Bond v. Pulsar Video Productions

Decision Date07 November 1996
Docket NumberNo. C021443,C021443
Citation50 Cal.App.4th 918,57 Cal.Rptr.2d 917
CourtCalifornia Court of Appeals Court of Appeals
Parties, 73 Fair Empl.Prac.Cas. (BNA) 867, 96 Cal. Daily Op. Serv. 8165, 96 Daily Journal D.A.R. 13,505 Michael L. BOND, Plaintiff and Appellant, v. PULSAR VIDEO PRODUCTIONS et al., Defendants and Respondents.

Seitzinger & Wilkens and Kent B. Seitzinger, Roseville, for Defendants and Respondents.

RAYE, Associate Justice.

Plaintiff Michael Bond filed suit against his former employer defendant Pulsar Video Productions (Pulsar) alleging numerous causes of action, including racial discrimination. A jury found in favor of Pulsar on the discrimination claim, and Pulsar sought attorney fees. The court awarded Pulsar $22,500 in attorney fees. Bond appeals arguing the court erred in awarding Pulsar attorney fees, applied the wrong legal standard and

failed to make the required findings in support of the award. We shall affirm the judgment.


Bond brought suit against Pulsar alleging employment discrimination under the California Fair Employment and Housing Act (FEHA), breach of contract and various related common law torts. Pulsar brought a demurrer and motion to strike, which the court denied. Following arbitration, the case was returned to the civil active list. 1

Pulsar moved for summary judgment on all causes of action. In opposing Pulsar's motion for summary judgment, Bond contended Pulsar's owner, an African-American, had demanded that Bond represent himself while on business as an African-American. Bond, who is of mixed racial origins, considers himself Native American. Pulsar denied making any such demands. The court denied Pulsar's motion.

A jury trial followed; no transcript of the trial is included in the record on appeal. The jury found in favor of Bond on the breach of contract claim, and awarded Bond $1,764.30. The jury found for Pulsar on the discrimination claim. The court earlier granted Pulsar's motion to dismiss the remaining causes of action.

Pulsar brought a motion for attorney fees pursuant to Government Code section 12965 and Code of Civil Procedure section 128.5. Following oral argument, the court granted the motion. The court noted the case went to trial on only two theories: breach of contract and racial discrimination/retaliatory discharge. The jury unanimously found for Pulsar on the discrimination cause of action. Although the jury awarded Bond $1,764.30 on his contract cause of action, the award was less than Pulsar's earlier offer to compromise. Therefore, under Code of Civil Procedure section 998, the court found Pulsar the prevailing party on the contract claim.

The court provided its rationale for awarding attorney fees: "The Court found that plaintiff's case was frivolous, vexatious and without merit and it was impossible for defendants to extricate themselves even from the minor contract claim which was evidenced by plaintiff's failure and refusal to accept defendants' Code of Civil Procedure § 998 offer which was almost three times the amount of the jury verdict. On that basis, the Court awarded defendants their attorney's fees and costs...."

Bond brought a motion for reconsideration. Following oral argument, the court denied the motion. The court also denied Pulsar's motion for sanctions. Bond filed a timely notice of appeal.


Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ.Proc. §§ 1021, 1033.5, subd. (a)(10)(B).) Government Code section 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under FEHA. Section 12965 provides, in pertinent part, "In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency or a public official, acting in an official capacity." A trial court's award of attorney fees and costs under this section is subject to an abuse of discretion standard. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387, 15 Cal.Rptr.2d 53.)

Due to the symmetry between California and federal antidiscrimination statutes, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under the federal Civil Rights Act. (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399-1400, 245 Cal.Rptr. 606.) The Supreme Court in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 [98 S.Ct. 694, 54 L.Ed. 2d 648] set forth the standard trial courts must use in exercising discretion in awarding attorney The Christiansburg court defined meritless as groundless or without foundation, rather than simply the fact that the plaintiff ultimately lost. The court also noted "vexatious" does not imply that plaintiff's subjective bad faith is a necessary prerequisite to an award of attorney fees to defendant. (Id. at p. 421, 98 S.Ct. at p. 700.) The court concluded 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." (Ibid.)

                fees to a prevailing defendant.  A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."  (Id. at pp. 416-17, 98 S.Ct. at p. 698, citation omitted.)   However, a defendant should be awarded attorney fees "not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, [50 Cal.App.4th 922] frivolous, meritless or vexatious."  (Id. at p. 421, 98 S.Ct. at p. 700, citation omitted.)

The court also sounded a cautionary note: "In applying these criteria, it is important that a district 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. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit." (Christiansburg, supra, 434 U.S. at pp. 421-422, 98 S.Ct. at pp. 700-01.)

In the present case, Bond argues the award of attorney fees to Pulsar was unjustified, unsupported by fact and contrary to law. Bond contends the trial court awarded attorney fees purely because the jury found against him. The survival of his discrimination cause of action after Pulsar's summary judgment motion, Bond contends, proves the claim was not unreasonable or frivolous. In support, Bond relies on Cummings, supra, 11 Cal.App.4th 1383, 15 Cal.Rptr.2d 53. We find Bond's reliance unjustified.

In Cummings, plaintiff brought an age discrimination action. The trial court granted defendant employer's motion for summary judgment. This decision was separately appealed and affirmed by a divided appellate court. The trial court later awarded defendant attorney fees pursuant to Government Code section 12965. (Cummings, supra, 11 Cal.App.4th at pp. 1385-1386, 15 Cal.Rptr.2d 53.) The appellate court reversed.

The court reiterated the standard enunciated in Christiansburg, supra, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 for awarding defendant attorney fees. (Id. [50 Cal.App.4th 923] at pp. 1387-1388, 15 Cal.Rptr.2d 53.) The court found the record provided considerable proof that plaintiff's claim was neither frivolous, unreasonable nor groundless. (Id. at p. 1388, 15 Cal.Rptr.2d 53.) The court noted the dissenting justice in the summary judgment appeal found direct evidence that defendant terminated plaintiff because of her age. In conclusion, the court stated: "In sum, the majority recognized appellant presented some evidence of age discrimination. The dissent would have found that same evidence was substantial enough to warrant a jury trial. Based on the views expressed by our respected colleagues, it becomes apparent reasonable minds may differ as to the strength of appellant's case but that it would be unreasonable to conclude appellant's action for age discrimination was frivolous, unreasonable or without foundation where both the majority and the dissent found her claim to have some basis in fact." (Id. at p. 1389, 15 Cal.Rptr.2d 53.)

In Cummings, the appellate court reviewed the record and found attorney fees inappropriate for defendant's successful summary judgment motion. Here, we consider not a successful summary judgment motion, but a full-fledged jury trial. Bond appears to argue since his causes of action survived Pulsar's motion for summary judgment, his discrimination claim could not be frivolous Here, the trial court, following a jury trial, found Bond's discrimination claim "frivolous, vexatious and without merit." However, the parties have failed to provide a transcript of the jury trial. In a judgment roll appeal based on a clerk's transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have...

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