Hon v. Marshall

Decision Date10 March 1997
Docket NumberNo. B088602,B088602
Citation62 Cal.Rptr.2d 11,53 Cal.App.4th 470
Parties, 73 Fair Empl.Prac.Cas. (BNA) 417, 97 Cal. Daily Op. Serv. 1840, 97 Daily Journal D.A.R. 3455 Juanita HON, Plaintiff and Appellant, v. John MARSHALL, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

John D. Harwell, Manhattan Beach, for Defendants and Respondents.

BRANDLIN *, Associate Justice.

Plaintiff Juanita Hon appeals from that portion of the judgment awarding attorney fees in the amount of $12,000 to defendants John Marshall, M.D., and Michael Barry as the prevailing parties under Government Code section 12965 (section 12965). She contends the trial court erred in making the award. We agree and remand for further proceedings.


The underlying facts are uncontroverted. On May 28, 1993, appellant filed suit against The complaint contained the usual allegations of agency and ratification of wrongdoing on the part of all the defendants and further charged that they had "deliberately and purposefully created a hostile and harassing environment for [appellant] to work in and continued to harass [her] with abusive, intimidating and humiliating remarks and conduct, resulting in [her] termination."

her employer, Lifeblood Trust, which had terminated her employment on February 2, 1993, and respondents, who, according to appellant's complaint, were employed as administrators by Lifeblood Trust and also served as its chief executive officers. Appellant's complaint set forth causes of action for breach of implied contract, breach of the covenant of good faith and fair dealing, violation of Government Code section 12940 (the Fair Employment and Housing Act (FEHA)), wrongful interference with [53 Cal.App.4th 473] employment contract, intentional infliction of emotional distress and negligent infliction of emotional distress. Respondents were named in all causes of action except the first.

More specifically, appellant alleged that respondent Barry, for whom she acted as administrative manager, had ordered her to sign a document fraudulently acknowledging to the Mercedes-Benz Credit Corporation that his wife was an employee of Lifeblood Trust so she could qualify for an automobile loan. When appellant refused, respondent Barry faxed the fraudulent employment verification form to Mercedes-Benz Credit Corporation on appellant's behalf. Appellant immediately notified Mercedes-Benz Credit Corporation she had not prepared the document. Her employment was terminated four days later.

In addition to the foregoing, appellant claimed respondent Barry had been "persistently verbally abusive to [her] by making repeated sexually suggestive derogatory comments to [her], and in [her] presence" and that he had "repeatedly harassed [her] and acted cruelly and with disregard to [her] religious beliefs by making repeated derogatory comments regarding [her] Buddhist faith." She likewise asserted she had "filed a complaint with the [federal] Equal Employment Opportunity Commission [EEOC] on February 22, 1993, alleging that the acts described in this [c]omplaint established a violation of her rights" and that she had "exhausted her administrative remedy with the [EEOC]." No mention was made of the California Department of Fair Employment and Housing (DFEH).

On June 9, 1994, respondents moved for summary judgment or, alternatively, for summary adjudication of issues. Insofar as is relevant here, they urged that appellant's own deposition testimony of February 22, 1994, as well as the records of the DFEH and EEOC, established that appellant had never filed an administrative charge of discrimination or harassment, based upon gender or religion, with either agency or received a right to sue letter, thereby barring as a matter of law her third cause of action under the FEHA.

The evidence offered by respondents in support of their position disclosed appellant had indeed conceded in her deposition that she had never filed a discrimination or harassment complaint with the DFEH or the EEOC during the period of her employment, though she maintained she had attempted to do so subsequently, and "they wouldn't accept it." She explained that she had reported being terminated after refusing to be associated with "perceived fraudulent activity" and was told the DFEH and EEOC do not handle such matters. They advised her she "would have to get an attorney." For reasons appellant did not make clear, she had said nothing about her belief that she had been subjected to discrimination or harassment based upon her gender or religion. 1

The trial court granted respondents' motion for summary judgment on all causes of action directed against them. It concluded appellant's FEHA cause of action was barred by her failure to exhaust her administrative remedies. 2 Respondents thereafter moved for an award of attorney fees pursuant to section 12965, arguing that appellant's "claims of discrimination and harassment were vexatious and frivolous" because she had never complained to the DFEH or the EEOC and admitted respondents had never made explicit sexual remarks to her. 3 They received $12,000 for their defense of appellant's FEHA cause of action. When appellant subsequently sought reconsideration of the award, she was assessed sanctions in the amount of $1,200. This appeal ensued and, as previously indicated, is limited solely to the propriety of the $12,000 attorney fee award. Appellant has not challenged the trial court's summary judgment ruling or its imposition of sanctions.


It is, of course, well settled "that in the context of the FEHA, exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts...." (Okoli v. Lockheed Technical Operations, Co. (1995) 36 Cal.App.4th 1607, 1613, 43 Cal.Rptr.2d 57; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724, 35 Cal.Rptr.2d 181; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890, 220 Cal.Rptr. 684.) This case, however, raises a narrow question which is apparently one of first impression in this state, whether a defendant who is granted summary judgment because of such a jurisdictional defect qualifies as a "prevailing party" entitled to an attorney fee award under section 12965. Subdivision (b) of that provision of the FEHA reads 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."

Because the antidiscrimination objectives and relevant wording of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.; hereafter "Title VII"), the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) and the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.) are similar to those of the FEHA, California courts often rely on federal decisions interpreting those statutes for assistance in construing analogous provisions of the FEHA. (See, e.g., Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921-922, 57 Cal.Rptr.2d 917; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66, 53 Cal.Rptr.2d 741; Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386, 15 Cal.Rptr.2d 53; 8 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 759, p. 256.)

By way of example, Division Seven of this court recently looked to the standard for awarding attorney fees to prevailing defendants in Title VII actions to aid it in deciding There is a disinclination on the part of the lower federal courts to award a defendant attorney fees where the plaintiff's action has been dismissed for failing to comply with the jurisdictional prerequisites of a Title VII action, though the cases have generally included little or no discussion of the rationale for the courts' decisions. (See, e.g., Nilsen v. City of Moss Point, Mississippi (5th Cir.1980) 621 F.2d 117; Moses v. Phelps Dodge Corp. (D.Ariz.1993) 826 F.Supp. 1234; Ruffin v. ITT Continental Baking Co. (N.D.Miss.1986) 636 F.Supp. 857; Reaves v. Westinghouse Elec. Corp. (E.D.Wis.1977) 430 F.Supp. 623.) By way of illustration, the federal district court in Ruffin v. ITT Continental Baking Co., supra, 636 F.Supp. 857 stated only, "Because the dismissal of plaintiff's Title VII claim is a consequence of the 90-day limitations bar and not a consequence of a finding that plaintiff failed to state a claim upon which relief could be granted or that the plaintiff failed to raise an arguable issue, the court finds that an award of costs is inappropriate in this case. [Citations.]" (Id. at p. 859.)

                whether an award of attorney fees and costs to the defendant in an age discrimination case under the FEHA constituted an abuse of discretion.  (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at pp. 1386-1390, 15 Cal.Rptr.2d 53 [defendant who succeeds on summary judgment motion cannot be presumed to be prevailing party under § 12965];  see also Bond v. Pulsar Video Productions, supra, 50 Cal.App.4th 918, 57 Cal.Rptr.2d 917 [defendant's award of attorney fees under § 12965 following favorable jury [53 Cal.App.4th 476] verdict on plaintiff's discrimination claim affirmed].)  The standard applicable in a Title VII setting was articulated by the United States Supreme Court in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648.   The court there observed that in contrast to a prevailing plaintiff, who "ordinarily is to be awarded attorney's fees in all but special circumstances" (id. at p. 417, 98 S.Ct. at 698), a successful defendant should be permitted such an award only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith."  (Id. at

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