Filed 12/22/17; pub. order 1/16/18 (see end of opn.)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                              DIVISION TWO



WILLIAM BUSTOS,

         Plaintiff and Appellant,                          E065869

v.                                                         (Super.Ct.No. MCC1400627)

GLOBAL P.E.T., INC., et al.,                               OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

         Gleason & Favarote and Paul M. Gleason; Becerra Law Firm and Joseph R.

Becerra for Plaintiff and Appellant.

         Ford & Harrison, Lyne A. Richardson, Julianne Pinter and Alexandria M. Witte

for Defendants and Respondents.

                                            I. INTRODUCTION

         Plaintiff and appellant William Bustos brought this disability discrimination action

against his former employers, defendants and respondents Global P.E.T., Inc. and Global

                                                       1
Plastics, Inc. (collectively, Global). A jury found that Bustos’s physical condition or

perceived physical condition was “a substantial motivating reason” for his termination,

but nevertheless returned defense verdicts on each of his claims. After trial, Bustos

sought an award of attorney fees under the Fair Employment and Housing Act,

Government Code1 sections 12900 et seq., 12965 (FEHA), citing the holding of Harris v.

City of Santa Monica (2013) 56 Cal.4th 203 (Harris) that “a plaintiff subject to an

adverse employment decision in which discrimination was a substantial motivating factor

may be eligible for reasonable attorney’s fees and costs expended for the purpose of

redressing, preventing, or deterring that discrimination,” even if the discrimination did

not “result in compensable injury” for that particular plaintiff. (Id. at p. 235.)

       In this appeal, Bustos challenges the trial court’s ruling denying his motion for

attorney fees. We affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

       Bustos was employed by Global—first as a “Sheet Line Operator,” later as a

“Shift Supervisor”—from 2010 until his termination in October 2013. In April 2014,

Bustos filed suit, asserting seven causes of action: (1) discrimination on the basis of

disability; (2) failure to make reasonable accommodation for a known disability;

(3) failure to engage in the interactive process; (4) violation of the California Family

Rights Act; (5) retaliation in violation of the California Family Rights Act; (6) failure to




       1   Further undesignated statutory references are to the Government Code.

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prevent discrimination and retaliation; and (7) wrongful termination in violation of public

policy.

          Bustos alleged, and later argued at trial, that on the date of his termination, he was

suffering from carpal tunnel syndrome in his left hand, and was scheduled for surgery on

the next business day. His termination, he contended, was a result of discriminatory

animus. Global argued that Bustos was terminated for legitimate, nondiscriminatory

reasons, specifically, as part of economic layoffs that also resulted in the termination of a

number of other employees, and because he had failed one or more drug tests.

          The jury returned verdicts in favor of the defense on each of Bustos’s claims,

awarding him no damages. As relevant to the present appeal, on the special verdict form

for Bustos’s disability discrimination/wrongful termination claim, the jury selected “Yes”

in response to the question “Was [Bustos’s] physical condition or perceived physical

condition a substantial motivating reason for [Global’s] decision to discharge [Bustos]?”

The jury found, however, that Global’s “conduct” was not “a substantial factor in causing

harm to [Bustos].”

          After trial, plaintiff requested an award of attorney fees in the amount of

$454,857.90 pursuant to section 12965, subdivision (b), and the Supreme Court’s holding

in Harris, supra, 56 Cal.4th at p. 235. At the outset of the hearing on the motion, the trial

court tentatively indicated that it was inclined to deny the motion, commenting as

follows: “I’m mindful of [Harris]. But it’s—there’s still a lot of balancing that has to

occur. I understand the jury did return—on their verdict, they answered one of the

questions in the affirmative with respect to . . . was [Bustos’s] disability a motivating

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factor in his termination. However, the second part of that question was, was he harmed?

Was it a substantial factor in causing him harm? They said no. [¶] So ultimately, at the

end of the day, what we get to, even after Harris, is a discretionary call. And it is just too

difficult for me to—under these circumstances, when [Bustos] lost virtually everything in

terms of the trial on the contested issues, he did not—this did not result in, for example,

an injunction against [Global]. It didn’t result in any declaratory relief against [Global].

He prevailed on nothing in terms of getting—well, he got nothing from the ultimate

verdict. [¶] And so for those reasons, it would be difficult for me . . . to award attorneys’

fees notwithstanding the fact that the ultimate judgment is in favor of [Global].” After

hearing argument from Bustos’s counsel, the trial court adopted the tentative as its ruling,

denying the motion.

                                     III. DISCUSSION

       A. Standard of Review.

       By statute, the “prevailing party” in a FEHA action may be awarded reasonable

attorney fees. (§ 12965, subd. (b); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970,

984 (Chavez).) Because FEHA does not define the term “prevailing party,” prevailing

party status is determined in this context “based on an evaluation of whether a party

prevailed ‘“on a practical level,”’ and the trial court’s decision should be affirmed on

appeal absent an abuse of discretion.” (Donner Management Co. v. Schaffer (2006) 142

Cal.App.4th 1296, 1310 (Donner Management).) In applying this standard, the trial court

must identify the prevailing party “by analyzing the extent to which each party has



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realized its litigation objectives.” (Castro v. Superior Court (2004) 116 Cal.App.4th

1010, 1023 (Castro).)

       We review the trial court’s denial of attorney fees for abuse of discretion.

(Chavez, supra, 47 Cal.4th at p. 989.) “Although precise definition is difficult, it is

generally accepted that the appropriate test of abuse of discretion is whether or not the

trial court exceeded the bounds of reason, all of the circumstances before it being

considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced

from the facts, a reviewing court lacks power to substitute its deductions for those of the

trial court.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) Nevertheless,

we review the question of whether the trial court applied the proper legal standards de

novo; a reasoned decision based on a reasonable, but mistaken, view of the scope of

discretion would still be an abuse of judicial discretion, even though it would not exceed

the bounds of reason in the ordinary meaning of the phrase. (Horsford v. Board of

Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394.)

       Additionally, in the FEHA context, the trial court’s discretion is guided by the

principle that “a prevailing plaintiff should ordinarily recover attorney fees unless special

circumstances would render the award unjust, whereas a prevailing defendant may

recover attorney fees only when the plaintiff’s action was frivolous, unreasonable,

without foundation, or brought in bad faith.” (Chavez, supra, 47 Cal.4th at p. 985.)

       B. Analysis.

       The gravamen of Bustos’s claims of error on appeal is that Harris, supra, 56

Cal.4th at p. 235, together with the jury’s finding that his physical condition or perceived

                                              5
physical condition was a substantial motivating reason for his termination, requires the

trial court to award him attorney fees. We disagree, and find no abuse of the trial court’s

discretion.

       In Harris, the Supreme Court considered, among other things, the remedies

potentially available to a plaintiff who “has shown that discrimination was a substantial

factor motivating a termination decision,” but whose employer “has shown that it would

have made the same decision in any event.” (Harris, supra, 56 Cal.4th at p. 232.) Its

holding is phrased broadly enough to encompass not only the same-decision context, but

other situations where a plaintiff proves employment discrimination, but for one reason

or another that discrimination “does not result in compensable injury” to that “particular

plaintiff.” (Id. at p. 235.) Specifically, with respect to attorney fees, the Supreme Court

held that “a plaintiff subject to an adverse employment decision in which discrimination

was a substantial motivating factor may be eligible for reasonable attorney’s fees and

costs expended for the purpose of redressing, preventing, or deterring that

discrimination.” (Ibid.)

       Nevertheless, it is important to emphasize that Harris does not require the trial

court to award attorney fees to any plaintiff who proves discrimination was a substantial

motivating factor of an adverse employment decision; rather, such a plaintiff “may be

eligible” to recover attorney fees. (Harris, supra, 56 Cal.4th at p. 235.) Implicitly,

therefore, such a plaintiff may not be eligible to recover attorney fees under FEHA,

because he or she is not a “prevailing party” as the term is defined in section 12965. (See

Donner Management, supra, 142 Cal.App.4th at p. 1310; Castro, supra, 116 Cal.App.4th

                                             6
at p. 1023.) Or, alternatively, in unusual circumstances, the trial court might exercise its

discretion not to make an award of attorney fees, even to a plaintiff who is deemed to

have prevailed. (See Chavez, supra, 47 Cal.4th at p. 985.) As the Supreme Court

reiterated in Harris: “An award of attorney’s fees is discretionary under section 12965,

subdivision (b). An award may take into account the scale of the plaintiff’s success, and

it must not encourage ‘unnecessary litigation of claims that serve no public purpose either

because they have no broad public impact or because they are factually or legally weak.’

[Citation.] Like Congress in enacting Title VII, our Legislature did not ‘“enact[]

legislation whose benefit inures primarily to lawyers in the form of a substantial fee

recovery, even if relief to the plaintiff is otherwise trivial and the lawsuit promotes few

public goals.”’” (Harris, supra, 56 Cal.4th at p. 235.)

       In the present case, we find no error in the trial court’s determination that Bustos

should not be awarded attorney fees. It is not beyond reason to conclude that a plaintiff

who obtains no relief at trial—either monetary or equitable—has not “realized [his]

litigation objectives,” regardless of whether one or more preliminary questions on a

special verdict form were answered in his favor. (Castro, supra, 116 Cal.App.4th at p.

1023.) Similarly, defendants who obtain judgment in their favor on all claims are

reasonably viewed to have “realized [their] litigation objectives,” regardless of how the

judgment was reached. (Ibid.) As such, the trial court did not exceed the scope of its

discretion by ruling that Bustos should not be awarded attorney fees as a prevailing party

pursuant to section 12965 under these circumstances.



                                              7
       Bustos takes issue with the trial court’s characterization of the results of the trial,

that he “‘lost virtually everything in terms of the trial on the contested issues.’” In

Bustos’s view, the “seminal issue decided by the jury was whether [he] was terminated as

part of a legitimate economic layoff” or whether it “was substantially motivated by his

disability.” Since that issue was decided in his favor, he contends that the trial court’s

comment demonstrates an abuse of discretion. Taken in context, however, the trial

court’s comments do not demonstrate any misunderstanding of the record. The trial court

explicitly remarked on the jury’s selections on the special verdict form, as well as its

bottom line verdicts in favor of the defense. And as discussed above, it was reasonable

for the trial court to give priority to the result embodied by the judgment, rather than the

jury’s special verdict findings, in determining who prevailed in this matter “‘on a

practical level.’” (See Donner Management, supra, 142 Cal.App.4th at p. 1310.)

       Bustos also asserts that the trial court denied his motion for attorney fees because

it “ignored the holding” in Harris. The record does not support this contention. The trial

court explicitly acknowledged Harris in its remarks regarding its tentative ruling. The

trial court correctly recognized, moreover, that even under Harris, the award of attorney

fees pursuant to section 12695 is discretionary, and it appropriately exercised that

discretion. We reject Bustos’s arguments to the contrary, which are based on a

misreading of Harris.




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                                   IV. DISPOSITION

      The order appealed from is affirmed. Respondents are awarded their costs on

appeal.




                                                           CODRINGTON
                                                                                    J.
We concur:


      RAMIREZ
                            P.J.

      MILLER
                              J.




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Filed 1/16/18

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                        DIVISION TWO


WILLIAM BUSTOS,

        Plaintiff and Appellant,                    E065869

v.                                                  (Super.Ct.No. MCC1400627)

GLOBAL P.E.T., INC., et al.,                       ORDER CERTIFYING
                                                   OPINION FOR PUBLICATION
        Defendants and Respondents.


        Requests having been made to this court pursuant to California Rules of Court,
rule 8.1120(a) for publication of a nonpublished opinion heretofore filed in the above-
entitled matter on December 22, 2017, and it appearing that the opinion meets the
standard for publication as specified in California Rules of Court, rule 8.1105(c),

       IT IS ORDERED that said opinion be certified for publication pursuant to
California Rules of Court, rule 8.1105(b). The opinion filed in this matter on
December 22, 2017, is certified for publication.

        CERTIFIED FOR PUBLICATION

                                                              CODRINGTON
                                                                                          J.
We concur:

        RAMIREZ
                               P. J.

        MILLER
                                   J.


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