©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 193 284 Joaquin v. City of Los Angeles, 202 Cal. App. 4th 1207, 1226 (2012) (“an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment”). 285 McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1528 (2013). 286 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005). 287 Id. at 1055. 288 Natl’ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). 289 Yanowitz, 36 Cal. 4th at 1058. See also Dominguez v. Washington Mut. Bank, 168 Cal. App. 4th 714, 724 (2008) (reversing summary judgment against claim of sexual-orientation harassment, where plaintiff alleged co-worker made homophobic verbal attacks on her, then ceased verbal attacks and began engaging in other conduct to impede plaintiff’s ability to do her job; rejecting defendant’s argument that the later conduct was different and unrelated in nature to the prior conduct; plaintiff raised triable issues as to whether later conduct constituted continuing FEHA violation); Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1404 (2015) (continuing violation theory did not apply because time-barred acts of retaliation had already reached a threshold level of “permanence”; they had culminated in a suspension at which point the plaintiff knew that future efforts to end the unlawful conduct would have been futile). 290 Taylor v. City of Los Angeles Dep’t of Water & Power, 144 Cal. App. 4th 1216, 1237 (2006) (supervisor can be held personally liable for retaliation under FEHA); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1288 (9th Cir. 2001) (same); Walrath v. Sprinkel, 99 Cal. App. 4th 1237, 1242 (2000) (same). 291 Reno v. Baird, 18 Cal. 4th 640, 663 (1998) (FEHA does not create personal liability for supervisors who make discriminatory personnel management decisions); Khajavi v. Feather River Anesthesia Med. Grp., 84 Cal. App. 4th 32, 38 (2000) (only employer, not supervisor, can be liable for tort of wrongful discharge in violation of public policy). 292 Gov’t Code § 12940(h) (unlawful for “any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part”). 293 Jones v. The Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1162 (2008). 294 Fitzsimons v. Cal. Emergency Physicians Med. Grp., 205 Cal. App. 4th 1423, 1428-29 (2012). 295 Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2533 (2013). 296 Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013); Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 478 (2013); see also Mendoza v. W. Med. Ctr. Santa Ana, 222 Cal. App. 4th 1334, 1340-41 (2014). 297 2 Cal. Code Regs. § 11057. 298 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). See also Cummings v. Benco Bldg. Servs., 11 Cal. App. 4th 1383, 138788 (1992) (defendant’s attorney fees available only if plaintiffs’ lawsuit is deemed unreasonable, frivolous, meritless, or vexatious). 299 Mangano v. Verity, Inc., 167 Cal. App. 4th 944, 951 (2008) (affirming denial of defendant’s motion for attorney fees even though plaintiff’s rejection of Code of Civil Procedure section 998 offer made defendant the prevailing party; section 998 does not trump Christiansburg standard: defendant still must show the plaintiff’s case was frivolous). 300 SB 1300, 2018 bill amending Gov’t Code § 12965(b) (“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”) (emphasis added). 301 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). 302 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). 303 Robert v. Stanford Univ., 224 Cal. App. 4th 67, 71-73 (2014). 304 Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 115 (2015). 305 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”). 306 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). 307 Pollock v. Tri-Modal Dist. Servs., 11 Cal. 5th 918, 950-51 (2021). 308 Blum v. Superior Ct., 141 Cal. App. 4th 418, 422 (2006) (DFEH complaint may be verified by attorney for complainant). 309 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). 310 Wasti v. Superior Ct., 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).
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