Filed 12/14/15 Sulatycky v. Sajahtera, Inc. CA2/5

                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION FIVE


ROBERT SULATYCKY,                                                    B259543
         Plaintiff and Appellant,                                    (Los Angeles County
         v.                                                          Super. Ct. No. BC463162)
SAJAHTERA, INC. and ALBERTO DEL
HOYO,
         Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County, Mel Red
Recana, Judge. Affirmed.
         Law Offices of Rob Henning, Hennig Ruiz, Rob Henning and Brandon Ruiz for
Plaintiff and Appellant.
         Stokes Wagner Hunt Maretz & Terrell, Peter B. Maretz and Shirley Banner
Gauvin for Defendants and Respondents.
                                    INTRODUCTION


       Plaintiff and appellant Robert Sulatycky (plaintiff) appeals from an order granting
a motion for attorney fees in favor of defendants and respondents Sajahtera, Inc.1 and
Albert del Hoyo (defendants). The order was entered following the trial court’s granting
of defendants’ motion for summary judgment as to plaintiff’s complaint, including his
claims under FEHA—California Fair Employment and Housing Act (Gov. Code § 12900
et seq.). Defendants moved for attorney fees under Government Code section 12965,
subdivision (b) [prevailing employer entitled to attorney fees when the action is
“unreasonable, frivolous, meritless, or vexatious”] and Code of Civil Procedure sections
998, subdivision (c)(1)2 and 1033.5, subdivision (a)(10). The trial court awarded
defendants attorney fees in the amount of $76,000.
       Plaintiff argues that the trial court abused its discretion in awarding attorney fees
because his FEHA claims were reasonable and meritorious and because the fee award
was excessive. We hold that the trial court did not abuse its discretion in determining
entitlement to and the amount of attorney fees. We therefore affirm the order granting
attorney fees.




1
       Sajahtera, Inc. is the holding company used by the Sultan of Brunei to own and
operate the Beverly Hills Hotel (hotel).
2
        Other than to point out that the standard for awarding attorney fees to a prevailing
defendant under Code of Civil Procedure section 998 in a FEHA case is the same as the
Government Code section 12695, subdivision (b) standard, neither of the parties rely on
section 998 as a basis for the attorney fees award. That section involves offers to
compromise. As here, when the award is less than the defendant’s offer, the defendant is
entitled to costs. (Code Civ. Proc., § 998, subd. (e).) Those costs may include attorney
fees if there is a contractual attorney fee clause. (See Scott Co. v. Blount, Inc. (1999) 20
Cal.4th 1103.) Whether attorney fees under Code of Civil Procedure section 998,
subdivision (e) can be awarded in view of Government Code section 12965, subdivision
(b) is a matter we do not have to resolve.

                                              2
                                      BACKGROUND


       Plaintiff and four of his former coworkers filed suit against defendants. In the
operative third amended complaint, plaintiff asserted (i) a FEHA sex discrimination claim
based on the behavior of defendant del Hoyo—the hotel’s general manager—in allegedly
favoring women over men; (ii) a FEHA harassment claim based on allegations that the
hotel’s general manager harassed him because of his sex and forced him to engage in
discriminatory employment practices; (iii) a FEHA claim for failure to prevent
discrimination and harassment; and (iv) a claim for constructive discharge in violation of
public policy. In September 2012, defendants served plaintiff with a settlement offer
under Code of Civil Procedure section 998, which offer plaintiff rejected.
       Defendants filed a motion for summary judgment.3 Before plaintiff’s opposition
to the summary judgment motion was due, he filed a motion for a terminating sanction
based on alleged spoliation of evidence by hotel executives. The trial court denied the
sanction motion, and, on the appeal from that ruling, we affirmed the order denying
sanctions.
       The trial court heard oral argument on defendants’ summary judgment motion and
issued an order granting summary judgment. Thereafter, the trial court entered a
judgment of dismissal in favor of defendants. Plaintiff filed a timely notice of appeal
from that judgment, and we affirmed the judgment in the same appeal that we affirmed
the denial of the sanctions motion.
       Following the entry of judgment, defendants filed a motion for attorney fees and
costs. They sought $295,021.58 in attorney fees and costs in the amount of $59,240.06.
Defendants’ motion was based upon Government Code section 12965, subdivision (b)
and Code of Civil Procedure section 998, subdivisions (c)(1) and 1033.5, subdivision
(a)(10).
3
      We judicially notice the documents that are part of the record in case number
B256972, the appeal of the summary judgment. The facts of the case are set forth in our
opinion in that appeal.

                                             3
         The trial court granted defendants’ motion for attorney fees against plaintiff in the
amount of $76,000, but ruled that the request for costs was moot as the cost issue was
raised in plaintiff’s motion to strike costs, which motion the trial court denied. The trial
court, after setting forth the law concerning attorney fees under Government Code section
12965, subdivision (b) and reciting the contentions of the parties, concluded as follows:
“As stated in the court’s ruling on the defendant[s’] motion for summary adjudication,
plaintiff’s claims had no merit as they were unsupported by insufficient [sic] evidence.
They were groundless and without foundation. There was no evidence to support any of
his claims. Even in the opposition to the motion for attorney’s fees, plaintiff does not
point to any evidence to support his argument that his claims had merit. See also
therapist notes detailing the reasons for his resignation. Accordingly, defendant[s are
entitled [their] attorney’s fees. See Bond [v. Pulsar Video Productions (1996) 50
Cal.App.4th 918, 922-923]; Guthrey [v. State of California (1998) 63 Cal.App.4th 1108,
1122, 1126].” The trial court concluded that defendants’ hourly rates were reasonable,
but reduced the award to $76,000 taking into consideration plaintiff’s ability to pay.
Plaintiff filed a timely notice of appeal.


                                         DISCUSSION


         A.     Standard of Review
         In reviewing a trial court order assessing attorney fees against a plaintiff in a
FEHA action, we use the abuse of discretion standard of review. (Gov. Code, § 12965,
subd. (b); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 101-
102; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1049-1050;
Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-1387.) In
reviewing the reasonableness of the amount of the attorney fees awarded, the standard of
review is also abuse of discretion. (Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270,
1274.)


                                                4
       B.     Applicable Law
       Government Code section 12965, subdivision (b) authorizes an award of
reasonable attorney fees and costs to the prevailing party in an action brought under
FEHA. California courts have interpreted the statute in accordance with federal law to
the effect that although a prevailing plaintiff in a FEHA case is entitled to attorney fees in
the discretion of the trial court, a prevailing defendant in a FEHA case cannot recover
attorney fees unless the plaintiff’s action is found by the trial court to be unreasonable,
frivolous, or groundless. (See Williams v. Chino Valley Independent Fire Dist., supra, 61
Cal.4th at p. 103-104; Leek v. Cooper (2011) 194 Cal.App.4th 399, 419-420.)
       The theory behind the distinction in FEHA cases between a plaintiff and a
defendant in 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.’” (Christiansburg Garment Co. v. EEOC (1978) 434
U.S. 412, 420.) The United States Supreme Court in Christiansburg explained that, “[i]n
applying these criteria, it is important that a district court resist the understandable
temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or without foundation. This
kind of hindsight logic could discourage all but the most airtight claims, for seldom can a
prospective plaintiff be sure of ultimate success.” (Id. at pp. 421-422.) Cases affirming
an attorney fees award to a defendant in a FEHA case have done so when the plaintiff
was not truthful about discrimination (Saret-Cook v. Gilbert, Kelly, Crowley & Jennett
(1999) 74 Cal.App.4th 1211, 1228-1229), when the plaintiff had released defendant
(Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 771-772),
when there was no evidence of discrimination (Villanueva v. City of Colton (2008) 160
Cal.App.4th 1188, 1200), and when the claim of discrimination was based only on the
plaintiff’s opinion and no evidence (Robert v. Stanford University (2014) 224
Cal.App.4th 67, 73).


                                               5
       On the other hand, a court has reversed an award in favor of a defendant in a
FEHA case, even though the defendant had obtained a summary judgment, because in
that case, the claim was based on an alter ego theory and there was evidence to support
some aspects of that theory, but not enough to show an inequitable result if the alter ego
doctrine was not applied. (Leek v. Cooper, supra, 194 Cal.App.4th at p. 421.) In Baker
v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784, the court
concluded, “In our review of the record, we conclude the action was not frivolous,
because plaintiff made a prima facie case of retaliation. An action is not frivolous simply
because the plaintiff’s FEHA claim failed.”


       C.     Analysis


              1.     Written Findings
       Plaintiff contends that because there were no written findings by the trial court, a
reversal is required. It has been held that the trial court is required to make written
findings when awarding attorney fees to defendants in a FEHA action. (See Rosenman v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859,
868.) But in Robert v. Stanford University, supra, 224 Cal.App.4th at pages 71 to 72, the
court said that the lack of written findings, by itself, does not result in an automatic
reversal because the appellant must also demonstrate the requisite prejudice under Article
VI, section 13, of the California Constitution. In addition, it appears that a minute order
with findings satisfies the requirement, if any, of written findings. (Leek v. Cooper,
supra, 4 Cal.App.4th at pp. 420-421.)
       The trial court issued a minute order finding that “plaintiff’s claims had no merit
as they were unsupported by insufficient [sic] evidence”; “there was no evidence to
support any of his claims; “even in the opposition to the motion for attorney fees, plaintiff
does not point to any evidence to support his argument that his claims had merit;” and
“see also therapist notes detailing the reasons for his resignation.” These findings are
sufficient to comply with any requirement of written findings.
                                              6
              2.      Legal Standard
       Plaintiff claims the trial court abused its discretion by using an improper standard
for awarding attorney fees. According to plaintiff, the trial court awarded fees based
solely on the fact that defendants had prevailed on their summary judgment motion by
showing that plaintiff's FEHA claims lacked legal merit. Plaintiff contends that under
Government Code section 12965, subdivision (b) as applied by the authorities, a
defendant seeking attorney fees thereunder must show more than merely that it prevailed
on summary judgment.
       The trial court’s minute order does refer to the summary judgment motion, but
then goes on to state that the case had “no merit,” was “unsupported by insufficient [sic]
evidence;” and was “groundless and without foundation.” Those findings show that the
trial court did not just rely on the summary judgment; it relied on other factors that are
consistent with the required legal standard. Indeed, the trial court’s order set forth the
applicable law, the parties’ contentions, and its conclusions, thus indicating it applied the
correct legal standard.


              3.      Other Claimed Defects
       Plaintiff asserts that the trial court did not in the order granting summary judgment
specify that his claims were wholly without merit. But a grant of summary judgment is a
determination that plaintiff’s claims lacked legal merit. There is no requirement in
awarding attorney fees to a defendant under Government Code section 12965,
subdivision (b) that the trial court specify in the underlying judgment or order the
grounds that would justify the subsequent award of attorney fees. Also, contrary to
plaintiff’s position, there is no requirement that the trial court in awarding fees detail
“transgressions” by plaintiff. The only requirement for an award of attorney fees is that
the action must be found to be “unreasonable, frivolous, meritless or vexatious.”
(Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.)




                                               7
              4.     No Abuse of Discretion in Awarding Attorney Fees
       Plaintiff does not attempt to point to evidence that shows the good faith, merit, or
reasonableness of his FEHA claims. He just points to the trial court’s statement
summarizing his allegations in the operative complaint, but to no actual evidence.
Indeed, we affirmed the summary judgment because plaintiff failed to comply on appeal
with the procedural requirements governing the contents of the statement of facts and
citation to the evidentiary record in an opening brief.
       In ruling on the summary judgment motion, the trial court ruled that plaintiff did
not show that he had suffered an adverse employment action from any discrimination.
The trial court also ruled that he did not show severe or pervasive harassment directed at
him. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) And, because there was no
actionable discrimination or harassment, the trial court concluded there was no valid
claim for failure to prevent discrimination or harassment. (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 352.) The trial court further ruled that there was no constructive
discharge because plaintiff voluntarily left his employment for reasons discussed below
and there was no conduct that effectively forced plaintiff to resign.
       Plaintiff, the second highest paid employee at the hotel, had asserted he left his job
with the hotel because of defendant’s acts of sex discrimination, harassment, failure to
prevent discrimination and harassment, and constructive discharge in violation of public
policy. But plaintiff’s proffered evidence in support of those allegations was undermined
by defendants’ evidence showing that he never complained about the alleged
discrimination and harassment and that he had confided in his therapist that he had left
his job for reasons unrelated to his discrimination and harassment allegations.
       The trial court noted that plaintiff “never once mentioned [to his therapist]
oppressive working conditions or the alleged sexist or racist actions of del Hoyo [the
hotel’s general manager] as a reason for wanting to leave.” The trial court also noted that




                                              8
plaintiff never made a written complaint regarding discrimination or harassment, despite
knowing there was an obligation to complain and procedure for doing so.4
       The notes of plaintiff’s therapist contained many statements by plaintiff describing
his perceptions of his employment and reasons for leaving—none of which concerned the
matters that were the subject of his action. Specifically, plaintiff told his therapist the
following: “I think at some point when my [injured] leg is better[,] I wouldn’t mind
[leaving]. I have already contacted some of the top headhunters in the world, to look for
another job. I have always stayed in a location for three years and I start to itch. Then I
would reach this plateau. In this company they have moved me up but I don’t see any
more challenges coming down the road and I get bored really easy. I should have left in
2008 before the economy tanked. The way the company hammers us about the economy
but we are still a profitable hotel. I’m tired of getting beat up. I want to disappear. I
called up some headhunters and it’s been five years. What I am looking for doesn’t come
around that often. If a job offer comes through and then I am out of here. Once the
divorce papers [are final] I am out of here. I don’t really like L.A. It feels like an itchy
sweater. It’s not my town. [¶] . . . [¶] I’ve been there for five years and it is the longest I
have been anywhere. You don’t see many chefs sticking around in one place. I do want
to move on. I am just hanging on because of [the injury to my leg from a skiing
accident]. They are going to cover whatever it costs [to treat] my leg. The economy is
tanking too and it is not fun. Every quarter we have to present the reports. The CFO
drills holes in the numbers. I finally said to them. After hours of trying to explain to
them I a[m] told that it’s not my fault that the economy is not my fault. It’s just not fun
right now. I wake up every morning and my knee wakes me up all night. My knee takes
twenty or thirty minutes to stand or move. One night I didn’t sleep all night. A lot of this


4
       At oral argument, plaintiff referred to a footnote in his reply brief in this appeal in
which he quotes an excerpt from his deposition testimony explaining why he believed
following the hotel’s complaint procedures would have been futile. That testimony,
however, does not contradict the undisputed fact that he never lodged a required formal
complaint, written or otherwise complained.

                                               9
has to do with this lack of interest or love. At the end of the day what I am inside is a
cook. Now I am purely an administrator. Making sure the figures align. I am interested
in that too. Having been removed from the kitchen four years I am out of touch with the
trends of food. I grapple with this decision. I don’t know what to do. I can’t think about
that until I get my leg organized. My boss is being hammered about what we are not
doing. All we kids take shit from the CFO. I am so tired of it. I just want to cash out
and disappear. . . . I have built my reputation on my ability to clean up staff and make
things work. I have no problem saying to someone your fired. Every place I have gone
has been clean[ed] up. I cleaned up [the hotel] and should have left two years ago. Right
at the height. I feel like a prisoner. An hour doesn’t go by when I don’t think about the
time when I am done. I think about that all the time. My personal life is a mess, my
physical life is a mess and my work life is not good. I hate my job. . . . The bottom line
is that I have done what I can do at that hotel I am not challenged by it. It is really time
for me to move on from my job. . . . There are two things in my mental struggle. One is
my leg and I will do whatever it takes to get my leg back. The other one is work. It is a
bit of a blessing in disguise that he took me out of work for three months. My insurance
will pay me full pay for three months. I have had two full nights of sleep. I shut
everything off. I get a phone call yesterday about a job in Cape Code in some chi chi
resort. It’s not the place I would want to work because of the snow. They said that I was
the super star that they are looking for. I would be involved in the kitchen. I need to get
back to creating with food. I want to be creative but not in the kitchen every day. They
close from December 1st to April 1st. That is very attractive. What is intriguing is that
they are not corporate, they are owned by a family. They micro manage everything.”
       Based on the foregoing evidence showing a complete lack of factual support for
plaintiff's FEHA claims, the trial court correctly concluded that plaintiff’s claims fell
within the standard set forth in Government Code section 12965, subdivision (b), i.e.,
“unreasonable, frivolous, meritless, or vexatious.” The trial court noted that “plaintiff
does not point to any evidence to support his argument that his claim had merit.” That is
true on appeal also. Accordingly, the trial court did not abuse its discretion by finding
                                              10
that plaintiff’s statements to his therapist and his failure to complain about alleged
misconduct established that plaintiff’s claims were meritless.
       At oral argument, plaintiff emphasized that his therapist’s notes were hearsay and
lacked foundation, and therefore they should not have been admitted or relied upon by
the trial court in ruling on the summary judgment motion. Although plaintiff made
boilerplate objections to the admission of the notes in opposition to the summary
judgment motion, the trial court implicitly overruled any such objections by relying on
the notes in ruling on the motion. It was therefore incumbent upon plaintiff to raise an
adequate challenge to the admission of those notes in his appeal from the summary
judgment. In his opening brief in the summary judgment appeal, however, plaintiff failed
to adequately raise the issue on appeal, 5 resulting in a waiver of such challenge. (Telish
v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 [“An appellant’s failure
to raise an argument in the opening brief waives the issue on appeal”].)


       D.     No Abuse of Discretion in Amount of Attorney Fees
       Plaintiff challenges the amount of the attorney fees on the ground that such fees
were “uncommon” and, based on plaintiff’s financial situation, excessive. Plaintiff does
not cite to any authority that a trial court must consider whether the amount of fees is
“common” or “uncommon.” Each application for attorney fees “stands on its own,” and
fees cannot be set “based on the awards made in other cases.” (Lunada Biomedical v.
Nunez (2014) 230 Cal.App.4th 459, 488.)


5
        The entire discussion of the admissibility issue in the opening brief—which did
not appear under a separate point heading—read as follows: “[Plaintiff] contends that the
trial court’s undue reliance on the notes of his therapist, William Cloke[,] was an
impermissible use of hearsay evidence [19AA4724-4726]. These notes were subject to
timely objections by [plaintiff] [AA153707]. These notes should never have been
admitted nor used by the trial court.” Plaintiff cited no authority for his conclusory
assertions and made no attempt to analyze the issue or develop his arguments. (See Cal.
Rules of Court, rule 8.204(a)(1)(B) [each brief on appeal must state each point under a
separate point heading and support each point by argument and citation to authority].)

                                             11
       Moreover, the trial court did consider plaintiff’s ability to pay in arriving at the
$76,000 figure, which is approximately one-fourth of the fees sought by defendants.
Plaintiff had earned a substantial salary in the past and indicated he had employment
opportunities in the past. And the trial court noted that there was no evidence that
plaintiff “could not be making a very good salary or that he lacks the ability to do so if he
so desired.” Thus, there is nothing in the record to suggest that the trial court abused its
discretion in arriving at the amount of the attorney fees.


                                      DISPOSITION


       The order awarding defendants attorney fees is affirmed. Defendants are awarded
costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   MOSK, J.


We concur:



              TURNER, P. J.



              KRIEGLER, J.




                                              12
