Metropolitan News-Enterprise


Wednesday, March 12, 2008


Page 1


C.A. Upholds Fee Award Against Losing Plaintiff in FEHA Case


By a MetNews Staff Writer


A plaintiff who brings a frivolous Fair Employment and Housing Act suit has the burden of showing financial inability to pay in order to avoid a fee award, the Fourth District Court of Appeal held yesterday.

Affirming an award of nearly $40,000 against Daniel Villanueva, an employee of the City of Colton, Div. Two said Villanueva failed to demonstrate that his suit was not frivolous or that he was unable to pay the city’s fees. The court agreed with the plaintiff that he had an arguable basis for appeal, however, and denied the city’s request for additional fees incurred in the appellate court.

Villanueva sued after the city suspended him without pay for five days for failing to investigate an alarm at a treatment plant and later demoted him from his position as a lead operator in its Wastewater Division.

The city moved for summary judgment. It argued that the negligent manner in which Villanueva had handled the alarm incident justified his suspension, and that the subsequent elimination of Villanueva’s position was due to the city’s anticipated budget shortfall necessitating a reduction in force. 

Superior Court  Judge Christopher Warner sustained all but one of the city’s objections to Villanueva’s proffered evidence to support his claims. After finding no evidence of “racial animus or other impermissible employment activity,” Warner ordered Villanueva to pay to the city the sum of $39,472.30 in attorney fees. 

Justice Douglas Miller, writing for the Court of Appeal, explained that an employer moving for summary judgment in a discrimination case must set forth competent, admissible evidence to show legitimate, nondiscriminatory reasons for its complained-of actions.  To defeat the employer’s action, the employee must demonstrate that the employer’s justifications for its actions were pretextual, the justice noted.

“[O]ur task in undertaking a de novo review in this case has been simplified in that virtually every piece of evidence submitted by Villanueva in opposing summary judgment was excluded in response to the City’s objections,” Miller wrote. “Stripped of the excluded evidence, there is absolutely nothing to support [Villanueva’s] theory.”  

Section 12965(b) of the FEHA authorizes an award of reasonable attorney fees and costs to the prevailing party in a discrimination action. But, Miller opined, “[T]he public policy behind the FEHA is served by not discouraging [plaintiffs] from pursuing the litigation by potentially imposing fees that could easily devastate them financially simply because a few file frivolous claims.”

Citing Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, the appellate court held that a plaintiff’s ability to pay must be considered before a final award is entered.

Villanueva argued that the city had failed to demonstrate that he was financially able to withstand the fee award, and claimed “[t]ypically, no one would expect a wage earner at a public employer to be able to withstand such an award.”  But he offered no evidence that might have justified a reduction in the award, Miller said.

“Thus, while we are confident that a trial court has an obligation to consider a losing party’s financial status before assessing attorney fees under the FEHA,” Miller concluded, “on the record before us we are unable to say that the court’s fee award was an abuse of discretion.”

“[T]he City’s entitlement to an award of attorney fees under the statute cannot seriously be questioned,” he said. “Indeed, the record reflects overwhelming evidence that the lawsuit was unfounded, unreasonable, and frivolous…. [But] we cannot say the same about his appeal.”

Because Villanueva raised an arguable issue as to the circumstances in which a trial court is required to consider a plaintiff’s ability to pay an award of attorney fees, the appellate court denied the city’s request for fees incurred during the appeal, and only awarded the city’s costs.

Justices Art W. McKinster and Jeffrey King joined Miller in his opinion.

The city’s attorney, John D. Higginbotham of Best, Best & Krieger said the action “was a frivolous lawsuit from the beginning,” adding “the fact that it was frivolous only became more and more apparent as the case went on.”

The city is “happy that the fees award was upheld and we are going to collect our costs [on appeal],” he commented. 

The attorney fees the city had requested on the appeal were not substantial, Higginbotham said, and based on the award of attorney fees for the trial, costs and interest on the judgment he opined that the city would still recover over $50,000, which would sufficiently reimburse the city and was “more than enough to send a message to people who file frivolous lawsuits.” 

Villanueva’s attorney could not be reached for comment.

The case is Villanueva v. City of Colton, 08 S.O.S. 1480.


Copyright 2008, Metropolitan News Company