Wednesday, August 22, 2001
C.A. Overturns Order That Ex-Partner Pay Firm’s Fees in FEHA Case
Justices Uphold Ruling That Christensen, Miller Did Not Discriminate, but Say Suit Was Not Frivolous
By KENNETH OFGANG, Staff Writer/Appellate Courts
A $150,000 fee award in favor of one of the city’s major litigation firms, following a jury verdict rejecting a former partner’s claim the firm discriminated against her after she became pregnant, was overturned yesterday by this district’s Court of Appeal.
Div. Seven rejected Shari Cohen Rosenman’s claims that Los Angeles Superior Court Judge David Workman erred in some of his evidentiary rulings in her suit against Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro. The court upheld a 10-2 jury verdict in favor of the law firm.
But Justice Earl Johnson Jr., writing for a panel that included Justice Fred Woods and Los Angeles Superior Court Judge Paul Boland, sitting on assignment, said that the fee award couldn’t stand because the suit wasn’t “frivolous, unreasonable, or without foundation.”
A plaintiff whose Fair Employment and Housing Act claim survives motions for summary judgment and directed verdict and is rejected by a less-than-unanimous jury generally should not be held liable for the defendant’s attorney fees, Johnson said.
“[W]here the plaintiff’s claim is frivolous, vexatious or unreasonable, it is appropriate to award attorney fees to the prevailing defendant,” the justice wrote. “However, where the plaintiff presents a colorable claim, and particularly where the adverse jury verdict is less than unanimous, such an award is inappropriate in light of the very strong public antidiscrimination policy embodied in FEHA.”
Johnson warned that “[a]ny other standard would have the disastrous effect of closing the courtroom door to plaintiffs who have meritorious claims but who dare not risk the financial ruin caused by an award of attorney fees if they ultimately do not succeed.”
To that end, the justice said, the trial judge must make express factual findings in every case where a FEHA defendant is awarded fees, which Workman didn’t do. Even if such findings were to be implied from the evidence in Rosenman’s case, he added, they would not be supported by substantial evidence.
An appellate lawyer for Rosenman, who is now on inactive status with the State Bar, said he was “thrilled” with the decision. Johnson, Douglas Benedon of Benedon & Serlin said, did “a very thorough job” of analyzing the policy arguments and came to the right result.
Not only does Rosenman avoid a large judgment, her decision to sue over what she felt was mistreatment by the firm had been “vindicated,” Benedon said.
Benedon added that he was not surprised the court upheld the jury verdict, given the high standard an appellant must meet in attacking a verdict based on evidentiary rulings.
Appeal Said Likely
The lead defense counsel in the case, Allan Browne of Browne & Woods, said there was “a high probability” his client would petition the state Supreme Court for review. Rosenman had no credibility, Browne said, and under the Court of Appeal’s ruling “the standard [for recovery of attorney fees by a defendant] is set so high that people with marginal claims will make outrageous demands… content with the idea that they willl receive a substantial settlement rather than going to trial.”
Christensen, Miller, he said, made a reasonable monetary offer to Rosenman—he wouldn’t say how much—in order to resolve the dispute. But the firm felt it did nothing wrong and was gratified the jury agreed, he said.
Rosenman, a graduate of Hastings College of the Law, joined Christensen, Miller in 1989, the year she was admitted to practice. She was made a “non-equity partner,” at $120,000 a year plus bonuses, in January 1996, the same month she became pregnant with her first child.
She took maternity leave the following August under a firm policy allowing three months paid leave plus unlimited unpaid leave. In January 1997, she resigned from the firm.
Rosenman later sued, claiming that the firm had discriminated against her and constructively terminated her. She alleged that she was unfairly denied “special distributions” made to other non-equity partners during her leave; that the firm had failed to deny her reasonable requests to trim her workload prior to her taking leave, and in fact had assigned her more work than she could handle without endangering her health, and that she was retaliated against for complaining of ethical violations by senior partners.
The firm claimed that Rosenman was treated fairly and not discriminated against; that the denial of special distributions was based on performance problems, including missing the deadline for filing a brief; and that she was a “bald face liar” for claiming that her workload had been increased after she announced her pregnancy, when firm records showed that most of the cases she complained about were assigned to her earlier.
Rosenman testified on rebuttal that while she had gotten those cases earlier, she received new work assignments relating to them after she told the firm she was pregnant.
Johnson acknowledged that the majority of the jurors must have believed that Rosenman was prevaricating in claiming that the firm increased her workload after learning of her condition. But that doesn’t mean that this is necessarily the “rare case” in which a prevailing defendant will be awarded fees under FEHA.
Johnson rejected the plaintiff’s argument that a prevailing defendant should be denied fees in every suit that survives summary judgment, saying that would encourage the use of “fabricated evidence and false testimony.”
Rosenman, however, had “some basis to believe she might prevail at trial,” the justice said. She “clearly established a prima facie case,” Johnson said, adding that the fact that the jury believed the defendant’s witnesses were more credible than hers doesn’t establish that she lacked a colorable claim.
The case is Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, B131078.
Copyright 2001, Metropolitan News Company