B131078


IN THE COURT OF APPEAL OF CALIFORNIA


SECOND APPELLATE DISTRICT


DIVISION SEVEN

SHARI COHEN ROSENMAN,


Plaintiff and Appellant,


vs.


CHRISTENSEN, MILLER, FINK, JACOBS,

GLASER, WEIL & SHAPIRO, et al.,


Defendants and Respondents.


An Appeal from the Superior Court for Los Angeles County

David Workman, Judge

Superior Court Case No. BC179796


APPLICATION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

AND PROPOSED BRIEF IN SUPPORT

OF POSITION OF APPELLANT ROSENMAN

KRAKOW & KAPLAN, LLP

Marvin E. Krakow [Calif. State Bar No. 81228]

1801 Century Park East, Suite 1520

Los Angeles, California 90067

(310) 229 0900


Attorneys for Amicus Curiae

CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION






To the Honorable Presiding Justice of this Court:


The California Employment Lawyers Association (applicant) requests leave to file an amicus curiae brief in this case in support of the position of Appellant Rosenman on the issues related to the award of attorney fees.

The California Employment Lawyers Association is a professional and educational organization of over 200 lawyers who primarily specialize in representing employees in cases of employment discrimination and violations of workplace rights. The members of the California Employment Lawyers Association share a common concern for the elimination of discrimination against working men and women. The organization actively supports the development and implementation of the state and federal anti-discrimination laws through writing, teaching, legislative advocacy and litigation.

Applicant has appeared as amicus curiae before this and other courts on matters involving similar issues.



1

Applicant's counsel is familiar with the issues in this case and the scope of their presentation, and believes further argument is needed on the following points:

1. The extent to which the award of attorney fees to the defendant in this highly publicized case will discourage legitimate claims, and thus undermine the anti-discrimination laws.

2. The trial court's failure to apply the proper standard in awarding attorney fees to the defendant.

3. The trial court's failure to make an adequate record of the reasons for awarding attorney fees to the defendant.

4. The need for a clear standard prohibiting attorney fee awards to civil rights defendants when there is sufficient evidence to permit a jury to decide the ultimate issues of fact.




March 22, 2001 ___

MARVIN E. KRAKOW

Attorney for Applicant

California Employment Lawyers Association


TABLE OF CONTENTS


INTRODUCTION 1


I. THE UNITED STATES SUPREME COURT

AND THIS COURT ESTABLISHED STANDARDS

LIMITING THE AWARD OF ATTORNEY FEES

TO DEFENDANTS IN CIVIL RIGHTS CASES IN

ORDER TO PROTECT ACCESS TO THE COURTS. 3


A. The Courts Have Explicitly Recognized The

Threat Posed By Awards Of Attorneys Fees

To Defendants In Civil Rights Cases -- They

May Deter Legitimate Claims. 3


B. The Success Of Anti-Discrimination Laws

Depends On Access To The Courts For

Individual Plaintiffs. 6


C. The Trial Court's Award Of Attorney Fees

Creates An Immediate And Serious Obstacle

To The Enforcement Of Civil Rights Laws By

Deterring Legitimate Claims. 7


II. THE TRIAL COURT IGNORED THE STANDARDS

THAT THE UNITED STATES SUPREME COURT

DEVELOPED TO PREVENT DETERRING LEGITIMATE

CIVIL RIGHTS CLAIMS. 9



III. THE TRIAL COURT'S AWARD OF ATTORNEY FEES

SHOULD BE REVERSED, BECAUSE IT IS

INCONSISTENT WITH THE DENIAL OF DEFENDANT'S

MOTION FOR NONSUIT. 10


IV. THIS COURT SHOULD ESTABLISH A CLEAR RULE

THAT A DEFENDANT MAY NOT RECOVER ATTORNEY

FEES IN A CIVIL RIGHTS CASE WHEN THE PLAINTIFF

HAS PRESENTED ENOUGH EVIDENCE TO PERMIT THE

CLAIMS TO BE DECIDED BY A JURY. THE COURT SHOULD

IMPOSE A NON-WAIVABLE REQUIREMENT THAT ANY

AWARD OF ATTORNEY FEES TO A CIVIL RIGHTS

DEFENDANT MUST BE SUPPORTED BY A WRITTEN

DECISION IDENTIFYING THE FACTORS WHICH THE

COURT RELIED ON TO SUPPORT THE AWARD. 13


A. The Proposed Rule. 14

1. The Christianburg/Cummings Standard As

The Basic Standard. 14


2. Prohibiting Defendant's Attorney Fees When

The Plaintiff Has Enough Evidence To Go To

A Jury Will Limit The Chilling Effect On

Legitimate Claims. 14


3. The Trial Court Should Be Required To Issue

A Written Decision Specifying The Basis For

Any Award Of Attorney Fees To A Prevailing

Defendant In A Civil Rights Case. 15



















TABLE OF AUTHORITIES


FEDERAL CASES


Carrion v. Yeshiva University


535 F.2d 722 (2nd Cir. 1976) 12


Christianburg Garment Co. v. Equal Employment Opportunity Commission


434 U.S. 412, 98 S.Ct. 694 (1978) 3, 5, 6, 7, 8, 9, 10, 13, 14


Coates v. Bechtel


811 F.2d 1045 (7th Cir. 1987) 4


E.E.O.C. v. Jordan Graphics, Inc.


769 F.Supp.1357 (W.D.N.C. 1991) 12


E.E.O.C. v. Kenneth Balk & Associates


813 F.2d 197 (8th Cir. 1987) 4


J. Harbulak v. County of Suffolk


654 F.2d 194, 195 (2nd Cir. 1981) 4


National Organization for Women v. Bank of California


680 F.2d 1291 (9th Cir. 1982) 12


Patton v. County of Kings


857 F.2d 1379 (9th Cir. 1988) 12


Plemer v. Parsons-Gilbane


713 F.2d 1127 (5th Cir. 1983) 4-5


Robinson v. Monsanto Co.


758 F.2d 331 (8th Cir. 1985) 5


Sayers v. Stewart Sleep Center, Inc.


140 F.3d 1351 (11th Cir. 1998) 4





Tonti v. C. Petropoulous


656 F.2d 212 (6th Cir. 1981) 5



STATE CASES



Alpert v. Villa Roman Homeowner's Association


81 Cal.App.4th 1320 (2000) 11


Armendariz v. Foundation Health Psychological Services, Inc.

24 Cal.4th 83 (2000) 9, 10


City and County of San Francisco v. FEHC

191 Cal. App.3d 976 (1987) 4


Cummings v. Benco Building Services


(1992) 11 Cal.App.4th 1383 5, 6, 7, 9, 11, 12, 13, 14


Johnson Controls, Inc. v. FEHC


218 Cal. App.3d 517 (1990) 4


Maria P. v. Riles


43 Cal.3d 1281 (1987) 9, 10


Mixon v. FEHC

192 Cal. App.3d 1306 (1987) 4



STATE STATUTES



California Constitution


Article 1, 8 10


California Code of Civil Procedure


581c(a) 11



2 California Code of Regulations


7285.1(b) 3-4



Government Code 12993(a) 4



BRIEF OF AMICUS CURIAE

CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF

POSITION OF APPELLANT ROSENMAN



INTRODUCTION



The public context and the public importance of this case has direct bearing on the legal issues before the Court. Lawyers followed the trial closely. It had an extremely high profile in the Los Angeles legal community. The Daily Journal carried the story on its front page throughout the trial. The defendant is one of the most visible law firms in the city. Partly on account of celebrity clients, some of the partners of the defendant firm are themselves celebrities. Those same partners testified at trial and were key actors in the events at issue. Plaintiff's trial counsel is a prominent member of the employment bar, a past chair and member of the executive board of the California Employment Lawyers Association. Because of the case's notoriety, the trial court's decision awarding six-figure attorney fees to the prevailing defendant was widely publicized and discussed.

The members of the plaintiffs' employment bar, that is, the membership of the California Employment Lawyers Association, had particular reason to take note of the large award of attorney fees: Those lawyers have the responsibility to advise victims of discrimination who are considering filing lawsuits for the redress of their grievances. More specifically, they must tell potential plaintiffs about the risks of litigation.

As a result of the trial court's fee award, once the lawyers conclude that a man or woman has a valid claim of discrimination, that is, a claim that the anti-discrimination laws were designed to vindicate, they must deliver a dire warning. They must now tell their clients that the decision to turn to the courts carries a real possibility that the court will award fees against them. The lawyers must say that the fee award may be in an amount far greater than the client's entire life savings. Faced with such a risk, individuals with valid claims choose to forego the rights and remedies which the law provides. They do not see reason in risking their homes or their savings for retirement or for college expenses.

That result undermines the civil rights laws, some of the most important and effective legislation of our lifetimes.

I. THE UNITED STATES SUPREME COURT AND THIS COURT ESTABLISHED STANDARDS LIMITING THE AWARD OF ATTORNEY FEES TO DEFENDANTS IN CIVIL RIGHTS CASES IN ORDER TO PROTECT ACCESS TO THE COURTS.


A. The Courts Have Explicitly Recognized The Threat Posed By Awards Of Attorneys Fees To Defendants In Civil Rights Cases -- They May Deter Legitimate Claims.



In Christianburg Garment Co. v. Equal Employment Opportunity Commission 434 U.S. 412, 98 S.Ct. 694 (1978), the Supreme Court carefully weighed the risk to the civil rights laws posed by the award of attorney fees to prevailing defendants. It then imposed a strict standard with the specific purpose of preventing fee awards from chilling the exercise of rights under the anti-discrimination laws. It stated that civil rights plaintiffs are "the chosen instrument of Congress" to vindicate a policy of "the highest priority". Id., at 418. Fees to defendants may only be awarded after a finding that plaintiff's lawsuit, from the start, was unreasonable, frivolous, meritless or vexatious. Id. at 421.

In denying attorney's fees awards to defendants, federal courts have been influenced by several circumstances present in this case.(1) Those circumstances include: 1) that plaintiff satisfied some of the elements of her claim; Plemer v. Parsons-Gilbane 713 F.2d 1127, 1141 (5th Cir. 1983) (award reversed where plaintiff failed to meet only one element of claim) 2) that plaintiff established a prima facie case; Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351, 1353 (11th Cir. 1998); 3) that dispositive motions were not deemed sufficient to take the case from the trier of fact; E.E.O.C. v. Kenneth Balk & Associates 813 F.2d 197, 198 (8th Cir. 1987) (award reversed where defendant failed to seek pretrial dismissal or summary judgment and never moved for directed verdict); 4) that plaintiff did not engage in years of discovery without producing any evidence, Coates v. Bechtel 811 F.2d 1045, 1050 (7th Cir. 1987) (time framework of seven months between Complaint and summary judgment a factor in overturning district court's grant of attorney's fees to prevailing defendant); 5) that the applicable law is unsettled, J. Harbulak v. County of Suffolk 654 F.2d 194, 195 (2nd Cir. 1981) (dismissed civil rights action found "wholly frivolous in light of precedents in this circuit and elsewhere"), Plemer v. Parsons-Gilbane 713 F.2d 1127, 1141 (5th Cir. 1983) (award reversed where "scant" precedent as to necessary showing under law); 6) that reasonable minds could differ as to the merits of plaintiff's claim, Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389 (award reversed where apparent that reasonable minds may differ as to the strength of plaintiff's action), compare Tonti v. C. Petropoulous 656 F.2d 212, 217 (6th Cir. 1981) (upholding award where reasonable minds could not arrive at different conclusions with respect to plaintiff's claims); and 7) length of the trial, Robinson v. Monsanto Co. 758 F.2d 331, 336 (8th Cir. 1985) (five day trial indicative that plaintiff's case not frivolous).

This Court has considered and applied the Christianburg standards and reasoning. Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1387, 1388 (1992). The Cummings court explicitly acknowledged that California would follow federal Title VII standards in deciding defendants' attorneys fees claims. Id., at 1387. The Cummings Court held that evidence of only part of a prima facie case would be enough to defeat a motion for attorney fees. Id. at 1389. In other words, the evidence required of a plaintiff to avoid an attorney fee award is less than the evidence required to defeat a motion for summary judgment or a motion for nonsuit. In granting a motion for attorney fees after finding that the plaintiff had enough evidence to take her case to the jury, the trial court ignored the requirements of both Cummings and Christianburg.

B. The Success Of Anti-Discrimination Laws Depends On Access To The Courts For Individual Plaintiffs.


The anti-discrimination laws are some of the most successful and important statutes of the past forty years. A large part of the reason for the success of those laws is that both Congress and the California Legislature enlisted the support of private individuals to enforce the statutory prohibition of discrimination. The statutes gave individuals the keys to the courthouse to prevent discrimination and to remedy its effects.

It would have taken a prophet of uncommon vision, in 1964, to foresee the dramatic changes which civil rights laws and civil rights litigation would bring to the American workplace. When President Johnson signed Title VII into law, there were virtually no women and virtually no minorities in positions of power or influence. The battle is not over. Despite great progress, only the most naive and the most disingenuous claim that we have eliminated the scourge of bigotry and discrimination. Today, however, the workplace much more nearly reflects the diversity of our population. In the context of individual lives, the changes brought about by our civil rights laws, and by civil rights plaintiffs, mean that men and women have opportunities to raise and to educate their children, that older workers are not driven from their jobs, that people with disabilities can make productive contributions side by side with every other worker, that women can aspire to leadership, and that minorities have a real shot at the American dream.

C. The Trial Court's Award Of Attorney Fees Creates An Immediate And Serious Obstacle To The Enforcement Of Civil Rights Laws By Deterring Legitimate Claims.

Attorney fees for defendants pose a direct and grave challenge to the success of our anti-discrimination laws. As a practical matter, the threat of an attorneys fee award will close the door to the courthouse. The risk of costs to an unsuccessful plaintiff already provide a strong caution against unfounded claims. Costs, after trial, may be $20,000.00 or more. The risk of attorneys fees increases that exposure many times over. For individuals, the exposure to attorney fees is often prohibitive.

Members of the California Employment Lawyers Association can no longer provide their clients with the assurance that the courts, in Christianburg and in Cummings, intended. They must now tell civil rights litigants that, despite the warnings of the appellate courts, a judge of the Superior Court awarded attorney fees and costs in excess of $150,000.00, that a judge awarded those fees in a case brought by one of the leading employment lawyers in the state. They must say that a judge of the Superior Court made that award without making any written finding that the action was frivolous or unreasonable or vexatious. They must say that a judge made that award even after finding -- as he must have found in order to deny the motion for nonsuit - that there was enough evidence for a reasonable jury to find liability.

The courthouse door is already swinging shut. The result of the necessary warnings - warnings based on the practical problems created by the ruling below - are that strong cases are not filed, valid appeals are not taken. The California Employment Lawyers Association, through its members, is aware of the actual impact of the trial court's ruling. The ruling has, in fact, not hypothetically, and not theoretically, but in real cases with real parties, discouraged the presentation of valid claims of discrimination. Amicus curiae respectfully submits that the fear expressed by the United States Supreme Court in Christianburg is now a reality: the attorney fee award in this case, and in similar cases, has already had the effect of undermining the civil rights laws by discouraging valid claims. This Court should consider that chilling reality in articulating standards for trial courts and for litigants.

II. THE TRIAL COURT IGNORED THE STANDARDS THAT THE UNITED STATES SUPREME COURT DEVELOPED TO PREVENT DETERRING LEGITIMATE CIVIL RIGHTS CLAIMS.


The trial court made its attorney fee award without any finding that the underlying lawsuit was unreasonable, vexatious, or frivolous at the time it was begun. Indeed, the trial court made no findings whatsoever. In Cummings v. Benco Building Services, supra, 11 Cal.App.4th 1383, at 1388, the court noted that findings are "necessary" when a trial court awards attorney fees to a defendant. Similarly, the California Supreme Court held that findings are necessary in order to permit appellate review of attorney fee decisions. Maria P. v. Riles, 43 Cal.3d 1281, 1295 (1987). Recently, the California Supreme Court held that, even in an arbitration forum, written findings are necessary to the vindication of the statutory purposes of the Fair Employment and Housing Act, and to permit judicial review. Armendariz v. Foundation Health Psychological Services, Inc., 24 Cal.4th 83, 107 (2000).

The trial court's failure to make any findings of the Christianburg factors required to support an award of attorney fees to defendants contributes directly to the deterrent effect of the trial court's ruling. It thus contributes to a public problem beyond the concerns of the individual parties.(2) Potential litigants need to know that any evaluation of an attorneys fee claim of a prevailing defendant will turn not on hindsight, and not on the mere fact that defendant prevails, but rather will be based on a considered and written decision, by the trial court, that the action was frivolous from the beginning. Thus, the failure to make written findings is, by itself, a sufficient basis to reverse the award of attorney fees to defendant.


III. THE TRIAL COURT'S AWARD OF ATTORNEY FEES SHOULD BE REVERSED, BECAUSE IT IS INCONSISTENT WITH THE DENIAL OF DEFENDANT'S MOTION FOR NONSUIT.


Even in the absence of necessary findings by the trial court, an award of attorneys fees to a defendant should be reversed as an abuse of discretion where the record does not support a finding of frivolousness:

"The record does not reflect the trial court made the necessary findings concerning the merits of appellant's age discrimination claim. The absence of findings, however, is not fatal to our review. A review of the record and subsequent events provides considerable proof appellant's claim of age discrimination was neither frivolous, unreasonable nor groundless. We consequently find the trial court abused its discretion in awarding costs and fees to Benco and reverse the award." Cummings v. Benco, supra, 11 Cal.App.4th 1383, at 1388.

In this case, the trial court denied defendant's motion for nonsuit. The standard for a motion for nonsuit is that the moving defendant must establish that, even if the evidence most favorable to plaintiff is taken as true, plaintiff's claims must fail as a matter of law. C.C.P. 581c(a). It in essence asks whether plaintiff's evidence is sufficient, as a matter of law, to prove a prima facie case. Alpert v. Villa Romano Homeowner's

Association, 81 Cal.App.4th 1320, 1328 (2000).

This Court has held that evidence less than that required to prove a prima facie case is enough to preclude an award of attorney fees to a defendant. Cummings v. Benco Building Services, supra, 11 Cal.App.4th 1383, at 1389. Indeed, the Cummings court overturned a fee award after a defendant prevailed on a summary judgment motion. The Court noted that one of the appellate justices had dissented from the decision affirming the summary judgment and that all had agreed that plaintiff had proven some of the elements of discrimination. The Cummings court recognized that a defendant seeking attorney fees in a civil rights case has a burden which is necessarily very heavy.

The Cummings court reviewed federal discrimination cases awarding attorney's fees to prevailing defendants and determined that in all of those cases either the "plaintiff's conduct was egregious or [ ] his or her case was patently baseless for objective reasons. Id. at 1389-1390. The federal cases examined by the Cummings Court stand in sharp contrast to plaintiff's case. Carrion v. Yeshiva University 535 F.2d 722 (2nd Cir. 1976) (perjury by plaintiff); Patton v. County of Kings 857 F.2d 1379 (9th Cir. 1988) (pursuing a cause of action obviously contrary to undisputed facts or established legal principles precluding recovery); National Organization for Women v. Bank of California 680 F.2d 1291 (9th Cir. 1982) (repeatedly renewing motions previously denied); E.E.O.C. v. Jordan Graphics, Inc. 769 F.Supp.1357 (W.D.N.C. 1991) (pursuing litigation after discovering evidence proving the factual basis for the discrimination claim was patently non-existent).

In this case, plaintiff clearly established a prima facie case of discrimination. She was a member of a protected class (female, pregnant). She was subject to adverse employment actions (reduced pay, termination). There was evidence which would support a conclusion that her protected status played a substantial role in the employer's decisions (timing). The trial court's rulings on defendant's motion for summary judgment and on the motion for nonsuit reflect the adequacy of plaintiff's case for the purposes of defeating a motion for attorney fees by the same defendant.

IV. THIS COURT SHOULD ESTABLISH A CLEAR RULE THAT A DEFENDANT MAY NOT RECOVER ATTORNEY FEES IN A CIVIL RIGHTS CASE WHEN THE PLAINTIFF HAS PRESENTED ENOUGH EVIDENCE TO PERMIT THE CLAIMS TO BE DECIDED BY A JURY. THE COURT SHOULD IMPOSE A NON-WAIVABLE REQUIREMENT THAT ANY AWARD OF ATTORNEY FEES TO A CIVIL RIGHTS DEFENDANT MUST BE SUPPORTED BY A WRITTEN DECISION IDENTIFYING THE FACTORS WHICH THE COURT RELIED ON TO SUPPORT THE AWARD.


The trial court's ruling has significantly undercut the Christianburg and Cummings intention to secure access to the courts for civil rights plaintiffs, and to counter the chilling effects of possible attorney fee awards. As a result of the public damage already done by the trial court's unsupported and unsupportable ruling, further assurances are necessary. Amicus respectfully submit that a bright line rule, providing additional protection, is necessary to restore the vigorous role of the court system in the enforcement of civil rights laws, and - as the Legislature intended - to encourage individuals to use the court system to resolve disputed claims of discrimination.


A. The Proposed Rule.

Amicus propose a three part rule:

1. The Christianburg/Cummings Standard As The Basic Standard


First, the high standards articulated in Christianburg and Cummings should be reaffirmed. Those standards are workable, and generally well understood.

2. Prohibiting Defendant's Attorney Fees When The Plaintiff Has Enough Evidence To Go To A Jury Will Limit The Chilling Effect On Legitimate Claims.


Second, a motion for attorney fees by defendant should be precluded when the trial court, by ruling in favor of plaintiff on a defendant's motion for summary judgment, motion for nonsuit, or motion for directed verdict, has determined that a jury, or trier of fact, ought to resolve the ultimate issues of fact. In such instances, the trial court's ruling denying any of the defendant's dispositive motions should be deemed sufficient to establish that the plaintiff's action is neither vexatious, unreasonable, nor frivolous.


3. The Trial Court Should Be Required To Issue A Written Decision Specifying The Basis For Any Award Of Attorney Fees To A Prevailing Defendant In A Civil Rights Case.

Third, the court should require a written decision by the trial court detailing the findings which support any award of attorney fees to defendants in civil rights cases. That requirement should not be subject to waiver by the parties, because it serves a public purpose beyond the resolution of the dispute of the individual litigants. The appellate courts have uniformly recognized that a detailed written decision is necessary for effective review. It is also necessary to the effective operation of the civil rights laws.

V. CONCLUSION

For the reasons set out above, the award of attorney fees to defendant should be reversed.

March 22, 2001 Respectfully submitted,

KRAKOW & KAPLAN, LLP




MARVIN E. KRAKOW


Attorneys for Amicus Curiae

California Employment Lawyers Association

1. The compelling force of federal supremacy requires our state courts to apply Title VII anti-discrimination law. Further, when interpreting the Fair Employment and Housing Act, California courts must follow federal decisions and law "to the extent practical and appropriate." 2 California Code of Regulations, Section 7285.1(b); Mixon v. FEHC, 192 Cal. App.3d 1306, 1316 (1987); City and County of San Francisco v. FEHC, 191 Cal. App.3d 976, 985 (1987). Because the provisions of the Fair Employment and Housing Act must be construed liberally to accomplish its purposes, Government Code, Section 12993(a), California courts may depart from federal authority which is more restrictive than state law. Johnson Controls, Inc. v. FEHC, 218 Cal. App.3d 517, 540 (1990).

2. In Maria P. v. Riles, supra, 43 Cal.3d 1281, 1295, the Supreme Court did not reach a defendant's challenge to the trial court's "failure to specify in its written order the basis of its calculation of the award". The Supreme Court held that defendant had the burden, as the party challenging the fee award on appeal, to provide a sufficient record to assess error. A plaintiff challenging an attorney fee award to a defendant in a Fair Employment and Housing Act case should not be held to the same standard. The requirement of findings by the trial court is necessary, not only to the parties, but to the administration of a statute designed to carry out fundamental public policies of the highest priority. Christianburg Garment Co. v. Equal Employment Opportunity Commission, supra, 434 U.S. 412, at 418; California Constitution, Article 1, 8; Armendariz v. Foundation Health Psychological Services, Inc., 24 Cal.4th 83, 107 (2000).