Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County Super. Ct. No. 04CC04737, W. Michael Hayes, Judge.
Stanton T. Matthews & Associates and Sid Greenbaum for Plaintiffs and Appellants.
Breon & Shaeffer, George W. Shaeffer, Jr., and Angela C. Karchmer for Defendants and Appellants.
OPINION
O’LEARY, ACTING P. J.
In this discrimination case, Tyronne Borelli, Rebecca Bruno, George Reta, and Sandra Katz (sometimes referred to collectively as the Plaintiffs) appeal from a judgment in favor of their employer, the Santa Ana Unified School District after the District’s motion for summary judgment was granted. The Plaintiffs contended they were harassed and discriminated against by the District and several individual defendants within the administration after they demanded the District investigate a threatening voice mail message left for an administrator at the District’s Santa Ana Valley High School (“Valley”). Their complaint contained causes of action for discrimination in violation of the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.). Each of the Plaintiffs also alleged a separate cause of action titled “hostile work environment” alleging the actions of the individual defendants constituted harassment “so severe and pervasive that it altered the conditions of [their] employment and created an abusive working environment.” Summary judgment was granted as to all causes of action because the Plaintiffs failed to exhaust their administrative remedies as required under FEHA by timely filing complaints with the Department of Fair Employment and Housing (the DFEH). On appeal, the Plaintiffs contend they should have been permitted to amend their complaint to recast their hostile workplace harassment cause of action as one for a common law wrongful discharge or demotion. Reta additionally contends there was a triable issue of fact as to whether he timely filed a complaint with the DFEH. We find no merit to their claims and affirm the judgment.
The defendants in this action include the Santa Ana Unified School District (the District) and several individuals, Al Mijares, Winston Best, Tony Espinosa, Gene Clough, and Lynn Kramer. As to the Plaintiffs on this appeal, summary judgment was granted as to all the defendants. On appeal, the Plaintiffs challenge only the ruling as to the District.
All statutory references are to the Government Code, unless otherwise indicated.
The District separately appeals from a postjudgment order denying its motion for attorney fees against Borelli. It contends the court abused its discretion denying fees because Borelli’s claims were frivolous. We find no abuse of discretion and affirm the order.
I
FACTS AND PROCEDURE
The Complaint
The Plaintiffs’ original complaint was filed in April 2004. The operative complaint is their third amended complaint filed January 13, 2005. Reta, Jan Stewart, and Deborah Ferber, were counselors at the Valley. Lynne Kramer was coordinator of Valley’s “Academy” program. Borelli, Bruno, and Katz were teachers at Valley and each was a chairperson in his or her respective department.
Stewart and Feber were also plaintiffs in this action, but are not parties to this appeal.
The high school’s practice was to assign uneven student loads to the academic counselors, with counselors in the “Academy” program having about 350 students, but the other counselors including Reta, Stewart, and Ferber carrying up to 750 students each. Reta’s, Stewart’s, and Ferber’s requests that all counselors’ caseloads be equalized were not received favorably by Valley’s principal, Tony Espinosa, and others at the school and within the administration.
On January 17, 2003, what apparently was her last day working at Valley, vice-principal Maria Aeberhard received a voice mail message in which the caller said, “‘we finally got you, you’re going and we’re still here. Next comes the Jew girl, nigger lover[, ] and the gay guy . . . .’”
Stewart (who is Jewish), Ferber (who was affiliated with the Black Student Union at Valley), and Reta (who “is, or is perceived to be, gay”), Borelli, Katz, and Bruno, all listened to the voice mail and believed Kramer was the caller, and they conveyed their beliefs to Espinosa. Reta, Borelli, Bruno, and Katz demanded the District conduct an investigation “and take steps to stop any further discrimination” against Reta, Stewart, and Ferber.
At a subsequent faculty meeting, the District’s Superintendent, Al Mijares, announced the voice message was a crank call from outside and everyone should forget about it. The District’s Director of Human Resources, Winston Best, said “he would ‘get the people who are accusing an esteemed member of this faculty of having left the hate message.’” The Plaintiffs felt the comments “had a chilling effect upon those people who might have been able to assist with the investigation.”
Borelli prepared a speech he intended to give at a faculty meeting “condemning the hate message and asking all faculty to cooperate in assuring that all faculty and students would be protected from discrimination, ” but Best warned him “there would be a negative impact on his career if he gave that speech.” Best told Borelli if he continued to support Ferber, Stewart, and Reta, he would be transferred to another school. Borelli, Bruno, and Katz were subsequently stripped of their assignments as department chairs “as retaliation for [their] insistence that the rights of Ferber, Reta, and Stewart” be respected.
Espinosa tried to get Borelli, Bruno, and Katz to make negative comments about Ferber, Reta, and Stewart, but they would not, and Espinosa “indicated his displeasure” with them. Espinosa tried to get two students to say Borelli had behaved unprofessionally, but they would not.
Sometime after the voice mail incident, Reta found a napkin with red dots and balloons at his workspace, which he perceived as “symbolic of his sexual orientation[.]” Reta was later transferred to another school. At an awards ceremony in June 2003, Stewart, Ferber, Bruno, and Borelli were seated together. Espinosa walked by and glared at them.
The complaint’s 14 causes of action against the District and the individual defendants included the following causes of action relevant to this appeal: (1) Reta’s cause of action (3d) for discrimination in violation of the FEHA based upon his perceived sexual orientation; (2) Borelli, Katz, and Bruno’s causes of action (4th) for discrimination in violation of sections 12940, subdivision (h), and 12926, subdivision (m), of the FEHA, alleging they were discriminated against for having demanded that Stewart’s, Reta’s, and Ferber’s rights to be free from discrimination and harassment be protected; (3) Reta’s, Borelli’s, Katz’s, and Bruno’s individual causes of action (7th, 8th, 9th & 10th) for “hostile work environment” in which each alleged the actions of the individual defendants constituted harassment that “was so severe and pervasive that it altered the conditions of [their] employment and created an abusive working environment[.]”
The Summary Judgment Motion
The District filed motions for summary judgment on each of the Plaintiffs’ causes of action because they failed to exhaust their administrative remedies and lacked evidence to establish all the elements of their causes of action. In its separate statement, the District explained each of the Plaintiffs had failed to file a complaint with the DFEH and obtain a right-to-sue letter, before filing the original complaint on April 8, 2004. The evidence offered in support included each of the Plaintiffs’ (including Reta’s) responses to interrogatories in which they denied having filed “a claim, complaint, or charge with any governmental agency that involved any of the material allegations made in the [pleadings.]” Additionally, the District provided certified records of the DFEH from each of the Plaintiffs’ files, including the DFEH complaints filed by each of the plaintiffs. Reta’s complaint was filed June 7, 2005; Borelli’s complaint was filed May 12, 2005; Bruno’s complaint was filed July 15, 2004; and Katz’s complaint was filed June 23, 2004.
In support of its substantive arguments on the elements of the causes of action, the District put forth the following undisputed material facts. Mijares testified at his deposition that following the police investigation of the voice mail message, the district attorney advised the District’s chief of police the caller could not be identified and it was a “crank call.” Mijares did not believe there was anything more the District could do to investigate the call.
Reta admitted in his deposition and responses to interrogatories that none of the named individual defendants (Best, Mijares, Espinosa, and Kramer) ever made disparaging or derogatory comments about his sexual orientation, and his only allegation of harassment was his claim the District failed to adequately investigate the origins of the voice mail message. Borelli’s claimed harassment was that Espinosa (and Mijares) wanted Borelli transferred, Espinosa argued with Borelli about class scheduling, and removed him as department chair. Bruno’s only claimed act of harassment was that Espinosa removed her as department chair, and she felt the change in her duties was due to her support of the counselors she believed to be the target of the voice mail. Katz’s only claimed acts of harassment were that Espinosa removed her as department chair and once yelled at her.
The Plaintiffs’ Opposition
In their opposition to the District’s summary judgment motion, Borelli, Bruno, and Katz conceded they had not timely filed DFEH complaints and could not pursue the complaint’s fourth cause of action for violation of the FEHA. Reta, however, claimed he had timely filed a DFEH complaint. Reta submitted his declaration stating that in March 2003, he went to a DFEH office and “filled out a complaint” after which he was told by the DFEH it would issue a right-to-sue letter, but he never received one.
All the Plaintiffs contended the hostile work environment causes of action did not require a DFEH complaint be filed because the causes of action were rooted in common law rights. They argued they had each been subjected to “hostility in the workplace as retaliation for speaking up against discrimination[.]” The harassment included being removed from their department chairs. They argued the harassment they suffered was so severe and pervasive as to alter the conditions of their employment. The opposition stated in passing, if they had “inartfully stated their cause of action they request leave to amend to conform to proof . . . .”
The Plaintiffs offered the following “undisputed” facts in support of their hostile work environment causes of action. Espinosa tried to elicit unfavorable comments from Katz and Bruno about Reta’s job performance. Once, a napkin with red dots on it was left at Reta’s desk, which he believed to be symbolic of his sexual orientation. Borelli was told to not give a speech to the District’s Board of Trustees (the Board) about the voice mail message, was told if he did not stop supporting Ferber, Reta, and Stewart, he would be transferred to another school, and he was removed from his department chair position and “removed from his classroom.” Bruno was once glared at by Espinosa, pressured by him to make negative comments about Ferber, Reta, and Stewart, and removed as department chair. Katz was once yelled at by Espinosa, pressured by him to make negative comments about Ferber, Reta, and Stewart, her reasonable requests about her teaching duties were turned down, and she was removed from her department chair position.
The Plaintiffs also offered deposition testimony from a member of the Board, John Palacio. Palacio testified there was a hostile environment at Valley (and within the District), and he believed the Plaintiffs suffered retaliation for having demanded a full investigation of the voice mail message. Palacio believed Mijares “exhibited favoritism towards . . . Espinosa[.]”
The Hearing and Ruling
At oral argument on the District’s summary judgment motion, the Plaintiffs argued for the first time the hostile work environment causes of action should be viewed as common law wrongful termination causes of action. Counsel argued the facts were the same, it was just a new legal theory being asserted. The adverse job action upon which the wrongful termination was based was the loss of the Plaintiffs’ department chair positions.
The court granted the District’s summary judgment motion. It found Reta’s declaration insufficient to create a material issue of fact as to whether he timely filed a DFEH complaint. Reta stated only that he “filled out” a complaint, not that he filed a complaint, and he had no independent evidence he had in fact filed a complaint.
Bruno and Reta filed a motion for reconsideration on the grounds they had new “facts” concerning the filing of DFEH complaints. To support his claim he had timely filed a DFEH complaint, Reta submitted a copy of a precomplaint questionnaire he filled out on March 21, 2003, indicating an interview date was set for March 25, 2003. Bruno (who before conceded she had not timely filed a DFEH complaint) now claimed she had in fact filed a DFEH complaint before filing her lawsuit. She declared that in June 2003, she requested an interview appointment and on September 9, 2003, she went to the DFEH and “filled out and filed a complaint” against the District. In support of her new claim, Bruno attached a letter from the DFEH confirming her September 9, 2003, appointment time, and the business card of the person with whom she met on that date. The motion for reconsideration was denied. The court entered judgment for the District against the Plaintiffs.
The Plaintiffs filed a motion for new trial. They argued the court should have permitted them to amend the complaint to restate their hostile work environment causes of action as common law wrongful discharge causes of action based on the same facts alleged in the complaint and put forth in the summary judgment motion. Borelli, Bruno, and Katz, asserted they suffered a “demotion” (i.e., loss of department chair positions), in retaliation for speaking out against discrimination against Ferber, Reta, and Stewart. Reta claimed he had suffered discrimination as a form of discharge or discipline in retaliation for speaking out against discrimination.
In its opposition to the new trial motion, the District provided Borelli’s deposition testimony that he knew in October 2002 (before the voice mail incident), that Espinosa intended to remove him from his department chair position at the end of the school year. The motion for new trial was denied.
II
STANDARD OF REVIEW
Summary judgment is proper when “all the papers submitted show that there is no triable issue as to any material fact” such that “the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review an order granting summary judgment de novo: “‘In evaluating the correctness of a ruling under [Code of Civil Procedure] section 437c, we must independently review the record before the trial court. Because the grant or denial of a motion under [Code of Civil Procedure] section 437c involves pure questions of law, we are required to reassess the legal significance and effect of the papers presented by the parties in connection with the motion. [Citation.]’” (Ranchwood Communities Limited Partnership v. Jim Beat Construction Co. (1996) 49 Cal.App.4th 1397, 1408.) On appeal, we apply the same rules the trial court applied in deciding the motion for summary judgment. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1303 (Colores).)
A defendant who moves for summary judgment must establish he has “‘met’ his ‘burden of showing that a cause of action . . . cannot be established[.]’” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) “[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fns. omitted.)
III
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
“Under the FEHA, [an] employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [DFEH] and must obtain from the [DFEH] a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. [Citations.]” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492; see §§ 12960, 12965.)
There is no triable issue of fact concerning whether the Plaintiffs filed a DFEH complaint and received a right-to-sue letter prior to filing their lawsuit in April 2004. The District presented verified records from the DFEH showing the DFEH complaints were not filed until after the litigation commenced. Reta’s DFEH complaint was filed June 7, 2005; Borelli’s DFEH complaint was filed May 12, 2005; Bruno’s DFEH complaint was filed July 15, 2004; and Katz’s DFEH complaint was filed June 23, 2004.
Reta alone contends on appeal he demonstrated a triable issue as to whether he timely filed a DFEH complaint. The only evidence he offered in opposition to the summary judgment motion was his declaration stating that in March 2003, he went to a DFEH office and “filled out” a complaint. He did not state he “filed” a complaint.
Reta does not argue the trial court erred by denying his motion for reconsideration in which he offered additional documentary support for his position. But, even were we to consider the additional evidence, the showing was still insufficient to overcome the District’s evidence Reta did not file his DFEH complaint until June 2005. The additional evidence Reta provided was a copy of a precomplaint questionnaire he filled out in March 2003, not a filed complaint and right-to-sue letter. Reta’s evidentiary showing simply would not have allowed a reasonable trier of fact to find in his favor on this issue. (Aguilar, supra, 25 Cal.4th at p. 850, fns. omitted.)
Because no DFEH complaint was filed before the Plaintiffs’ commenced this action, the trial court properly granted summary judgment as to the third (Reta) and fourth (Borelli, Katz, and Bruno) causes of action for discrimination in violation of the FEHA. (The Plaintiffs concede the 4th cause of action was barred.)
The Plaintiffs’ causes of action for hostile work environment harassment (the complaint’s 7th through 10th causes of action), as pleaded, were also subject to the administrative remedy and the court properly granted summary judgment on those causes of action as well. The Plaintiffs argued below their hostile work environment causes of action were rooted in a “common law right” to be free from discrimination—contending they were harassed in the workplace in retaliation for speaking out against discrimination, they do not renew that argument on appeal. In Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 118, a sexual harassment case, this court held the policy against harassment “is enshrined in the FEHA[, ]” there is no common law cause of action for harassment, and “[b]ecause the cause of action for sexual harassment is a creature of statute, plaintiff must comply with the exhaustion requirements. [Citation.]” The reasoning of Medix is equally applicable to other types of harassment. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2006) ¶ 10:2, p. 10-1 [“[h]arassment is unlawful only if based on one of the characteristics protected by federal or state anti-discrimination laws”].)
IV
COMMON LAW WRONGFUL DISCHARGE
Having concluded the trial court properly granted summary judgment on all causes of action concerning the Plaintiffs due to their failure to exhaust their administrative remedies under the FEHA, we turn to the real crux of their appeal: that the court should have granted them leave to amend their complaint to state a common law wrongful discharge cause of action, for which there was no exhaustion requirement. (Medix, supra, 97 Cal.App.4th at pp. 118-119.) We find no error.
Preliminarily, we note the Plaintiffs never filed a motion to amend their complaint. In their opposing papers, they included one sentence imploring the court that if they had “inartfully stated their cause of action they request leave to amend to conform to proof . . . .” At oral argument, the Plaintiffs first raised the possibility of a wrongful termination cause of action, arguing the court should interpret their hostile workplace harassment causes of action as common law wrongful discharge causes of action because they are based on the same facts. This simply does not suffice as a motion to amend the complaint.
To the extent the Plaintiffs’ vague assertions below can be construed as having requested leave to amend their complaint, we cannot say the court erred in denying that request. The complaint serves to identify and frame the issues in the case. (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.) A plaintiff may not successfully defend against a summary judgment motion on a theory that was not pled. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) In order to assert a new theory, the complaint must be amended before the hearing on the motion for summary judgment. (See Sweat v. Hollister (1995) 37 Cal.App.4th 603, 607, disapproved on other grounds in Santisas v. Goodin (1998) 17 Cal.4th 599, 609 fn. 5; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18.) The Plaintiffs did not do so and cannot now complain.
To the extent the Plaintiffs are suggesting the complaint should simply be construed differently (i.e., the complaint adequately pled a wrongful termination cause of action that was simply mislabeled hostile workplace harassment), they cannot prevail. Neither the allegations of the complaint nor the evidence produced support a wrongful termination cause of action.
An employer may not discharge or discipline an employee for a reason that contravenes a fundamental public policy (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 (Stevenson); Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, overruled on another point in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6), and such an action gives rise to a tort cause of action commonly known as wrongful discharge in violation of public policy, tortious discharge, or a Tameny claim (after Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167). A Tameny claim based on a claim the employer retaliated against an employee for engaging in conduct protected by public policy is sometimes known as a common law cause of action for retaliation or retaliatory discharge.
To establish a prima facie case of retaliation, the Plaintiffs must prove they engaged in protected activity, they were thereafter “subjected to an adverse employment action” by the District, and there was a causal link between the two. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz), italics added; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) A Tameny claim need not be based on the ultimate sanction of a discharge (see Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1562, disapproved on another point in Gantt v. Sentry Insurance, supra, 1 Cal.4th at pp. 1093-1095; Chin et al., Cal. Practice Guide: Employment Litigation, supra, ¶ 5:26, p. 5-3), but may lie if the employee suffers some lesser adverse employment action as a result of engaging in protected activity.
McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377 (McRae), explains what is meant by “adverse employment action.” “In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. [Citation.] ‘A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.’ [Citation.] ‘“[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any “action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.” [Citation.]’ [Citation.] The plaintiff must show the employer’s retaliatory actions had a detrimental and substantial effect on the plaintiff’s employment. [Citations.]” (McRae, supra, 142 Cal.App.4th at p. 386; see also Yanowitz, supra, 36 Cal.4th 1028.)
Here, even assuming arguendo the Plaintiffs engaged in protected activities, they did not suffer an adverse employment action as a result of those activities. The allegedly adverse employment action claimed by Borelli, Bruno, and Katz, was the loss of their assignments as department chairs. But, there are neither allegations in the complaint nor evidence in the record suggesting such a change in extra duty assignments had a detrimental and substantial effect on their employment. (See Ruggieri v. Harrington (E.D.N.Y. 2001) 146 F.Supp.2d 202, 217 [being denied opportunity to serve as department chair not an adverse employment action].)
For his part, Reta points to no adverse employment action he suffered other than vague assertions harassment itself was a form of discipline. Although an adverse employment action need not be a single allegedly retaliatory act (see Yanowitz, supra, 36 Cal.4th at p. 1052, fn. 11 [allegations must be considered under totality of circumstances approach]), the only specific incident Reta points to was having once found a napkin with a red dot on it placed at his workstation. That is not sufficient to permit a trier of fact to find Reta suffered an adverse employment action.
V
DISTRICT’S SEPARATE APPEAL: ATTORNEY FEES
The District separately appeals from the postjudgment order denying its request for an award of a portion of its attorney fees from Borelli under section 12965, subdivision (b). It contends the trial court abused its discretion by denying the fees. The District did not seek to recover its attorney fees from any other plaintiff. We find no reversible error.
The attorney fees request was made by the District and the individual defendants, all of whom were District employees. The notice of appeal was filed on behalf of the District and the individual defendants, but the District’s brief only addresses whether it was entitled to attorney fees; there are no separate arguments made on behalf of the individual defendants. The District apparently assumed the defense of the individual defendants and they incurred no separate attorney fees. The record indicates all the defendants were represented by the same attorneys and the only fees sought on the motion were those billed to the District.
Section 12965, subdivision (b), authorizes the court, in its discretion, to award reasonable attorney fees and costs to the prevailing party in an action brought under the FEHA. Because the California and federal antidiscrimination acts are similar, courts impose the standards articulated by the United States Supreme Court in Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412 (Christianburg), when considering an attorney fees award under the FEHA. (See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-1387.)
Strong equitable considerations support a policy favoring an award of attorney fees to a prevailing plaintiff. A prevailing plaintiff vindicates the antidiscrimination public policy of the FEHA, and providing for an award of his or her attorney fees makes private actions to enforce the FEHA’s policy feasible. (Flannery v. Prentice (2001) 26 Cal.4th 572, 582-583.) But, those equitable considerations do not apply to defendants, and for that reason, the United States Supreme Court in Christianburg articulated a stringent standard governing an award of attorney fees to a prevailing defendant. An attorney fees award to a successful defendant 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, supra, 434 U.S. at p. 421.)
A prevailing defendant in a FEHA case will recover attorney fees only in egregious cases. (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831 (Jersey).) A trial court considers factors like the plaintiff’s conduct in prosecuting the case, such as whether he distorted the facts, fabricated evidence, continuously presented renewed motions in which he attempted to disguise the basis for previous adverse rulings, or continued to litigate the matter with knowledge that the action was without legal basis. (See Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 869-870 (Rosenman); Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 771.) The court must also consider the losing plaintiff’s ability to pay his opponent’s attorney fees and how large the award should be in light of the plaintiff’s financial situation. (Rosenman, supra, 91 Cal.App.4th at pp. 868-869, fn. 42.) An award of attorney fees “‘should not subject the plaintiff to financial ruin.’” (Patton v. County of Kings (9th Cir. 1988) 857 F.2d 1379, 1382.)
The District sought its attorney fees from Borelli because it believes Borelli knew full well his retaliation claim was baseless. Borelli claimed he suffered an adverse employment action—being stripped of his department chairmanship—in retaliation for demanding investigation of the January 2003 voice mail message and demanding the District protect the rights of those he believed were the targets of the voice mail message. But, at his deposition, Borelli acknowledged that in October 2002 he knew Espinosa wanted to remove him as department chair, but could not do so until the end of the school year. The District argues Borelli knew the loss of his chairmanship was not retaliatory and pursuing his claim was, therefore, frivolous.
We simply cannot say on the record before us, the trial court’s exercise of its discretion in denying the request was beyond reason. Although we agree with the District as to the ultimate legal effect of Borelli’s allegations, there was evidence that at least one Board member believed Borelli was removed from his chair position in retaliation for his involvement in the January 2003 events. The trial court may well have taken other factors into consideration as well, particularly the financial impact of such an award on Borelli. We recognize the District was not requesting all its attorney fees—it sought to charge Borelli with about 15 percent, or $38,000, of its total fees of $244,000. Nonetheless, the trial court could reasonably have considered the economic disparities between a public school teacher plaintiff and a large school district defendant in assessing whether the plaintiff had the financial resources to absorb even a small portion of his opponent’s legal costs (it appears from the record the individual defendants did not actually incur legal costs and their defense was assumed by the District). Furthermore, a substantial attorney fees award could have a chilling effect upon other litigants with important rights to vindicate—in this regard, we note there were other plaintiffs in this case whose causes of action survived the District’s summary judgment motion.
V
DISPOSITION
The judgment and postjudgment order are affirmed. In the interests of justice, the parties shall bear their own costs and attorney fees on this appeal. (Cal. Rules of Court, rule 8.276(a)(4).)
WE CONCUR: ARONSON, J., IKOLA, J.