Rosenman v. Christensen, Miller, Fink

• Decision Date: 21 August 2001
• Docket Number: No. B131078.,B131078.
• Citation: 91 Cal.App.4th 859,110 Cal.Rptr.2d 903
• Parties: Shari Cohen ROSENMAN, Plaintiff and Appellant, v. CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL & SHAPIRO et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

110 Cal.Rptr.2d 903

91 Cal.App.4th 859

Shari Cohen ROSENMAN, Plaintiff and Appellant, v. CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL & SHAPIRO et al., Defendants and Respondents.

No. B131078.

Court of Appeal, Second District, Division 7.

August 21, 2001.

Certified for Partial Publication.^*

Benedon & Serlin, Douglas G. Benedon, Woodland Hills, and Gerald M. Serlin, for Plaintiff and Appellant.

Krakow & Kaplan and Marvin E. Krakow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Browne & Woods, Allan Browne, Edward A. Woods and Marcy Railsback, Beverly Hills, for Defendants and Respondents.

JOHNSON, Acting P.J.

This is an employment discrimination case under the Fair Employment and Housing Act. In the unpublished portion of this opinion, we hold the trial court did not commit prejudicial error in admitting certain documents used by respondents to impeach appellant's testimony. Accordingly, we affirm the verdict in favor of respondents. However, in the published portion of the opinion, we reverse the award of attorney fees to respondents, because the trial court failed to find appellant's case was frivolous, unreasonable, or totally without foundation, and because based on the record no such findings reasonably could have been made.

FACTS AND PROCEEDINGS BELOW

Plaintiff and appellant Shari Cohen Rosenman was hired by the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro,¹ which attracts high-profile clients and handles complex litigation, as an associate in the litigation department in 1989. As an associate, Rosenman worked long hours under intense pressure and consistently received favorable performance reviews and bonuses. Her career plan was to become a partner in the Firm, and ultimately to become a judge. In January 1996, Rosenman achieved a long-sought goal when she became a non-equity partner in the Firm. As a non-equity partner Rosenman received an annual base salary of $120,000 plus so-called "special distributions" based on her performance and the Firm's profits.

The same month she became a partner, Rosenman became pregnant with her first child. She notified members of the Firm about her pregnancy between February and March 1996. Early in her pregnancy, Rosenman experienced severe morning sickness, fatigue and back problems. In March 1996, Rosenman's pregnancy-related health issues created a temporary inability to work and sit for long hours. Rosenman testified at trial she verbally requested a reduction in her workload or more help from associate attorneys, but no such reduction or assistance was forthcoming. She ultimately resorted to requesting a reduction in workload in writing, an unusual action given the Firm's culture of avoiding written communications regarding personnel matters.

Rosenman worked in the office throughout her pregnancy until late August when her doctor ordered bed rest. She worked at home for the next two weeks, at which time her daughter was born, five-and-a-half weeks early. In accordance with the Firm's maternity leave policy, Rosenman was given three months off with pay, with the option of taking an unlimited amount of additional time off without pay.

During her maternity leave, Rosenman had a conversation with the Firm's managing partner in which she was given the option of returning to the Firm part-time, although apparently such an option would have required her to give up her partnership.² During this conversation, Rosenman expressed her displeasure at the Firm's failure to pay a special distribution which had been paid to other members of her partnership class.³ She was eventually informed she was not paid the special distributions due to performance problems which had arisen during her pregnancy, including missing the deadline for filing an appellate brief on behalf of one of the Firm's clients.

Based in part on the Firm's failure to pay her the special distributions, Rosenman began looking for a job during her maternity leave, and on January 2, 1997, she resigned from the Firm. In January, she began work as a research director at a legal research network; however, she left the position two to three months later. At the time of trial, she was working part time for a small civil litigation firm, which she considered a step down from the "first tier" practice of the Firm.

Rosenman brought suit against the Firm for pregnancy discrimination and related claims under the Fair Employment and Housing Act ("FEHA"). The Firm's motion for summary judgment was denied and the case proceeded to trial. At trial, Rosenman contended the firm failed to comply with her reasonable requests for accommodation of her pregnancy-related health problems, and testified the Firm's response to her request for a reduced workload was to increase her workload by assigning her twelve new cases to work on. She also contended she was discriminated against because, contrary to the Firm's policy of paying all non-equity partners the same compensation, she was not paid certain "special distributions" received by other non-equity partners. In addition, she contended she was retaliated against for raising concerns about ethical lapses on the part of certain of the Firm's senior partners. Finally, she contended the Firm's conduct surrounding her pregnancy and maternity leave constituted a constructive discharge.

In addition to her own testimony, Rosenman presented the testimony of other current and former Firm lawyers, her husband, and expert witnesses on the subjects of accommodation and economic damages. In addition to testimony by the individual defendants and others, the Firm introduced documents at trial to impeach Rosenman's testimony about her workload and the manner in which non-equity partners were compensated.

The Firm moved for nonsuit at the close of Rosenman's evidence, and the trial court denied the motion. After deliberations, the jury voted 10-2 in favor of the Firm. The Firm moved for an award of attorney fees under FEHA, and the trial court awarded the Firm $150,000. Rosenman timely appeals.

DISCUSSION

I. THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERR IN ADMITTING THE FIRM'S IMPEACHMENT EVIDENCE.^**

II. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY FEES IN FAVOR OF THE FIRM.

Having concluded the judgment in favor of the Firm must stand, we turn to the question whether the trial court abused its discretion in ordering Rosenman to pay the Firm $150,000 in attorney fees. We answer this question in the affirmative.

A. A Successful Defendant Is Entitled to Attorney Fees Under FEHA Only In the Rare Case In Which the Plaintiff's Action Was Frivolous, Unreasonable, or Without Foundation.

In Cummings v. Benco Building Services, we explained the standards to be applied in determining the propriety of an attorney fees award under the employment discrimination statutes: "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 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 antidiscrimination 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. . . . [Citations.] A trial court's award of attorney fees and costs under the section is subject to an abuse of discretion standard. [Citations.]"²⁴

We further noted "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. EEOC (1978) 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648."²⁵ In Christiansburg, the Supreme Court held a prevailing plaintiff in an antidiscrimination case "should ordinarily recover an attorney fee unless special circumstances would render such an award unjust. [Citation.]"²⁶ However, it declined to use a similar standard in determining whether to award attorney fees to a prevailing defendant, because "there are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant. [¶] First, . . . the plaintiff is the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.' [Citation.] Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law . . . . `these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.' [Citation.] A successful defendant seeking counsel fees . . . must rely on quite different equitable considerations."²⁷ It cautioned, however, "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."²⁸

The Christiansburg court concluded "a district court may in its discretion award attorney's fees to a prevailing defendant in ...