Opinion
SUMMARY
An еmployee who was terminated after closing down a 24-hour service station for several hours, in violation of company policy, sued her employer and her supervisor, alleging claims of harassment on the basis of mental disability, retaliation, and wrongful termination, among others. The employer and supervisor sought and obtained summary judgment, and the supervisor then sought attorney fees. The court found the claims against the supervisor were frivolous and brought in bad faith, but awarded nominal attorney fees of $1 because the supervisor’s fees were paid by the employer. The employee appealed from the grant of summary judgment, and the employer and supervisor cross-appealed from the award of attorney fees. We find no merit in either appeal and affirm the judgment, with a modification in the amount of costs.
Laura Young, a student at Antelope Valley College, worked as a sales associate at an ExxonMobil service station in Lancaster on a part-time basis from April 2004 until she was fired on September 16, 2004. The station was open 24 hours a day. On September 15, 2004, Young worked a shift, alone, from 9:00 p.m. until midnight. The person scheduled to relieve her at midnight did not arrive. Young called Wanda Najera, the assistant station manager, “some time after midnight,” yelling and very angry, saying she had to leave because she had to study, and that she was shutting down the station. Najera told her she couldn’t do that, and that she (Young) should wait for Najera to come to the station. At 12:25 a.m., Young shut down all the gas pumps and never turned them back on, effectively closing the station (a “posted offense” which she knew could result in a suspension or discharge without prior notice). At 1:12 a.m., she logged off her cash register, and the station was then completely shut down. Young called Angela Lopez, the station manager, about 1:30 a.m., yelling and, according to Lopez, “out of control.” Lopez told Young she would get someone there as soon as she could, and called Najera. Young also called Najera a second time, again yelling at Najera, and Najera told her she would be there as soon as possible. When Najera got to the station around 3:00 a.m., the station was completely shut down; Najera restarted the pumps and started operating the station.
The next morning, Lоpez called Karen Johnson, a territory manager for Exxon Mobil Corporation (Exxon). Johnson went to the station on September 17 and met with Lopez about the incident. Johnson also reviewed Young’s personnel file, which reflected a number of verbal and written warnings to Young concerning absences, problems with customers, and incidents of insubordination.
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Lopez had prepared forms for Young’s termination. Johnson
A few months later, Young filed a charge with the California Department of Fair Employment and Housing, alleging she was fired, harassed, and retaliated against by Lopez and other Exxon employees based on a mental disability. She requested and received a right-to-sue notice, and on February 9, 2005, filed a complaint against Exxon and Lopez. The complaint alleged causes of action against Exxon and Lopez for disability discrimination and harassment in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and for intentional infliction of emotional distress, as well as causes of action against Exxon for wrongful termination in violation of public policy and violation of Labor Code section 1102.5, subdivision (c). 2 The substance of Young’s complaint was as follows.
As a result of a tumor removed from her brain when she was a child, Young suffers from a mental disability: visual and auditory processing deficiencies, 3 manic depression and obsessive compulsive disorder. Exxon was not aware of Young’s disability when she was hired in April 2004, but on July 3, 2004, Young was given a warning for showing disrespect to Lopez when Lopez reprimanded her for failing to appear for work without calling. Young then advised Lopez of her disability, telling Lopez that she needed to take medication “to avoid becoming manic and to control compulsive behaviors associated with [her] mental and physical disabilities associated with her childhood brain surgery.” 4
Exxon and Lopez moved for summary judgment or, in the alternative, summary adjudication of each cause of action and of Young’s claim for punitive damages. They asserted there was no evidentiary support for Young’s claims; even if Young could establish a prima facie case of disability discrimination, Exxon had legitimate, nondiscriminatory reasons for terminating Young, and Young could not establish those reasons were pretextual. As for Young’s harassment claim, Exxon contended most of her allegations lacked evidentiary support, and her coworkers’ conduct was not severe or pervasive enough to constitute disability harassment (and, as to her claim against Lopez, Young admitted in her deposition that Lopez herself did not harass her). Finally, Exxon contended the punitive damages claim failed as a matter of law because the alleged wrongful acts were not committed by officers or managing agents of Exxon.
The trial court granted the motion for summary judgment, finding Exxon showed legitimate, nondiscriminatory and nonretaliatory reasons for terminating Young’s employment, and Young presented no facts showing Exxon’s stated reasons were pretextual. 5
The trial court found that Young’s claims against Lopez were “unreasonable, frivolous, meritless and vexatious,” “without foundation” and “brought in subjective bad faith.” However, while the fees сlaimed to be attributable to Lopez’s defense were reasonable in amount, Exxon paid for the defense. The court observed that an award to Lopez “would actually be an award to Exxon, which does not claim [Young’s] claims against it were frivolous.” The trial court concluded this “does not seem right,” and awarded nominal attorney fees of $1.
On April 4, 2006, judgment was entered in favor of Exxon and Lopez in the amount of $25,999.93 ($1 in attorney fees and $25,998.93 in costs). (Exxon аdmits the amount of costs shown in the judgment was erroneous, and the judgment should have reflected a total amount of $7,249.93 ($1 in attorney fees and $7,248.93 in costs).) Young appealed, and Exxon and Lopez cross-appealed the attorney fee award of $1.
DISCUSSION
I. *
Exxon and Lopez cross-appealed from the order and judgment awarding attorney fees of only $1 to Lopez. They assert that because the trial court found Young’s claims against Lopez individually wеre “unreasonable, frivolous, meritless and vexatious,” and the fees “claimed to be attributable to the defense of Ms. Lopez [were] reasonable in amount,” the trial court abused its discretion in nonetheless refusing to award the $18,750 requested to Lopez. We find no abuse of discretion by the trial court.
We review the principles governing attorney fee awards in FEHA actions, and then turn to the trial court’s order in this case.
In actions under the FEHA, the court, in its discrеtion, may award reasonable attorney fees to the prevailing party. (Gov. Code, § 12965, subd. (b).) California courts have followed federal law, and hold that, in exercising its discretion, a trial court should ordinarily award attorney fees to a prevailing plaintiff, unless special circumstances would render an award of fees unjust. A prevailing defendant, however, should be awarded fees under the FEHA only “in the rare case in which the plaintiff’s action was frivolous, unrеasonable, or without foundation.”
(Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro
(2001)
Here, we have the unusual case in which a FEHA action is found to be frivolous as to one defendant but not the other, the latter of whom incurred, was liable for, and paid all the fees. Exxon says the issue to be
Our conclusion is consonant with the principles described in Rosenman for fee awards in FEHA cases, and does not conflict in any way with the cases under other statutes that permit attorney fee awards to prevailing parties who have not paid or incurred fees.
First,
Rosenman
and its predecessor cases tell us the standard by which to measure the exercise of the trial court’s discretion in awarding attorney fees to a prevailing defendant in a FEHA case: namely, only in the “rare case” in which the plaintiff’s action was frivolous, unreasonable or without foundation. (Ro
senman, supra,
Second, as Exxon points out, there are many cases in which the courts have awarded attorney fees to prevailing parties who, like Lopez, are not actually liable for or have not incurred or paid fees. But in all those cases, the attorney fee award actually benefits the prevailing party or an entity which has provided the services and would otherwise not be compensated for them. (See, e.g.,
Lolley v. Campbell
(2002)
Third, there was no evidence that Exxon incurred fees on Lopez’s behalf that it would not have incurred had Lopez not been named as a defendant. While the trial court found the amount of feеs “claimed to be attributable to the defense of Ms. Lopez”—one quarter of the total—was “reasonable in amount,” it appears from the supporting documentation that those fees, for the most part, would have been incurred by Exxon whether or not Lopez (who was in any event a key actor in Young’s lawsuit) was named as a defendant. Counsel’s summary of 10 “key activities undertaken on Angela Lopez’s behalf’ in defending Young’s claims contains only one item that is
Fourth,
Rosenman
instruсts that trial courts should “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.”
18
(Rosenman, supra,
In short, dеspite its finding that Young’s case against Lopez was frivolous and vexatious, the trial court had the discretion to deny attorney fees to Lopez. Because the award would benefit only Exxon, a defendant which was not otherwise entitled to an award and which did not show it incurred any significant fees on Lopez’s behalf that it would not have incurred in any event, we see no abuse of discretion in the trial court’s decision.
The judgment, modified to reflect costs of $7,248.93 rаther than $25,998.93, is affirmed. The parties shall bear their own costs on appeal.
Rubin, J., and Flier, J., concurred.
Notes
Young’s personnel filed showed a warning on May 6, 2004, for not appearing for work the previous day and not calling, and a warning on June 23, 2004, for “coming late almost every day.” The file shows a warning on July 3, 2004, when she failed to appear for work the previous day without calling, and then “gave [Lopez] an attitude in front of another cashier . ...” A warning on August 1, 2004, stated Young “smashed another sales associate,” should control her temper, and that her “attitude towards employees and customers is getting out of [hand].” Another warning on the same date stated it was the second warning for Young’s temper; that she needed to control her attitude; and that “next time she could be subject to suspension or possible termination without any notice.” This incident involved a customer who asked for assistance with a broken cappuccino machine and wаs “very irritated” when Young informed him “that money was more important” (apparently referring to customers in line to pay for purchases). A warning on September 11, 2004, involved a customer complaint that Young was unwilling to help the customer when she put money in the carwash and received no wash; the customer said Young was “rude and very disrespectful,” and told Lopez she had “never experience^] such treatment from a cashier . ...” A warning dated September 13, 2004, stated that Young yelled at the assistant manager (Najera), rudely and in front of another sales associate.
Labor Code section 1102.5, subdivision (c), provides that an employer “may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”
According to Young, she has a “learning disability” with “no name,” which she described this way: “I understand things; I comprehend things perfectly. But the speed at which my eyes and ears observe what is to be processed by the brain, the brain process itself is a slower process, not much slower. But when, over a period of time, just, just like when you time something, the lengthier the project or activity, the more noticeable the slowness might be noticed, even though it’s really not that slow, but perfectly comprehendable [sic].” (Young also testified she worked as a chemistry tutor at school during the time she was employed by Exxon.)
The record of this July 3, 2004 warning contains the notation that Young told Lopez that she “didn’t mean it,” has a brain problem and needs to take medication to control her attitude, and reacts badly when she misses her medication.
The trial court stated in part: “[Young] has demonstrated that sometime between late June and August of 2004, [Young] told Ms. Lopez that she had а brain or mental condition that required her to be on medication. On August 1, 2004, the day after an incident involving pushing, shoving and hitting between [Young] and a co-worker, Amber, [Young] complained to Ms. Lopez that Amber had called her a ‘psycho retard.’ On September 7, 2004, [Young]
See footnote, ante, page 1467.
(See also
International Billing Services, Inc. v. Emigh
(2000)
The other nine key activities undertaken on Lopez’s behalf were responding to interrogatories and requests for documents, meetings with Lopez and other witnesses, the case management conference, the hearing on summary judgment, drafting discovery, the motion for summary judgment, declarations by various witnesses, depositions, and preparation of the memorandum of costs and motion for attorney fees.
As we have seen,
Rosenman
also expressly imposes a “nonwaivable requirement” that trial courts make written findings reflecting the applicable standard “in every case where they award attorney fees in favor of defendants in FEHA actions.”
(Rosenman, supra,