Ray also testified that he did not recall ever telling anyone that he would not hire Brown or that he was a slower worker, and Ray insisted that he would have no problem hiring him, on larger jobs.

Brown testified that he had no complaints about his treatment by the FRI while working at the Pittsburg job. He also testified that he did not believe that his age was the reason for his being laid off.

In June 2003, two weeks after Brown had been laid off from the Pittsburg job, Brown was dispatched by the union to another FRI job (June 2003 job). The superintendent who received the dispatch, Darren Holguin, called Dave Papini, a superintendent with FRI, and asked him if he knew Brown or knew anything about him. According to Papini, he told Holguin that Brown had been laid off from the Pittsburg job. Papini stated that he was not asked and he did not say anything about Browns age. Holguin invoked the contractual right under section 107 of the CBA and, by telephone, he rejected Brown, turning him around.

Subsequently, Brown was dispatched to FRI in November 2005. Brown turned the job down because he did not want to drive that far. Brown was dispatched to FRI again in December 2005; he was not turned around and he worked for FRI.

On December 1, 2004, Brown filed a complaint for age discrimination under the FEHA and common law against FRI, the union, and another company.^[2] He filed a first amended complaint on March 4, 2005, which included the same causes of action and added an allegation that he had exhausted his administrative remedies under the FEHA by filing his complaint against FRI with the Department of Fair Employment and Housing (DFEH) on June 24, 2003. He also alleged that he had received his right-to-sue letter. He based his claim against FRI on his rejection for the June 2003 job.

On January 11, 2006, FRI filed a motion for summary judgment against Browns first amended complaint. On April 10, 2006, the court granted FRIs motion for summary judgment. The court found that Brown has failed to raise a triable issue of material fact suggesting that defendant FRIs decision to lay him off and/or to turn plaintiff around/reject him was motivated by unlawful discriminatory animus. As a result, plaintiff failed to introduce evidence in support of a prima facie case of age discrimination. . . . The court entered its judgment of dismissal as to FRI on June 1, 2006. Brown appealed and we affirmed in our nonpublished decision, Brown I.

On July 31, 2006, FRI moved for attorney fees and expenses pursuant to section 12965, subdivision (b), and requested $99,330. On September 12, 2006, the trial court awarded attorney fees in the sum of $50,000 to FRI. When explaining the basis for the award, the court stated that Browns case lacked merit and was without foundation because Brown had very little beyond his suspicion that defendant FRI decided to lay him off in May 2003 and to exercise its turnaround rights under Section 107 of the Collective Bargaining Agreement in June 2003, because of plaintiffs age. The court pointed out that Brown failed to present evidence to establish the required prima facie case in opposition to FRIs motion for summary judgment and Browns argument that he had no obligation to make an affirmative showing that discrimination occurred until defendant showed that its actions were based on non-discriminatory reasons is not supported by the law. The court notes that plaintiff cannot reasonably argue that his inability to present his case was due to a lack of opportunity to conduct discovery. The Motion for Summary Judgment was heard approximately one month prior to the date set for trial. . . .

The trial court concluded that Brown may have had a basis to commence the action but Brown should have given more serous consideration to dismissing the case when the discovery conducted failed to corroborate his suspicions. The trial court found that FRIs request of $99,330 for attorney fees and expenses was not reasonable. Consequently, the court awarded $50,000 to FRI for attorney fees and expenses; an amount the court deemed reasonable.

Brown filed a timely notice of appeal from the order awarding FRI attorney fees and costs in the amount of $50,000.

DISCUSSION

Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ. Proc., 1021, 1033.5, subd. (a)(10)(B).) In the present case, the trial court awarded FRI attorney fees and costs pursuant to section 12965, subdivision (b). A trial courts award of attorney fees and costs under this section is subject to an abuse of discretion standard. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921.) Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

Section 12965, subdivision (b), states in relevant part: In actions brought under [FEHA], 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. Although the statute simply refers to the prevailing party, a California Court of Appeal followed the United States Supreme Courts construction of a parallel provision of federal law in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 (Christiansburg) andheld that attorney fees and costs under section 12965 may be awarded to a prevailing defendant only if the plaintiffs action was unreasonable, frivolous, meritless or vexatious. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (Cummings).) In considering a prevailing defendants request for an award of attorney fees under section 12965, a court must evaluate the plaintiffs entire action, not just the FEHA cause(s) of action. (Jersey v. JohnMuirMedicalCenter(2002) 97 Cal.App.4th 814, 832 (Jersey).)

Although not addressed by either party, recent cases have questioned whether costs can be conditioned on a finding that the action was unreasonable, frivolous, meritless, or vexatious. (See, e.g., Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671 (Perez); Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121.) The Perez court pointed out that costs and attorney fees have traditionally been treated quite differently under California law, with costs being awarded as a matter of right to a prevailing party, while attorney fees being unavailable unless expressly authorized (e.g., Code Civ. Proc.,  1032, subd. (b) & 1033.5). (Perez, supra, at p. 681.) The court in Christiansburg, supra, 434 U.S. 412 was concerned solely with attorney fees, and was not concerned with an award of costs. The Perez court noted that California courts have awarded costs as a matter of right to a prevailing party and there is no statutory authority for conditioning an award of costs under FEHA on a finding of unreasonableness, and therefore it was inappropriate for the Cummings court to apply the same standard to both attorney fees and costs. (Perez, supra, at p. 681.) The Perez court held that ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable. (Perez, at p. 681.) Thus, under this line of authority, with which we agree, FRI is entitled to its costs as the prevailing party.

With regard to the award of attorney fees, the lower court found that, after discovery was completed, Brown was aware that he had no evidence to support a claim of age discrimination and at that point his claim was meritless. Meritless means the claim is groundless or without foundation; it does not simply mean that the plaintiff has not prevailed. (Cummings, supra, 11 Cal.App.4th at p. 1387.) Subjective bad faith, however, is not required. (Ibid.)

Brown maintains that the lower court merely found that his case had no merit and there was no finding that the action was frivolous, vexatious, or conducted in bad faith. He contends that lack of merit is not the proper standard for awarding attorney fees against a losing plaintiff. (See, e.g, Jersey, supra, 97 Cal.App.4th at p. 831.)

In the present case, the trial court found that Browns case lacked merit and was without foundation . . . . The lower court should have stated that Browns action completely lacked merit, but it clarified that it was applying the proper standard for the award of attorney fees when it stated that Browns action was without foundation. Moreover, the court explained that its decision was not based simply on Browns losing the summary judgment motion, but on Browns failure to present any evidence to support his claim of age discrimination despite having ample time to conduct discovery. Thus, the court found that Browns action was meritless. Further, contrary to Browns assertion, the court did not have to find the action was frivolous and vexatious as the plaintiffs action has to be unreasonable, frivolous, meritless or vexatious.   (Cummings, supra, 11 Cal.App.4th at p. 1387, italics added.) Accordingly, we conclude the lower court applied the correct standard that Browns action was without foundation when determining whether to award attorney fees to FRI.

Brown claims that his claim had merit because he presented authority supporting his position that he did not have to present evidence of a discriminatory animus in his prima facie case. As we have discussed in Brown I, it is well settled in both the federal and state courts that the plaintiff does not have to present actual proof of discriminatory intent, but the plaintiff must present evidence to establish an inference of a discriminatory intent. (See, e.g., Warren v. City of Carlsbad (9th Cir. 1995) 58 F.3d 439, 442.) Brown presented no evidence to support an inference of a discriminatory intent.

Brown also argues that, even if he did have to present evidence of an inference of a discriminatory intent, he did that by establishing that FRI failed to keep proper records regarding the person hired instead of Brown. This failure, according to Brown, supported an inference of discrimination. As pointed out in Brown I, the issue of FRIs failure to keep records was not properly before us because Browns DFEH charge failed to mention the destruction of records. Since the destruction of records was not before us, it could not support an inference of discriminatory motive.

We reviewed the evidence submitted by Brown in opposition to FRIs motion for summary judgment in Brown I, and we concluded that Brown failed to submit any evidence that provides an inference of a discriminatory intent. Rather, he . . . simply produced evidence that he was turned around on one occasion and he is over the age of 40. We concluded as a matter of law in Brown I, that Brown cannot satisfy the elements of a prima facie case of discrimination [g]iven that section 107 of the CBA permits FRI to turn a union member around for no reason combined with the undisputed evidence that Brown was told that he was being turned around based on section 107, the undisputed evidence that Brown did not hear any age-related remarks from FRI employees, the undisputed evidence that Brown did not even know whether the person turning him around even knew his age, the undisputed evidence that FRI twice offered Brown a job after rejecting him for the June 2003 job, and the lack of any evidence of a discriminatory animus . . . .

Accordingly, we agree with the lower court that, once Brown learned through discovery that he had no evidence to support his claim of age discrimination, he had an obligation to dismiss his claim because it was without any foundation. He did not dismiss his claim and we therefore conclude that the lower court did not abuse its discretion in awarding FRI a little more than one-half of the attorney fees and costs requested.^[3]

DISPOSITION

The judgment is affirmed. FRI is awarded the costs of appeal.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] All further unspecified code sections refer to the Government Code.

^[2] Brown claims in his brief in this court that he dismissed the union as a defendant. The dismissal is not in the record on appeal. According to both parties, the trial court denied the other companys motion for summary judgment and the company prevailed in a trial. Brown has filed a separate notice of appeal from that judgment.

^[3] Brown does not challenge the reasonableness of the amount awarded.