©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 195 finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”) (emphasis added). 297 Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal. App. 4th 859, 868 n.42 (2001) (“The trial court should also make findings as to the plaintiff’s ability to pay attorney fees, and how large the award should be in light of the plaintiff’s financial situation.”). See also Villanueva v. City of Colton, 160 Cal. App. 4th 1188, 1202 (2008) (trial court must consider non-prevailing party’s ability to pay before assessing attorney fees under the FEHA, but where plaintiff offered no evidence that might warrant a reduced fee award, trial court did not abuse discretion in awarding attorney fees to defendant). 298 Young v. Exxon Mobil Corp., 168 Cal. App. 4th 1467, 1477 (2008) (employee dismissed for closing down 24-hour service station for several hours, in violation of company policy, yet sued for discrimination and harassment). 299 Robert v. Stanford Univ., 224 Cal. App. 4th 67, 71-73 (2014). 300 Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 115 (2015). 301 Id. at 115 (prevailing defendant should not be awarded costs and fees unless “the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so”). 302 Scott v. City of San Diego, 38 Cal. App. 5th 228, 243 (2019) (defendant that made offer of $7,000 and then prevailed at trial could not recover its $52,000 in post-offer costs absent finding that plaintiff was frivolous). See also Gov’t Code § 12965(b) (amended to this effect). 303 Pollock v. Tri-Modal Dist. Servs., 11 Cal. 5th 918, 950-51 (2021). 304 Blum v. Superior Court, 141 Cal. App. 4th 418, 422 (2006) (DFEH complaint may be verified by attorney for complainant). 305 Rickards v. United Parcel Serv., Inc., 206 Cal. App. 4th 1523, 1529 (2012) (reversing summary judgment granted to employer because Rickards had failed to file a verified DFEH complaint; the complaint that his attorney filed through DFEH’s on-line automated system, though unsigned, was sufficient). 306 Wasti v. Superior Court, 140 Cal. App. 4th 667, 673-74 (2006) (Gov’t Code section 12962, which requires the complainant’s attorney to serve the DFEH complaint on the respondent-employer within 60 days, does not create jurisdictional prerequisite to FEHA suit; rather, notice is required only when the DFEH is to investigate, not when plaintiff requests the immediate right to sue). 307 See B. LINDEMANN,P.GROSSMAN &C.WEIRICH,EMPLOYMENT DISCRIMINATION LAW 27-49 to 27-60 (5th ed. 2012). 308 McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 112-14 (2008) (voluntary pursuit of internal administrative remedy before filing FEHA complaint will toll running of statute of limitations on FEHA claim; nothing in FEHA stands as a bar to the usual rule that limitations periods are tolled while a party pursues an alternate remedy; tolling may apply even if the plaintiff voluntarily abandons the internal proceeding). 309 2 Cal. Code Regs. § 10007(e)(2). 310 Foroudi v. The Aerospace Corp., 57 Cal. App. 5th 992, 1004 (2020). 311 Alch v. Superior Court (Time Warner Entm’t), 122 Cal. App. 4th 339, 403 (2004) (age discrimination that violates FEHA also violates the UCL, Bus & Prof. Code § 17200); Herr v. Nestle U.S.A., Inc., 109 Cal. App. 4th 779, 789-90 (2003) (plaintiff entitled to injunction under section 17200 for age discrimination as it gives unfair competitive advantage; rejecting the employer’s contention that the UCL aims to protect consumers and competitors, not employees). 312 Alch v. Superior Court (Time Warner Entm’t), 122 Cal. App. 4th 339, 404 (2004) (trial court lacked authority to award back pay on an age discrimination theory under the UCL; prevailing plaintiffs generally limited to equitable remedies such as injunctive relief and restitution). 313 See generally B. LINDEMANN &D.KADUE,AGE DISCRIMINATION IN EMPLOYMENT LAW 538-39 (2003). 314 Reid v. Google, Inc., 155 Cal. App. 4th 1342 (2007), rev. granted. 315 Reid v. Google, Inc., 50 Cal. 4th 512 (2010). 316 See, e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996); Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 809 (1999). 317 Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 809 (1999) (citing Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)). 318 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000). 319 Harvey v. Sybase, Inc., 161 Cal. App. 4th 1547, 1561 (2008), rev. granted. The Supreme Court initially agreed to decide whether FEHA plaintiffs must “present correspondingly stronger evidence of bias if the person responsible for the termination had previously treated the plaintiff favorably.” But then the Supreme Court dismissed review. The ultimate result is that Harvey was depublished and cannot be cited as authority. 320 See also Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 272, 273 (2009) (“no California case or statute has created a same actor presumption”; same-actor evidence should not have “some undue importance attached to it, for that could threaten to undermine the right to a jury trial by improperly easing the burden on employers in summary judgment”). 321 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). 322 Pantoja v. Anton, 198 Cal. App. 4th 87, 92 (2011). 323 Id. 324 Meeks v. AutoZone, Inc., 24 Cal. App. 5th 855 (2018). 325 Evid. Code § 1106(a), (b): (a) In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in
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