Cummings v. Benco Building Services

Decision Date23 December 1992
Docket NumberNo. B062075,B062075
Citation15 Cal.Rptr.2d 53,11 Cal.App.4th 1383
CourtCalifornia Court of Appeals Court of Appeals
Parties, 66 Fair Empl.Prac.Cas. (BNA) 856 Channie CUMMINGS, Plaintiff and Appellant, v. BENCO BUILDING SERVICES, a corporation; JMB Property Management and Realty Company, a corporation; Dennis Kielgass, an individual; Joe Enesco, an individual; and Does 1 through 20 inclusive, Defendants and Respondents.

Allred, Maroko, Goldberg & Ribakoff and Alan P. Ribakoff, Los Angeles, for plaintiff and appellant.

Pettit & Martin and Thomas P. Burke, Christopher A. Burrows and Daniel Weisberg, Los Angeles, for defendants and respondents.

JOHNSON, Associate Justice.

Plaintiff appeals from an order of the trial court awarding $63,359.45 in attorney fees and costs to defendant as the prevailing party in an action for age discrimination. We find the trial court abused its discretion in making an award under the circumstances of this case and reverse.


Appellant, Channie Cummings, is a 69 year old Black woman who was the building maintenance supervisor at a 500,000 square-foot office building in Century City. She had worked at that building since it was built and was intimately familiar with the building and its tenants. The building management company and many tenants knew appellant and were very fond of her. Many of the tenants dealt directly with appellant on various matters and some even had her home telephone number.

When defendant, Benco Building Services (Benco), was awarded the contract to provide cleaning services at the building, Benco retained appellant as supervisor of the cleaning staff at the urging of the owner of the building, JMB Property Management and Realty Company (JMB). Appellant was 63 years old at the time.

Starting in late 1987, Benco received complaints from JMB concerning the janitorial service at the building. The complaints persisted into 1988 indicating appellant was unable to properly supervise her cleaning crews.

In early 1989, appellant was terminated. In her exit interview, Douglas Hardin, president of Benco, told appellant he had discussed the situation with two officials of JMB and they decided she was too old and they were retiring her. Appellant's position was later filled with a younger male employee.

Appellant filed a complaint against Benco alleging age and sex discrimination in violation of the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.). The second and third causes of action were asserted against JMB and two of its officials. After reaching a settlement agreement with JMB, appellant voluntarily dismissed her causes of action against the JMB employees. Appellant later withdrew her cause of action for sex discrimination, leaving only her cause of action for age discrimination against Benco.

Benco filed a motion for summary judgment on the age discrimination claim which was granted by the trial court. This decision was separately appealed. Benco then filed a motion for statutory attorney fees and costs as the prevailing party in the action. Appellant filed a motion to tax costs and an opposition to Benco's request for fees and costs claiming Benco was not entitled to an award because her complaint was neither frivolous, unreasonable nor groundless. The trial court denied appellant's motion to tax costs and awarded Benco $60,318.50 in attorney fees and $3,049.95 in costs.

In the interim, the summary judgment in favor of Benco on the age discrimination claim was affirmed by a divided panel of Division Five of this district in a partially published opinion filed October 26, 1992 (Cummings v. Benco Building Services (Cal.App.) [Reporter's Note: Opinion (B059754) deleted upon direction of Supreme Court by order dated January 14, 1993]). 1

The present appeal concerns the propriety of the award of attorney fees and costs to Benco as the prevailing defendant in an age discrimination case.


Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ.Proc., §§ 1021, 1033.5(a)(10)(B).) Government Code section 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under the California Fair Employment and Housing Act (FEHA). That section 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."

The language, purpose and intent of California and federal anti-discrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under Title VII of the federal Civil Rights Act, 42 United States Code section 2000e et seq., and under the federal Age Discrimination in Employment Act (ADEA), 29 United States Code section 621 et seq. (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399-1400, 245 Cal.Rptr. 606; Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1343-1344, 245 Cal.Rptr. 576.) A trial court's award of attorney fees and costs under this section is subject to an abuse of discretion standard. (National Organization for Women v. Bank of California (9th Cir.1982) 680 F.2d 1291, 1293; Stephens v. Coldwell Banker Commercial Group, Inc., supra, 199 Cal.App.3d at pp. 1405-1406, 245 Cal.Rptr. 606.)

The standard a trial court must use in exercising its discretion in awarding fees and costs to a prevailing defendant was set forth in the Supreme Court's decision in Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648. In that decision the Court reaffirmed its prior holding that a plaintiff who brings an anti-discrimination suit does so in the role of a private attorney general to vindicate "a policy that Congress considered of the highest priority". (Id. at p. 416, 98 S.Ct. at 698.) The Court explained the purpose behind the fee provision was to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance. (Id. at p. 418, 98 S.Ct. at 698.) Thus, a prevailing plaintiff " 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' " (Id. at pp. 416-417, citing Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263.)

The Court pointed out these equitable considerations were entirely absent, however, in the case of a prevailing defendant. Thus, the Court found the standard for awarding prevailing defendants attorney fees and costs should be entirely different. The standard ultimately adopted by the Court, and supported by the legislative history, directed "such awards should be permitted 'not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.' " (Christiansburg Garment Co. v. E.E.O.C., supra, 434 U.S. at p. 421, 98 S.Ct. at p. 700, citing Carrion v. Yeshiva University (2d Cir.1976) 535 F.2d 722, 727.)

The Court further explained this standard stating: "the term 'meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term 'vexatious' in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.

"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....

"To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." (434 U.S. at pp. 421-422, 98 S.Ct. at pp. 700-701.)

The record does not reflect the trial court made the necessary findings concerning the merits of appellant's age discrimination claim. The absence of findings, however, is not fatal to our review. A review of the record and subsequent events provides considerable proof appellant's claim of age discrimination was neither frivolous, unreasonable nor groundless. We consequently find the trial court abused its discretion in awarding costs and fees to Benco and reverse the award.

II. THE...

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