Baker v. Mulholland Sec. & Patrol, Inc.
| Decision Date | 28 March 2012 |
| Docket Number | Nos. B232172,B234487.,s. B232172 |
| Citation | 12 Cal. Daily Op. Serv. 3611,2012 Daily Journal D.A.R. 4093,204 Cal.App.4th 776,162 Lab.Cas. P 61241,139 Cal.Rptr.3d 235 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eric BAKER, Plaintiff and Appellant, v. MULHOLLAND SECURITY AND PATROL, INC., Defendant and Respondent. |
OPINION TEXT STARTS HERE
Eisenberg & Associates, Los Angeles, Michael B. Eisenberg and Joseph S. Socher for Plaintiff and Appellant.
Squire, Sanders & Dempsey, Los Angeles, Alexandra A. Bodnar, Casey J.T. McCoy; Ogletree, Deakins, Nash, Smoak & Stewart, Costa Mesa, and Alexandra A. Bodnar for Defendant and Respondent.
Eric Baker (plaintiff) sued Mulholland Security and Patrol, Inc. (defendant), for retaliation, failure to pay overtime compensation, and failure to maintain records, claiming he was terminated after just 13 days of employment when he complained about discriminatory remarks made at his workplace. The trial court disposed of his retaliation claim by summary adjudication, and the remainder of his claims were dismissed after the parties reached a settlement. The trial court concluded plaintiff was terminated for his poor performance and that plaintiff failed to demonstrate there were triable issues whether defendant's justification for its termination decision was pretextual. Plaintiff filed two appeals, which were consolidated, challenging the judgment on the retaliation claim, as well as the trial court's order awarding expert witness fees to defendant. Finding no error with the summary adjudication of plaintiff's retaliation claim, we affirm the judgment. However, we conclude the trial court applied an erroneous legal standard in awarding defendant its expert witness fees, and that any expert fee award would be an abuse of discretion because plaintiff made a sufficient prima facie showing of retaliation. We therefore reverse the expert fee award.
The following facts are undisputed: Plaintiff began working for defendant on February 18, 2009. After three days of training and seven days working as a security guard for defendant's client, the Heschel School, defendant received its first complaint about plaintiff's job performance. Atanacio “Tony” Guerrero (Guerrero), Heschel's maintenance manager, contacted defendant on March 4, 2009, and complained plaintiff was making personal phone calls and ignoring his duties while on the phone; that he ignored Betty Winn, the head of the Heschel School, when she confronted him about his phone use; and he was rude and unprofessional, and had problems operating the school's security gate. Bruce Ferreira (Ferreira), defendant's account manager for the Heschel School, forwarded the complaints to Daniel Campbell (Campbell), defendant's co-owner and vice president of human resources, who directed Ferreira to write a warning notice. Ferreira wrote the notice on March 4, 2009. He also confirmed the complaints with the client, Ms. Winn, on March 6, 2009, and talked with plaintiff about paying attention to his job duties and not using the phone for personal calls during business hours.
On March 11, 2009, Ferreira received another complaint about plaintiff's job performance. Guerrero informed Ferreira that plaintiff was again on the phone making personal calls, and he had a bad attitude. Ferreira called Campbell to report the complaint, and it was decided that plaintiff should be sent home because the client was very upset. Plaintiff was directed to meet with Campbell the following day. Ferreira drafted another warning notice.
On the evening of March 11, Field Supervisor Mike Powell (the field supervisor, or Powell) emailed members of defendant's management, including Campbell, to report that plaintiff had complained about racist and discriminatory comments by a Heschel employee.
Plaintiff met with Campbell on March 12. They met again on March 18, and plaintiff was terminated at this meeting.
In support of its summary judgment motion, defendant introduced evidence that client complaints about plaintiff's job performance were the reason for the termination. Campbell made the decision to terminate plaintiff before he learned about plaintiff's complaints of discrimination. Campbell decided to terminate plaintiff on March 11, because plaintiff had been employed for only 13 days, was still in his introductory period, and had already received two client complaints. Because serious concerns about plaintiff's job performance arose during the first weeks of his employment, Campbell decided “ he was not well suited for the job and would likely run into similar problems if he was reassigned to another client rather than let go.” Campbell did not read Powell's email describing plaintiff's complaints of discrimination until after he made the decision to terminate plaintiff. Campbell, as the vice president of human resources, made the company's termination decisions. Although David Rosenberg, defendant's president, may have initially recommended reassigning plaintiff, it was Campbell's job to make the decision, and he believed plaintiff should be terminated. Plaintiff's employment was at will.
Campbell met with plaintiff on March 12 and discussed his performance issues. Plaintiff told Campbell he was on the phone reporting payroll problems and that the gate malfunctioned. Although Campbell had already decided to terminate plaintiff, Campbell agreed to investigate the matters to give plaintiff “closure.” Plaintiff's explanation did not change Campbell's decision to terminate plaintiff because even if true, plaintiff was ignoring his duties when the calls were made. At the March 12 meeting, Campbell learned for the first time that plaintiff complained that Guerrero made racist and inappropriate remarks. Campbell directed Ferreira to investigate the incident. Campbell thereafter investigated plaintiff's explanation for being on the phone and discovered he had used the phone to report a payroll issue. He also discovered the gate had at all times functioned properly, and plaintiff had been trained how to use the gate. Campbell met with plaintiff again on March 18 and terminated his employment due to his performance issues.
Plaintiff disputed the truth of defendant's justification, reasoning defendant initially intended to reassign him to another location after receiving client complaints, but decided to terminate him after he reported discriminatory remarks made by Guerrero. He did not dispute that defendant received complaints from its client about his job performance.
Plaintiff introduced evidence that defendants knew about his protected activity before terminating him. On March 11, 2009, plaintiff reported Guerrero's discriminatory comments to his field supervisor and to Campbell. He also made a written report. A string of emails on the evening of March 11 discussed plaintiff's report of discriminatory comments. At 9:09 p.m. on March 11, Powell emailed defendant's management, David Rosenberg, Steven Lemmer, Ferreira, and Campbell, saying that the Heschel School had made complaints about plaintiff's job performance and that plaintiff told Powell “ Tony Guerrero has been making racial slurs towards officers.”
Powell emailed defendant's management again at 9:30 that evening, relaying that plaintiff told him “he will have to pursue legal action if the work environment he is working in does not change.” Plaintiff told Powell “it would be unfair for him to lose his job under these conditions and would have no alternative but legal action if nothing else can be worked out.” In response to Powell's email, David Rosenberg emailed his recommendation that plaintiff be sent home with pay for the remainder of his shift, and that he go to the office on March 12 for “reassignment.” At 9:54 p.m., Ferreira emailed that he had relieved plaintiff and sent him home. In response, at 9:57 p.m., Campbell requested that Ferreira “have all the info on both incident[s] and we talk about [it] tomorrow.”
Plaintiff did not receive copies of any “employee warning notices” relating to his performance issues until he was terminated. Campbell told him “he would see about relocating” plaintiff at their March 12 meeting, but later terminated him.
With its reply brief, defendant introduced additional evidence, consisting of transcripts from the depositions of plaintiff, David Rosenberg, Campbell, and Guerrero, as well as an application for state unemployment benefits filed by plaintiff between March 11 and March 16, claiming he was “laid off due to lack of work.” Plaintiff orally objected to this evidence at the hearing on the motion, reasoning he did not have “notice and an opportunity to respond.” He also objected to defendant's separate statement filed with its reply brief as an “improper document.” No ruling on these objections appears in the record.
The trial court granted defendant's motion for summary adjudication, concluding that defendant set forth a legitimate, nonretaliatory reason for its termination decision. It overruled plaintiff's objections to declarations submitted by Ferreira and Powell. After entry of judgment, defendant moved to recover its expert witness fees, maintaining it was “entitled, by right, to have allowable costs awarded to it as the prevailing party.” The trial court granted the motion, and defendant was awarded $2,350 incurred as expert witness fees on the basis that expert witness fees are recoverable by a prevailing Fair Employment and Housing Act (Gov.Code, 12900 et seq.; FEHA) defendant even if the action was not “ ‘unreasonable, frivolous, or vexatious.’ ”
1. Summary Adjudication **2. Expert Witness Fees
Plaintiff contends the trial court applied an erroneous legal standard when it determined that expert witness fees may be awarded to a prevailing FEHA defendant without requiring a showing that the plaintiff's claim was frivolous, and that in any event, plaintiff's case was not frivolous. We agree, and therefore...
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