Nelson v. Gray Systems

Filed 4/13/06 Nelson v. Gray Systems CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William C. Pate, Judge. Affirmed in part and reversed in part.

Plaintiffs Jeffrey C. Nelson and Byron C. Dale (together Plaintiffs) appeal a judgment that awarded attorney fees to defendants Gray Systems, Inc. (Company), Michelle Gray, and Darlene Parrish (collectively Defendants) after the jury returned a defense verdict in Plaintiffs' action against Defendants for, inter alia, wrongful race and gender discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).^[1] On appeal, Plaintiffs contend the trial court erred by: (1) awarding Defendants attorney fees pursuant to section 12965, subdivision (b); (2) not making requisite written factual findings; and (3) not apportioning the fees awarded among their FEHA and non-FEHA claims.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

In 1996 Company hired Nelson as sales manager of its information technology business. Company and Nelson agreed he would be compensated solely by commissions for contracts he obtained for Company. In 1997 Company became qualified to obtain federal government contracts up to $3 million without competitive bidding.^[3] Through Nelson's efforts, Company soon obtained large federal contracts. Company and Nelson agreed to lower Nelson's commission rate from 45 percent to 40 percent (apparently of net profits from the contracts he obtained). Company promoted Nelson to vice president of federal systems.

On Nelson's recommendation, Company hired Dale as his assistant. Company subsequently moved Nelson's and Dale's offices to an adjacent suite.

In 2002 Company terminated Nelson's employment and, soon thereafter, Dale's employment.

Nelson and Dale filed separate complaints against Defendants, both of which alleged eight causes of action: (1) wrongful termination in violation of public policy; (2) gender discrimination in violation of section 12940; (3) race discrimination in violation of section 12940; (4) retaliation in violation of section 12940; (5) retaliation in violation of Labor Code section 1102.5; (6) unpaid wages; (7) breach of the covenant of good faith and fair dealing; and (8) harassment, retaliation and discrimination based on sexual orientation in violation of section 12940.^[4] In support of their race and gender discrimination claims, Nelson and Dale alleged they are Caucasian males and Gray, Company's president, is a black female. Their complaints alleged Defendants (apparently Gray) had commented: " 'I'm not going to let my business be run by a couple of white guys.' " Furthermore, after Plaintiffs were hired, Company allegedly hired only females or minority males. After Plaintiffs complained about unequal treatment based on their gender, Company allegedly leased another office suite and separated Plaintiffs from its female employees. Defendants also attempted to reduce Plaintiffs' pay and commissions. Plaintiffs' complaints alleged their employment was terminated by Company as a result of their assertion of their right to discrimination-free employment and requests for lawfully earned pay. Before trial, Plaintiffs in effect dismissed their eighth cause of action for sexual orientation discrimination, representing to the court that it had been a "non-issue" throughout discovery in the case. At trial, Nelson testified he obtained about 90 percent of Company's business. He perceived Company's move of his and Dale's office to an adjacent suite as an attempt to physically segregate its male employees (Nelson and Dale) from its female employees (all of whom remained in the original suite). He testified a "girls versus boys" attitude at Company began when Parrish was hired as Company's chief financial officer. Parrish was abusive and hostile toward Nelson and Dale. Nelson told Gray about 15 times that he felt Company had a "girls versus boys" attitude and complained its male employees were being treated differently from its female employees because they were "the boys." Gray and Parrish would conduct meetings, go to lunch, and engage in other activities without his participation as an officer of Company. Furthermore, after Nelson and Dale were hired, all of the persons subsequently hired to work at Company's offices were female.^[5] After Nelson's termination, Company hired a female to replace him. Nelson testified he believed Company terminated his employment because he was a Caucasian male. Company gave him inconsistent reasons for terminating his employment. At first, Company told him it was not going to be able to "work things out" with him. Later, Company presented him with employment termination paperwork stating he was being laid off due to a reduction in work force. Nelson testified he did not believe there was a reduction in force because his position was filled within 30 days after his departure.

Dale testified that on two occasions he complained directly to Gray about his belief he was being treated differently from other employees because of his gender.^[6] Gray was dismissive, stating Dale's belief was "ridiculous" and waving her hand in the air. Subsequent to his complaints, he and Nelson were moved to the adjacent suite. Dale testified that Gray referred to Nelson and him as "the boys." Dale sensed an atmosphere of girls versus boys at Company. Dale testified that Parrish yelled at him during a telephone call, but did not treat the female employees in the same manner. Dale testified that at a Company Christmas party, Parrish fondled his genitals while they and other employees were all standing in a group. The group "laughed it off" and talked about it later during the party. Dale testified he believed his race and gender probably were factors in the termination of his employment.

John Achille, a black male, testified he was recruited by Gray to work for Company. He began working at Company in January 2000 and was employed by it for three and one-half years. His work location was at the Navy Medical Center. On two occasions during 2001 or 2002, Gray made statements to him regarding Nelson and Dale that he considered offensive. Gray made both statements while they were alone in her office. Gray's first statement was that she was not going to let "a couple [of] white guys" take over or run her company. Four to six months later, Gray made a second statement regarding Nelson and Dale to the effect that "white men think they know it all." Achille later told Nelson and Dale about Gray's statements. Achille told Nelson that he, as a black man, thought Gray had a racial bias. Achille also testified that he perceived Company as discriminating against males based on its pattern of hiring female friends of Gray and Parrish rather than male applicants who could do more for Company. Achille testified his employment was wrongfully terminated by Company based on gender and disability discrimination.

After Plaintiffs rested their case, Defendants moved for nonsuit on Plaintiffs' fourth, fifth and seventh causes of action. The trial court granted the motions. The court then noted that only Plaintiffs' first, second, third, and sixth causes of action remained.

In Defendants' defense, Gray denied she made any decisions regarding Nelson and Dale based on their race or gender. However, she admitted she stated at her deposition that Nelson complained to her about a "girls versus boys atmosphere" at Company, but she did not take it seriously as a complaint of discrimination. She also admitted she must have stated at her deposition that "the boys" were not discriminated against in the office. Gray denied using the phrases "white guys are trying to run my company" and "white guys think they know everything." She stated she terminated the employment of Nelson and Dale for the following reasons:

"Mr. Nelson, we terminated his agreement because [he] was no longer marketing I.T. personnel. We were not coming to a good conclusion on what he should receive as pay. We wanted to restructure that position. And I think I'd heard enough comments from people, clients, and subcontractors, that [he] didn't always represent the [C]ompany well and usually made negative comments about the [C]ompany; that he was the only one who really had any knowledge, he was the only one who could really do anything with the [C]ompany, and without him we would all fall apart. So with that, it was time to move on.

"With [Dale], I think it became obvious that without [Nelson] there, he would eventually begin to sabotage the contracts so it was time to move on."

At the conclusion of the trial, the jury returned a special verdict finding Nelson's and Dale's race and gender were not motivating reasons for Company's decision to terminate their employment. In accordance with the jury's verdict, the trial court entered judgment for Defendants.

Defendants filed a motion requesting an award of attorney fees and costs pursuant to section 12965. Plaintiffs opposed that motion. The trial court issued a tentative ruling granting that motion, stating:

"Defendants' Motion for [Attorney] Fees is hereby GRANTED in part.

" '[A] court may award defendant attorney fees if it finds ". . . the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." ['] [Citation.] The Court finds that Plaintiffs' FEHA claims against Defendants were indeed frivolous, unreasonable, and without foundation, and Plaintiffs did not promptly and formally dismiss these claims.

"Although Defendants are entitled to an award of [attorney] fees under these circumstances, such an award is limited to reasonable [attorney] fees. The Court has reviewed the billing statements submitted by Defendants and finds that Defendants are entitled to a total of $91,507.62 in reasonable [attorney] fees."^[7]

At oral argument after the trial court's tentative ruling, the court confirmed its tentative ruling awarding Defendants their attorney fees, stating the requested fees "seemed to be reasonable" and that "I think under the law, they're entitled to it because--I don't remember many cases because I do so many, but this one stuck out in my mind because it didn't really seem to have any basis for being in the courtroom I didn't think. That was just the way I viewed it."

Accordingly, the trial court entered a new judgment, containing an interlineated award of Defendants' attorney fees and costs.

Plaintiffs timely filed a notice of appeal.

DISCUSSION

I

Section 12965 Attorney Fee Awards to Defendants Generally

Section 12965 authorizes an award of attorney fees and costs to the prevailing party in an FEHA action. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386.) Section 12965, subdivision (b) provides, in part:

"In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's 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."

"The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act . . . . [Citations.] A trial court's award of attorney fees and costs under [section 12965, subdivision (b)] is subject to an abuse of discretion standard. [Citations.]" (Cummings, supra, 11 Cal.App.4th at pp. 1386-1387.)

Cummings stated: "The standard a trial court must use in exercising its discretion in awarding fees and costs to a prevailing defendant was set forth in the Supreme Court's decision in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 [54 L.Ed.2d 648, 98 S.Ct. 694]. In that decision the court reaffirmed its prior holding that a plaintiff who brings an antidiscrimination suit does so in the role of a private attorney general to vindicate 'a policy that Congress considered of the highest priority.' [Citation.] The court explained the purpose behind the fee provision was to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance. [Citation.] Thus, a prevailing plaintiff ' "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." ' [Citations.]" (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387, italics added.)

However, as to prevailing defendants, the standard is different. (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.) "[Christiansburg] pointed out these equitable considerations [regarding prevailing plaintiffs] were entirely absent, however, in the case of a prevailing defendant. Thus, the court found the standard for awarding prevailing defendants attorney fees and costs should be entirely different. The standard ultimately adopted by the court, and supported by the legislative history, directed 'such awards should be permitted "not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." ' [Citations.]" (Cummings, at p. 1387, italics added.) " '[T]he term "meritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . .' [Citation.]" (Ibid.) "Vexatious" does not require a finding of plaintiff's subjective bad faith for a fee award against the plaintiff. (Ibid.) " 'In sum, a [trial] court may in its discretion award attorney's fees to a prevailing defendant . . . upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.' " (Ibid.)

Christiansburg cautioned: "In applying these criteria, it is important that a [trial] court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. . . . [¶] . . . Hence, a plaintiff should not be assessed his opponent's attorney's 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." (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at pp. 421-422.) In Cummings, the Court of Appeal reversed the trial court's order awarding the defendant attorney fees incurred in defending an age discrimination claim even though the defendant prevailed on its summary judgment motion, because the plaintiff had "presented some evidence of age discrimination." (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1388, italics added.)

In considering a prevailing defendant's request for an award of attorney fees, a court must evaluate the plaintiff's entire action, not just the FEHA cause(s) of action. (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 832; Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 600.) "A civil action is based upon the injury to the plaintiff, and not any particular legal theory." (Delaney, at p. 600.) Furthermore, "[e]ven where the law or the facts appear questionable or unfavorable at the outset [of an action], a party may have an entirely reasonable ground for bringing suit." (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at p. 422.)

An award of attorney fees to a defendant under FEHA must be set aside if the trial court does not make express written findings necessary to support that award. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 867-868; Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1388.) Rosenman "impose[d] a nonwaivable requirement that trial courts make written findings reflecting the Christiansburg/Cummings standard in every case where they award attorney fees in favor of defendants in FEHA actions." (Rosenman, at p. 868.) Rosenman further stated: "The trial court should also make findings as to the plaintiff's ability to pay attorney fees, and how large the award should be in light of the plaintiff's financial situation." (Id. at p. 868, fn. 42.) If a trial court has failed to make the requisite findings to support its award of attorney fees to a defendant under FEHA, an appellate court must reverse the award and remand for such findings, "unless the appellate court determines no such findings reasonably could be made from the record." (Id. at p. 868, fn. omitted.)

II

Award of Attorney Fees to Defendants in This Case

Plaintiffs contend the trial court erred by awarding Defendants their attorney fees pursuant to section 12965 in the circumstances of this case.^[8] Because Plaintiffs presented evidence in support of their FEHA causes of action, they assert the trial court could not reasonably find their action was frivolous, unreasonable, and without foundation.

We conclude the trial court abused its discretion by concluding Plaintiffs' action was frivolous, unreasonable, and without foundation. Based on our review of the appellate record provided by the parties, Plaintiffs presented at least some evidence in support of their action. (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1388 [reversing fee award to defendant even though defendant prevailed on its summary judgment motion, because plaintiff had "presented some evidence of age discrimination."].) At trial, Plaintiffs presented Nelson's testimony that he complained to Gray that Company's male employees were being treated differently from female employees because they were "the boys." Apparently after those complaints, Nelson's and Dale's offices were moved to an adjacent suite, with the original suite then being occupied solely by Gray and other females. After Nelson and Dale were hired, all of the persons subsequently hired to work at Company's offices were female and, after the termination of Nelson's employment, Company hired a female to replace him. Furthermore, Parrish was abusive and hostile toward Nelson and Dale. Company gave Nelson inconsistent reasons for terminating his employment.

Dale testified he also complained to Gray about Company's discriminatory attitude against him based on his gender. Gray was dismissive, stating his belief was "ridiculous" and waving her hand in the air. Subsequent to his complaints, he and Nelson were moved to the adjacent office suite. Parrish yelled at Dale during a telephone call, but did not treat Company's female employees in the same manner. Dale also testified that at a Company Christmas party, Parrish fondled his genitals while they and other employees were all standing in a group. Dale believed his race and gender probably were factors in the termination of his employment.

Plaintiffs also presented the testimony of Achille, a black male, who described two offensive statements that Gray, a black female, made to him in the privacy of her office. Gray's first statement was that she was not going to let "a couple [of] white guys" take over or run her company. Four to six months later, Gray made a second statement regarding Nelson and Dale to the effect that "white men think they know it all." Achille also testified that he perceived Company as discriminating against males based on its pattern of hiring female friends of Gray and Parrish rather than more-qualified male applicants.

Although the jury presumably did not give the foregoing evidence the weight Plaintiffs hoped it would, that evidence nevertheless was at least some evidence to support their causes of action for race and gender discrimination. Had the jury found Plaintiffs' evidence credible and made inferences therefrom as suggested by Plaintiffs, its verdict could very well have been in Plaintiffs' favor. Furthermore, if Plaintiffs had presented no evidence to support their causes of action for race and gender discrimination, one might question why Defendants did not move for nonsuit on those causes of action as they did for other causes of action.^[9] By moving for nonsuit only on Plaintiffs' fourth, fifth and seventh causes of action, one could infer that even Defendants' trial counsel believed Plaintiffs had presented at least some evidence that, if believed by the jury, would support a verdict in Plaintiffs' favor on their causes of action for race and gender discrimination. Based on our review of the appellate record, we believe Defendants' trial counsel acted reasonably in not moving for nonsuit on Plaintiffs' causes of action for race and gender discrimination.

Our review of comparable cases involving this issue supports our conclusion the trial court abused its discretion by awarding Defendants attorney fees in this case. In Cummings, the trial court granted the defendant's summary judgment motion and subsequently granted the defendant's motion for attorney fees under section 12965. (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at pp. 1385-1386.) The Court of Appeal reversed the trial court's order awarding the defendant attorney fees because the plaintiff had "presented some evidence of age discrimination." (Id. at p. 1388, italics added.) Similarly, in Jersey, the trial court granted the defendant's summary judgment motion and subsequently granted the defendant's motion for attorney fees under section 12965. (Jersey v. John Muir Medical Center, supra, 97 Cal.App.4th at pp. 819, 830-831.) The Court of Appeal reversed the trial court's order awarding the defendant attorney fees because "plaintiff's action, while ultimately failing, can hardly be considered as frivolous." (Id. at p. 832.) Comparing Cummings and Jersey to this case, it is difficult to comprehend how Plaintiffs' ultimate failure to persuade the jury to believe their evidence and make their suggested inferences from that evidence could be considered more "frivolous" than the plaintiffs' failures in Cummings and Jersey to present sufficient evidence to defeat the defendants' motions for summary judgment.^[10]

Although we, like Rosenman, "decline to establish a bright-line rule whereby a plaintiff who survives a motion for summary judgment or nonsuit can never be liable for attorney fees," the exceptional circumstances that might warrant an award of attorney fees to a defendant do not exist in this case. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, supra, 91 Cal.App.4th at p. 866.) There is no evidence in the appellate record showing, and the trial court did not find, Plaintiffs' evidence was fabricated or the testimonies of Nelson, Dale, or Achille were blatantly false or perjurious. (Id. at pp. 866-867, 870; Cummings v. Benco Building Services, supra, 11 Cal.App.4th at pp. 1389-1390.) Furthermore, the record in this case does not show Plaintiffs' conduct was egregious or that their action "was patently baseless for objective reasons." (Cummings, supra, at p. 1389.) Plaintiffs' action also was not "obviously contrary to undisputed facts or well established legal principles specifically precluding recovery for the type of injury alleged." (Id. at p. 1390.) On the contrary, this case appears to be one merely in which "reasonable minds may differ as to the strength of [Plaintiffs'] case but that it would unreasonable to conclude [Plaintiffs'] action for [race and gender] discrimination was frivolous, unreasonable or without foundation . . . ." (Id. at p. 1389.) Accordingly, we conclude Plaintiffs' action "does not rise to the level of frivolity required to support" an award of attorney fees to Defendants under section 12965. (Rosenman, supra, at p. 870.) Like the plaintiff in Rosenman, Plaintiffs in this case "present[ed] a colorable claim." (Id. at pp. 873-874.)

Defendants' cited cases are inapposite and do not persuade us to conclude the trial court correctly awarded section 12965 attorney fees to them. Their primary case, Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, is factually inapposite to this case. In Linsley, the plaintiff filed a FEHA action even though he had previously executed a written release of all claims against the defendants. (Id. at pp. 764-765.) The trial court ultimately granted the defendants' motion for summary judgment and subsequent motion for attorney fees under section 12965. (Ibid.) The Court of Appeal affirmed the fee award, concluding:

"Plaintiff continued to litigate the matter after his counsel was advised of a release of all claims against the employer related to his termination, including an unlawful discrimination cause of action prior to service of the complaint. Under such circumstances, there was no legal basis to purse the unlawful discrimination cause of action because plaintiff, who was represented by an attorney, knew or should have known the claims were unreasonable or without foundation because they were explicitly the subject of the release. [Citations.]" (Linsley, at p. 770, italics added.)

Because Linsley involved the unusual circumstance of a patently frivolous action filed after a plaintiff executed a written release of all claims (without challenging the release's validity), it is inapposite to this case and does not provide support for Defendants' assertion the trial court properly awarded them attorney fees under section 12965.

Similarly, Bass v. E.I. Dupont de Nemours & Co. (4th Cir. 2003) 324 F.3d 761 is inapposite to this case because in Bass the plaintiff's discrimination claims "lacked any foundation in the record apart from her own conclusory assertions." (Id. at p. 767.) Unlike in Bass, the appellate record in this case contains evidence that did not consist merely of conclusory allegations and, had the jury been persuaded by it, would have supported a verdict in Plaintiffs' favor.

Defendants also cite a federal district court case, Peters v. Winco Foods, Inc. (E.D.Cal. 2004) 320 F.Supp.2d 1035, in support of their argument that the trial court's fee award in this case was proper because Plaintiffs' action as a whole lacked merit. In Peters, the district court stated it had discretion to award attorney fees to the defendant "where the action viewed as a whole lacks merit despite the presence of one or more legally tenable claims." (Id. at pp. 1039-1040.) However, the two United States Ninth Circuit Court of Appeal cases cited by Peters provide questionable support for that statement.^[11] (Peters v. Winco Foods, Inc., supra, 320 F.Supp.2d at pp. 1039-1040.) In fact, Peters effectively acknowledged that weakness, stating that "neither [of those two cases] addresses the precise situation before the court," but nevertheless "suggest" a fee award is allowable in such cases. (Id. at p. 1040.)

Furthermore, Peters is factually inapposite to this case because the plaintiff in Peters had been a frequent filer of disability discrimination actions in that district court, having filed at least 30 prior such actions involving "form complaints" and "alleging boilerplate violations." (Peters v. Winco Foods, Inc., supra, 320 F.Supp.2d at p. 1040.) In Peters, the district court concluded the plaintiff's "sweeping allegations" of disability law violations contained in the form complaint stated "only one legally and factually tenable claim regarding the height of a produce scale." (Ibid.) Because Plaintiffs' race and gender discrimination claims in this case were not an insignificant part of their action against Defendants in comparison to their other claims and Plaintiffs presumably were not frequent filers of discrimination actions, Peters is inapposite to this case and we decline to apply its reasoning in the circumstances of this case.

In any event, California cases state that in considering a prevailing defendant's request for an award of attorney fees under section 12965, a court must evaluate the plaintiff's entire action, not just the FEHA cause(s) of action. (Jersey v. John Muir Medical Center, supra, 97 Cal.App.4th at p. 832; Delaney v. Superior Fast Freight, supra, 14 Cal.App.4th at p. 600.) In so doing, a court must focus on the injury to the plaintiff and not any particular legal theory asserted by the plaintiff. (Delaney, supra, at p. 600.) In the circumstances of this case, Plaintiffs' primary injuries consisted of the termination of their employment by Company. Plaintiffs' complaint contained specific factual allegations relating to the termination of their employment. Although some of Plaintiffs' legal theories may have been meritless (e.g., sexual orientation discrimination), that does not require a finding that their entire action was frivolous, unreasonable, and without foundation, particularly when at least two causes of action (i.e., for race and gender discrimination) were not frivolous. Evaluating Plaintiffs' entire action based on their alleged injuries, we conclude it was not frivolous, unreasonable, or without foundation for purposes of section 12965 attorney fee awards.^[12]

Finally, Defendants argue the trial court properly awarded them attorney fees because Plaintiffs' race and gender causes of action were frivolous. However, as we concluded ante, there was at least some evidence that, had the jury believed it and made inferences therefrom as suggested by Plaintiffs, would have provided support for verdicts in their favor. Defendants' discussion of their own evidence (or their suggested inferences from Plaintiffs' evidence) does not show Plaintiffs' race and gender causes of action were frivolous. An action is not deemed frivolous, unreasonable, or without foundation merely because the plaintiff does not ultimately prevail. (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at pp. 421-422.) Therefore, although the jury presumably was persuaded by Defendants' evidence and suggested inferences from all the evidence, that fact does not show Plaintiffs' action was frivolous, unreasonable, or without foundation.^[13]

III

Remaining Contentions

Plaintiffs also contend the trial court erred by not making written findings to support its conclusion that their action was frivolous, unreasonable, and without foundation. Assuming arguendo the court erred by not making sufficient findings to support its conclusion, we need not remand this case for the trial court to make findings because there is no substantial evidence in the appellate record to support a finding that Plaintiffs' action was frivolous, unreasonable, or without foundation. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, supra, 91 Cal.App.4th at p. 869.) Alternatively stated, we conclude "no such findings reasonably could be made from the record." (Id. at p. 868, fn. omitted; see also Jersey v. John Muir Medical Center, supra, 97 Cal.App.4th at p. 831; Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1388.) Accordingly, we need not decide whether the trial court's order or oral statements at the fee award hearing satisfied the requirement that it issue written findings.^[14]

Finally, Plaintiffs contend the trial court erred by not apportioning the fees awarded among their FEHA and non-FEHA claims. However, because we reverse the court's entire award of attorney fees to Defendants, we need not address that contention.

DISPOSITION

The judgment is reversed to the extent it awards attorney fees to Defendants. In all other respects, the judgment is affirmed. Plaintiffs shall recover their costs on appeal.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Apartment Manager Lawyers.

^[1] All statutory references are to the Government Code unless otherwise specified.

^[2] Because the parties submitted appellants' and respondents' appendices in lieu of a clerk's transcript and reporter's trial transcript, our description of the factual and procedural background is based on the limited information contained in those appendices, which unfortunately do not include certain pleadings, documents or other information that may have been helpful in understanding this case and resolving this appeal (e.g., information whether the jury's verdict was unanimous or, if not, the degree of the division among jurors). To the extent the parties' briefs contain factual or procedural allegations not supported by the appellate record they have provided us (i.e., their appendices), we disregard those allegations as not supported by citations to the record.

^[3] At trial, Nelson testified Company became an "8A" contractor under the United States Small Business Administration's socio-economic disadvantaged program, allowing it to obtain direct awards of contracts of up to $3 million from federal agencies.

^[4] On December 24, 2003, the trial court issued an order consolidating Nelson's and Dale's cases.

^[5] Although some males were hired by Company, their work locations were at client sites.

^[6] When Dale complained to the human resources coordinator about the "boys versus girls" atmosphere, she replied Gray thought that complaint was ridiculous.

^[7] The court also awarded Defendants costs of $10,360.52.

^[8] Because Plaintiffs do not challenge the trial court's award of costs to Defendants, we do not address that aspect of its ruling.

^[9] In Defendants' brief, they argue: "As with the remainder of [Plaintiffs'] FEHA claims, [Plaintiffs'] discrimination claims lacked any factual or legal support whatsoever."

^[10] Furthermore, although the appellate record in this case is incomplete, we assume, as Plaintiffs represent, Defendants did not file a motion for summary judgment. If, as Defendants assert, Plaintiffs had no evidence to support their causes of action for race and gender discrimination, one might question why Defendants did not file a motion for summary judgment or, alternatively, summary adjudication of those causes of action. Based on our review of the appellate record, we believe Defendants' trial counsel acted reasonably in not moving for summary judgment or summary adjudication of Plaintiff's causes of action for race and gender discrimination.

^[11] Jensen v. Stangel (9th Cir. 1985) 762 F.2d 815 and Saman v. Robbins (9th Cir. 1999) 173 F.3d 1150.

^[12] Accordingly, we reject Defendants' apparent argument that they were entitled to section 12965 attorney fees because Plaintiffs' eighth cause of action for sexual orientation discrimination and fourth cause of action for retaliation were purportedly frivolous. As noted ante, although those causes of action were not presented to the jury for its determination, four other causes of action were presented to the jury.

^[13] Defendants' evidence supporting their proffered legitimate nondiscriminatory reasons for termination of Plaintiffs' employment and Gray's testimony refuting Achille's testimony are insufficient to show Plaintiffs' action was frivolous, unreasonable, or without foundation. Based on our review of the appellate record, it appears the jury could have reasonably concluded Defendants' proffered legitimate nondiscriminatory reasons for termination of Plaintiffs' employment were pretextual and did not disprove that race and/or gender discrimination was a motivating factor in Defendants' adverse employment decisions. Furthermore, because Achille's testimony was not patently false, perjurious, or otherwise incredible on its face, the credibility of, and weight to be attributed to, his testimony was a question for the jury. The fact that the jury may have found his testimony incredible does not show Plaintiffs' action was frivolous, unreasonable, or without foundation.

^[14] In any event, we doubt the trial court made sufficient written findings. Its order contained only a conclusory finding that Plaintiffs' action was frivolous, unreasonable, and without foundation. Its oral statement at the hearing that Plaintiffs' action "didn't really seem to have any basis for being in the courtroom" was, in effect, also conclusory and did not include any substantial findings to support that conclusion.