A129524 (Cal. Ct. App. Jan. 9, 2012)

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A129524 A129762


RANDALL RADFORD, Plaintiff and Appellant, v. HUGH VANDERSPEK, Defendant and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County

Super. Ct. No. CGC-09-488061)

In this consolidated appeal plaintiff Randall Radford (plaintiff) appeals the dismissal of his cause of action for racial harassment against defendant Hugh Vanderspek (defendant) after the trial court granted defendant's motion for judgment on the pleadings. Defendant appeals the court's denial of his postjudgment motion for attorney fees. We reject the parties' contentions and affirm the judgment and postjudgment attorney fee order.


Preliminarily, we note that both parties cite facts not alleged in the complaint, appended to the complaint, or judicially noticed by the trial court. Since those matters are outside the scope of our review of a judgment on the pleadings, we disregard them. (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672 (Kapsimallis).)

BAE Systems San Francisco Ship Repair Inc. (BAE) operates a large shipyard at the Port of San Francisco. In October 2005, plaintiff, who is African-American, was hired by BAE as facilities superintendent. In January 2008, defendant became acting general manager of BAE. On June 19, 2008, defendant told plaintiff he was being terminated because defendant had "decided to downsize [plaintiff's] position" and wanted to "go in a different direction."

DFEH Proceedings

On June 19, 2008, plaintiff complained to defendant that he was being subjected to differential treatment because of his race. Immediately after complaining to defendant about what plaintiff believed to be "race discrimination," he was terminated. On January 4, 2009, plaintiff, acting in pro per, filed a form discrimination complaint with California's Department of Fair Employment and Housing (DFEH) against BAE. It alleged that during the course of his employment at BAE, plaintiff was subjected to "differential treatment." He believed he was subjected to differential treatment and terminated "in retaliation for opposing practices [he] believe[d] to be unlawful" under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).Plaintiff's beliefs were based on the following: In January 2008, following a crane accident, the responsibility for shipyard cranes was transferred to plaintiff. Plaintiff believed this transfer of responsibility was because of his race "in context to blame [him]" for the crane incident. In April 2008, when plaintiff inquired about the yearly equitable pay adjustment provided to managers, defendant advised him that his equitable pay adjustment was being reviewed by the corporate office. Plaintiff was the only African-American in management, and the only manager whose equitable pay adjustment was reviewed by the corporate office. Unlike other members of management, plaintiff did not receive his equitable pay adjustment. Prior to complaining about race discrimination, plaintiff's work was praised by his "supervisor" and his yearly equitable pay adjustments were approved. On January 14, 2009, DFEH issued its notice of case closure and right-to-sue notice, informing plaintiff that his case was closed on the basis of "Processing Waived To Another Agency," and stating his case may be referred to the Equal Employment Opportunity Commission (EEOC).

All undesignated section references are to the Government Code.

We presume this reference to "supervisor" was to defendant.

After plaintiff filed the instant action in superior court, the EEOC closed its file on his claim.

On March 20, 2009, after retaining an attorney, plaintiff filed another form DFEH complaint and requested a right to sue. The complaint stated, in part, "I allege that on June 19, 2008, the following conduct occurred: X termination . . . because of X race/color." The box for "harassment" was left unchecked. This DFEH complaint was virtually identical to the allegations of his January 2009 DFEH complaint. Plaintiff's form "Right-to-Sue Complaint Information Sheet" indicated he is African-American and his occupation was "Supervisor." On April 13, 2009, DFEH sent plaintiff a right-to-sue notice and closed the case.

The March 2009 complaint was filed on form DFEH-300-03 (04/08). The January 2009 complaint was filed on form DFEH-300-01 (12/99).

Plaintiff's Complaint

On May 4, 2009, plaintiff filed the instant complaint in San Francisco Superior Court against BAE and defendant. As against defendant, the complaint alleged retaliation and racial harassment in violation of the FEHA (§ 12940, subds. (h) & (j)). In relevant part, the complaint alleged the following: Defendant did not like plaintiff, treated African-American employees differently than non-African-American employees and made numerous racially offensive and derogatory comments to and about African-American employees. Numerous African-American employees complained to plaintiff about racially discriminatory conduct in the assignment of working hours. In or about April 2008, when plaintiff asked defendant about his equitable pay adjustment, he was told it was being reviewed at the corporate office. No other manager was forced to ask for their pay adjustment and no other manager had to have their pay adjustment reviewed by the corporate office. In or about May, defendant approved plaintiff's request for vacation and compensatory time. However, shortly before plaintiff was to leave on vacation, defendant told plaintiff he would not be paid for the time off defendant previously had approved and said plaintiff had to be back two days early for an event that never took place.

Judgment on the pleadings was granted only as to defendant; BAE is not a party to either appeal.

On June 18, 2008, plaintiff sent defendant an e-mail requesting a meeting; defendant did not reply. The following day, defendant told plaintiff he had "decided to downsize [plaintiff's] position," and although plaintiff's performance was outstanding, he wanted to "go in a different direction." Defendant told plaintiff he was terminated effective the following Friday.

Plaintiff's harassment cause of action alleged that defendant harassed him based on his race by subjecting him to a hostile and offensive work environment: "Plaintiff's workplace was typified by degrading racial comments to and/or about him and his coworkers, and by treating him unfavorably and adversely compared to similarly situated white employees . . . ."

Attached to plaintiff's complaint is his March 2009 administrative complaint and "Right-to-Sue Complaint Information Sheet," and the April 2009 DFEH notice of case closure and right to sue. Those attached documents were incorporated in the complaint by reference and became a part of it. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800.)

Judgment on the Pleadings

Defendant moved for judgment on the pleadings on plaintiff's racial harassment cause of action, contending that plaintiff failed to exhaust his administrative remedies. In particular, defendant argued that plaintiff's DFEH administrative complaints did not mention or assert harassment and alleged no harassing conduct. Defendant also sought judgment on the pleadings on the retaliation cause of action on the ground that, as a matter of law, a supervisor who does not personally employ a plaintiff cannot be liable for retaliation. Defendant also argued the retaliation claim lacked any legal basis and was, therefore, frivolous.

In support of his motion for judgment on the pleadings, defendant requested the trial court take judicial notice of plaintiff's January and March 2009 administrative complaints, the records produced to defendant by the DFEH regarding plaintiff's January and March 2009 administrative complaints, and the records produced to defendant by the EEOC regarding plaintiff's January 2009 administrative complaint.

Plaintiff opposed defendant's request for judicial notice on the grounds that "there is no indicia of reliability as to the notes, documents, and papers maintained or kept by an individual employee of the EEOC or the DFEH," and the information sought by defendant was irrelevant. Plaintiff asserted, "What [p]laintiff—when he was unrepresented by counsel—told an EEOC investigator and what that EEOC investigator chose to record in his/her notes or omit from his/her notes is not relevant to whether or not [p]laintiff has properly alleged his claims."

In opposing the motion for judgment on the pleadings, plaintiff argued that both his harassment and retaliation causes of action had been properly pled. In asserting he sufficiently exhausted his administrative remedies regarding his harassment cause of action, he argued the claims in his administrative complaints alleging that he was subject to differential treatment due to his race were sufficient to place defendant on notice that plaintiff was being harassed.

At the hearing on the motion for judgment on the pleadings, the court determined that plaintiff's administrative complaints established discrimination, but not harassment,and plaintiff had failed to exhaust administrative remedies on the harassment claim. It stated, "The facts on which the plaintiff now bases harassment claims simply weren't mentioned or alluded to or discussed or apparent in any way, shape or form." The court clarified that it was not basing its ruling on plaintiff's failure to check the "harassment" box on the administrative complaint. The court granted defendant's request for judicial notice only as to plaintiff's two administrative complaints. It denied plaintiff's request for leave to amend his judicial complaint on the ground that there was nothing plaintiff could allege to avoid his failure to exhaust his administrative remedies.

Plaintiff did not contest the court's tentative ruling granting judgment on the pleadings on the retaliation claim and that claim is not at issue on appeal.

Neither party argues on appeal that the court's judicial notice ruling was erroneous, although they each improperly rely on matters that the court did not judicially notice.

When asked by the trial court what allegations could be added to the complaint to address the exhaustion issue, plaintiff's counsel responded, "we would like to at least have the 30 days required by code to think that through." When pressed, counsel said simply, "Well, I think we would add to the allegations facts that are specific enough to withstand the pleading phase to allow the harassment claim to proceed." On appeal, plaintiff has not addressed the court's refusal to allow time to amend and, so, we treat the issue as waived. (See Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655-656 [on appeal a plaintiff has the burden of proving there is a reasonable possibility that the defect in the pleading may be cured by amendment].)

Plaintiff filed a timely appeal from the July 30, 2010 judgment of dismissal.



Plaintiff contends judgment on the pleadings was improperly granted because his DFEH complaint was sufficient to encompass his claim of race harassment.

I. Standard of Review

"A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. [Citations.] All properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law; judicially noticeable matters may be considered. [Citations.]" (Kapsimallis, supra, 104 Cal.App.4th at p. 672.) Further, the court reviews the complaint liberally, giving it a reasonable interpretation, reading it as a whole and its parts in their context. (Code Civ. Proc., § 452; Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1323.)

II. The Law

A. Harassment Under the FEHA

"In the FEHA, the terms 'discriminate' and 'harass' appear in separate provisions and define distinct wrongs. [Citations.]" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705 (Roby).) Section 12940, subdivision (a) makes it "unlawful" (subject to certain exceptions) "[f]or an employer, because of the race, . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Subdivision (j)(1) of the same statute makes it unlawful (again subject to certain exceptions) "[f]or an employer . . . , or any other person, because of race . . . , to harass an employee . . . ." "Because the FEHA treats harassment in a separate provision, there is no reason to construe the FEHA's prohibition against discrimination broadly to include harassment." (Roby, at p. 706, fn. omitted.)

"[T]he FEHA's discrimination provision addresses only explicit changes in the 'terms, conditions, or privileges of employment' (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.]" (Roby, supra, 47 Cal.4th at p. 706.) Such official action by an employer with respect to an employee includes "hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action." (Ibid.)

Harassment does not involve any official exercise of delegated power on behalf of the employer. (Roby, supra, 47 Cal.4th at p. 706.) "[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Ibid.) "[H]arassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. . . . ' "[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. . . . [¶] . . . [¶] . . . [C]ommonly necessary personnel management actions . . . do not come within the meaning of harassment. . . . These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. . . . This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA." ' [Citation.]" (Roby, at p. 707, fn. omitted.)

An employee may be the victim of discrimination based on an official action by the employer and also be the victim of harassment by a supervisor based on abusive messages that create a hostile working environment. (Roby, supra, 47 Cal.4th at p. 707.) In that case, the employee would have two separate claims of injury. (Ibid.)

Roby acknowledged that discrimination and harassment are sometimes closely interrelated, "and even overlapping," particularly as to proof. (Roby, supra, 47 Cal.4th at p. 707.) Because harassment is generally concerned with the message conveyed to an employee, "in some cases, the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim." (Id. at p. 708.) In Roby, some of the official employment actions taken by the supervisor against the employee included shunning the employee during staff meetings, belittling the employee's job, and reprimanding the employee in front of the employee's coworkers. (Id. at p. 709.) The Supreme Court stated that these actions may have contributed to the hostile message that the supervisor was expressing to the employee in other, more explicit ways, and concluded that discrimination and harassment claims can overlap as an evidentiary matter. (Ibid.)

B. Exhaustion of Administrative Remedies

"Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH. Specifically, the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA. At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, DFEH generally issues the employee a right-to-sue notice. [Citation.]" (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153 (Wills).)

Exhaustion of administrative remedies is a jurisdictional prerequisite to an action in court for violation of the FEHA. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) Failure to exhaust administrative remedies is grounds for dismissal of the FEHA action. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 (Okoli).)

A civil action for violating the FEHA is limited to matters like or related to the DFEH complaint. (Okoli, supra, 36 Cal.App.4th at p. 1615; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2011) ¶16:317, pp. 16-49 (rev. #1, 2011) (Chin).) "Essentially, if an investigation of what was charged . . . would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent [civil] action. . . . [¶] . . . On the other hand, . . . 'when the difference between the charge and the complaint is a matter of adding an entirely new basis for the alleged discrimination,' " expansion of the complaint is not sanctioned. (Okoli, at p. 1615.)

Recently, in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir), an appeal from a summary adjudication of FEHA-based harassment claims for failure to exhaust administrative remedies, Division Two of this court adopted the following standard for determining the permissible scope for civil actions under the EEOC: "The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination 'like and reasonably related to' the allegations of the EEOC charge. [Citations.]" (Chin, supra, ¶16:195, p. 16-30 (rev. #1, 2010); Nazir, at p. 266.) "Administrative charges are to be construed liberally because they are often drafted by claimants without the assistance of counsel." (Chin, supra, ¶ 16:196, p. 16-30 (rev. #1, 2010); Nazir, at pp. 267-268.)

Relying on Sanchez v. Standard Brands, Inc. (5th Cir. 1970) 431 F.2d 455, 465-466, an employment discrimination case, Nazir explained the importance, under this standard, of information obtained through an administrative investigation, rather than from merely examining the administrative complaint: "[T]he 'scope' of the judicial complaint is limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. [¶] The logic of this rule is inherent in the statutory scheme of Title VII [of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)]. A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the [EEOC] carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance will the matter ever become the subject of court action. Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation." (Nazir, supra, 178 Cal.App.4th at pp. 267-268; accord, Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1064 [race discrimination case].) Nazir concluded, "what is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation." (Nazir, at p. 268.)

The Nazir court reversed the summary adjudication of an FEHA harassment claim after noting that in the materials the plaintiff submitted to the DFEH during its prelitigation investigation, the plaintiff claimed to be the victim of constant harassment. (Nazir, supra, 178 Cal.App.4th at p. 268.) The court concluded the materials submitted by the plaintiff were "adequate to specify the nature of his problems at the workplace," and demonstrated a triable issue as to whether the plaintiff exhausted his administrative remedies. (Id. at pp. 268-269.)

III. Analysis

A. A Plaintiff's Failure to Exhaust Remedies May Be Challenged at the Pleadings Stage

Nazir requires us to construe the administrative complaint in light of what might be uncovered by a reasonable investigation to determine if plaintiff has exhausted his administrative remedies. Plaintiff argues this compels an examination of facts and information outside the scope of the pleadings and, therefore, cannot be determined as a matter of law on a motion for judgment on the pleadings: "Because the determination of whether a plaintiff exhausted the administrative remedies rests on the assessment of what facts the DFEH might have discovered if it had conducted a reasonable investigation, the issue is one of fact which cannot rationally be determined as a matter of law and must be left for determination by way of summary judgment—if undisputed facts can be established—or by way of trial."

We disagree. First, Nazir did not hold or suggest that the determination of whether a plaintiff has exhausted administrative remedies cannot be made at the pleading stage, and plaintiff provides no authority for that assertion. Second, despite plaintiff's argument to the contrary, there is no logical barrier to resolving this issue on the pleadings in the appropriate case. As a practical matter, a plaintiff may attach to a complaint or seek judicial notice of his or her administrative complaint(s) and other documents filed by him or her with the agency in support thereof. Plaintiff attached documents of this nature to his complaint. In addition, a plaintiff may seek judicial notice of documents in the agency file constituting official acts by the agency. (Evid. Code, § 452, subd. (c).) Plaintiff concedes the propriety of doing so. This information combined with the allegations in the complaint may then provide a sufficient basis for the trial court to determine the scope of the plaintiff's administrative complaint and the scope of any reasonable or actual agency investigation. We reject plaintiff's contention that motions for judgment on the pleadings are an improper procedural device for testing whether a plaintiff has exhausted administrative remedies in an FEHA civil action.

B. Judgment on the Pleadings Was Properly Granted

In the trial court, plaintiff argued only that his DFEH complaints alleged acts of harassment. Plaintiff attached to his complaint the March 2009 DFEH complaint, the "Right-to-Sue Complaint Information Sheet," and the April 2009 DFEH notice of case closure and right to sue. Defendant asked the court to take judicial notice of both of plaintiff's DFEH complaints and other records produced to defendant by the DFEH and the EEOC. The trial court, in large part, upheld plaintiff's objection to this judicial notice request, taking notice of "the administrative complaints only." Plaintiff does not challenge the judicial notice ruling on appeal. As to plaintiff's race harassment claim, the court concluded that plaintiff failed to exhaust his administrative remedies. Our review of that conclusion is limited to a consideration of the allegations of plaintiff's complaint, the documents attached to and incorporated in the complaint, and those documents judicially noticed.

At oral argument, plaintiff argued the trial court took judicial notice of certain notes he submitted to DFEH, and, in those notes, he alleged an act of racial harassment: improper limitation of his vacation time. This argument misstates the record. Defendant requested that the court take judicial notice of those notes (as well as other documents). Plaintiff successfully opposed the request; the court's ruling is clear that it noticed only the administrative complaints. Thus, the record before us provides no evidence plaintiff provided the DFEH with any information regarding any alleged limitation of his vacation. This factual allegation first surfaced in his judicial complaint.

Plaintiff's administrative complaints alleged the following: First, in January 2008, responsibility for shipyard cranes was transferred to him because he was African-American in order to blame him for a crane accident. Second, in April 2008, when plaintiff inquired about his yearly equitable pay adjustment, defendant told him it was being reviewed by the corporate office. At that time, plaintiff was the only African-American in management, and the only manager whose equitable pay adjustment was reviewed by the corporate office. Unlike the other members of management, plaintiff did not get his equitable pay adjustment. Third, in June 2008, when he complained to defendant that he believed he had been subjected to race discrimination, he was terminated. Fourth, before he complained about race discrimination, plaintiff's equitable pay adjustments were approved and his performance reviews were satisfactory.

The allegations of plaintiff's administrative complaints clearly allege discrimination: "explicit changes in the 'terms, conditions, or privileges of employment' (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.]" (Roby, supra, 47 Cal.4th at p. 706.) Even construed liberally, the allegations of the administrative complaints do not allege harassment; they do not refer to situations in which the social environment of the plaintiff's workplace became intolerable as a result of harassment that communicated an offensive message to him. (Ibid.) Moreover, the administrative complaints do not allege " 'conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.' " (Id. at p. 707.)

In reliance on Roby, supra, 47 Cal.4th at page 707, plaintiff asserts that "[a]lthough discrimination and harassment are separate wrongs, they are sometimes closely interrelated, and even overlapping, particularly with regard to proof." Plaintiff argues the official employment actions alleged as discrimination in his DFEH complaints, including "precluding his equitable pay adjustments, and terminating him" also communicated a " 'hostile message,' " thereby establishing a basis for plaintiff's harassment claim.

Roby is inapposite. In Roby, the Supreme Court concluded "official employment actions . . . can also have a secondary effect of communicating a hostile message" "when the actions establish a widespread pattern of bias." (47 Cal.4th at p. 709.) The official employment actions in Roby "may have contributed to the hostile message that [the manager] was expressing to Roby in other, more explicit ways. . . . Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus." (Ibid., italics added.) The court then pointed to pervasive evidence of nonofficial employment actions constituting harassment and concluded "the jury could infer based on the discrimination evidence, that [the manager's] hostility was 'because of. . . [Roby's] medical condition.' " (Id., at p. 710.)

Here, unlike in Roby, plaintiff alleged no "widespread pattern of bias" in his DFEH complaints. Moreover, the discriminatory acts alleged do not add to a hostile message expressed in "other, more explicit ways" or provide a motive for pervasive harassment. Instead, the discriminatory acts stand alone. At bottom, plaintiff asks us to conclude that a DFEH complaint alleging only acts of discrimination will suffice to exhaust administrative remedies for nonofficial acts of harassment that could have been, but were not presented to the agency. But adopting this approach would eliminate the distinction between the two claims separately codified in the FEHA. (Roby, supra, 47 Cal.4th at pp. 705-707.) This we cannot do.

Plaintiff also argues on appeal that a reasonable agency investigation of these complaints would have uncovered harassment. However, he never made this argument in the trial court and we treat it as forfeited. (Junkin v. Golden West Foreclosure Service, Inc. (2010) 180 Cal.App.4th 1150, 1158.) In any event, we reject the argument on the merits.

Plaintiff's argument that a reasonable agency investigation would have uncovered acts of harassment rests on information contained in a declaration by Martin Nero. The Nero declaration was submitted by plaintiff in opposition to defendant's motion for judgment on the pleadings and properly stricken by the trial court. Plaintiff does not challenge that ruling on appeal. At oral argument, plaintiff argued that Nero's name and address were included in one or more of his DFEH complaints and, therefore, a reasonable investigation would have led to an interview of Nero and uncovered the acts of harassment. But plaintiff misstates the record. There is no mention of Nero, much less his address, in either DFEH complaint.

The trial court properly granted defendant's motion for judgment on the pleadings.



In July 2010, defendant moved for attorney fees incurred in defending against plaintiff's retaliation cause of action, asserting it was frivolous, unreasonable, without foundation, and brought in bad faith. (§ 12965, subd. (b).) Defendant also sought a fee for bringing the attorney fee motion.

Section 12965, subdivision (b) states in pertinent part: "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity."

Attached to the supporting declaration of defendant's counsel, Tracy Thompson, is an April 14, 2010 letter Thompson sent to plaintiff's counsel, Carla Minnard, by United States mail, facsimile, and e-mail, informing Minnard that plaintiff's retaliation claim against defendant was frivolous since, as a matter of law, supervisors are not liable for retaliation claims. Thompson's letter cited Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174 (nonemployer individuals are not personally liable for retaliation). The letter also asserted the harassment claim against defendant was "equally baseless" because plaintiff failed to exhaust administrative remedies and plaintiff testified at his deposition that he never witnessed defendant engage in harassing behavior. The letter further stated "it is clear that [p]laintiff's claims are frivolous, and further pursuit of them would subject [p]laintiff and his counsel to liability for [defendant's] attorneys' fees and costs." To avoid liability for fees and costs, the letter suggested that plaintiff dismiss all his claims against defendant. Minnard did not respond to Thompson's letter.

Thompson's declaration stated the following: Thompson and associates Tim Travelstead and Alex Miller were involved in obtaining the ruling on defendant's motion for judgment on the pleadings. Thompson provided 4.7 hours of legal services to defendant at a rate of $395 an hour in connection with the dismissal of all claims against defendant. Travelstead provided 72.7 hours of legal services at a rate of $350 an hour in connection with the dismissal of all claims against defendant. Miller provided 10.4 hours of legal services at a rate of $250 an hour in connection with the dismissal of all claims against defendant. Thompson, Travelstead and Miller drafted and edited pleadings; reviewed and analyzed pleadings; drafted, reviewed and analyzed correspondence to plaintiff's counsel; prepared legal analysis; and conducted legal research. Thompson additionally formulated case strategies and consulted with defendant. Approximately one-third of the $29,901.50 in total fees—$9,967.17—was reasonably attributable to the dismissal of plaintiff's retaliation claim. Thompson also sought $3,390 in fees for preparation of the attorney fees motion, and anticipated expending another $3,390 in fees in analyzing plaintiff's opposition memorandum, drafting a reply memorandum and attending the hearing on the motion.

Thompson's declaration stated that the remaining two-thirds of attorney time expended was directed at defending plaintiff's harassment claims against defendant and against BAE.

The trial court's October 11, 2011 order denying defendant's attorney fee motion states, in part: "Although the retaliation claim was frivolous the harassment claim was not. Even if allocation was appropriate under . . . section 12965b there are no costs and very little fees that would not have been incurred on the harassment claim. In any event [d]efendant has provided no evidence to the court on which it could do more than speculate as to an appropriate allocation." Defendant filed a timely appeal from the order denying his motion for attorney fees.


Defendant contends the trial court abused its discretion in failing to allocate any amount of attorney fees for his defeat of plaintiff's frivolous retaliation claim.

When authorized by statute, attorney fees are allowable as costs to a prevailing party. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(B).) In a FEHA action, the court has discretion to award reasonable attorney fees to the prevailing party. (§ 12965, subd. (b).) "California courts have followed federal law, and hold that, in exercising its discretion, a trial court should ordinarily award attorney fees to a prevailing plaintiff, unless special circumstances would render an award of fees unjust. A prevailing defendant, however, should be awarded fees under the FEHA only 'in the rare case in which the plaintiff's action was frivolous, unreasonable, or without foundation.' [Citation.]" (Young v. Exxon Mobile Corp. (2008) 168 Cal.App.4th 1467, 1474.) "The policy behind this disparate treatment with respect to the recovery of attorney fees is to ' "make it easier for a plaintiff of limited means to bring a meritorious suit," ' while serving ' "to deter the bringing of lawsuits without foundation," "to discourage frivolous suits," and "to diminish the likelihood of unjustified suits being brought." ' [Citation.]" (Leek v. Cooper (2011) 194 Cal.App.4th 399, 420.)

The court's award or denial of attorney fees under section 12695, subdivision (b) is reviewed for abuse of discretion. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) " 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) It is the burden of the party seeking attorney fees to prove that the fees it seeks are reasonable, and to prove that the court abused its discretion in not awarding fees. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.)

Here, defendant's counsel engaged in "block billing," a time-keeping method in which each attorney entered his or her total hours spent working on defendant's case, rather than itemizing the time expended on specific tasks, and more particularly, the retaliation cause of action. (See Welch v. Metropolitan Life Ins. Co. (9th Cir. 2007) 480 F.3d 942, 945, fn. 2.) "Block billing, while not objectionable per se . . . , exacerbate[s] the vagueness of counsel's fee request, a risky choice since the burden of proving entitlement to fees rests on the moving party." (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.) Defendant failed to establish with any certainty that his counsel expended one-third of their time and effort, i.e., approximately 29 hours, defending against plaintiff's legally invalid and frivolous retaliation claim. Because defendant failed to provide sufficient information for the trial court to determine the number of hours devoted by counsel to the retaliation claim, defendant has failed to establish that the court's denial of attorney fees was an abuse of discretion.


The judgment on the pleadings in favor of defendant and postjudgment order denying defendant attorney fees are affirmed. The parties shall bear their own costs on appeal.


We concur.