Filed 2/25/14

                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


FRANCIS ROBERT,                                     H037514
                                                   (Santa Clara County
        Plaintiff and Appellant,                    Super. Ct. No. CV162789)

        v.

STANFORD UNIVERSITY,

        Defendant and Respondent.



        Plaintiff Francis Robert appeals from the trial court’s order requiring him to pay
$100,000 in attorney’s fees to defendant Stanford University (Stanford) after Stanford
prevailed in Robert’s action under the California Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12900 et seq.). He claims that the court failed to make the
requisite written findings, failed to consider his financial condition, and abused its
discretion in finding that his FEHA cause of action was “without merit[,] frivolous and
vexatious.” We affirm.


                                      I. Background
                                      1
        Robert is an American Indian. He was employed by Stanford from 1997 to 2008.
Stanford terminated his employment in 2008 due to his harassment of a female Stanford



1
       Robert indicated at oral argument that he prefers to be referred to as American
Indian rather than Native American.
employee. He had been given several warnings prior to his termination, but he had
continued to harass her. His harassment of her led to a restraining order against him,
which was upheld on appeal by this court in 2009. Robert initiated this action in 2010.
His FEHA cause of action against Stanford alleged that his termination was based on his
race. He maintained that Stanford’s reliance on his harassment was merely a pretext for
racial discrimination.
       During discovery, Robert never identified any evidence other than his own
testimony that might support his FEHA cause of action. At trial, Robert testified that he
believed that those responsible for investigating the harassment and terminating him had
discriminated against him based on his “native ancestry.” He provided no other evidence
in support of his discrimination claim. At the close of evidence, Stanford moved for
nonsuit on all causes of action. Robert conceded that he had no evidence to support his
discrimination cause of action. He asserted that this was because the court had excluded
evidence, but the court noted that all of the excluded evidence was irrelevant to his
discrimination claim. The trial court granted Stanford’s motion for nonsuit on the FEHA
cause of action. It found that there was “some evidence” supporting Robert’s retaliation
claim and his breach of contract/breach of the implied covenant claim and allowed them
to go to the jury. The jury returned a defense verdict.
       Stanford incurred over $235,000 in attorney’s fees defending against Robert’s
action, and it filed a motion seeking to recover its attorney’s fees in the FEHA action.
Robert opposed the motion on the ground that he was “destitute” and that his FEHA
cause of action had not been frivolous, groundless, unreasonable, or vexatious. Robert
submitted a declaration in support of his opposition in which he claimed that he was
unemployed, had no income and no future employment prospects, had spent all of his
savings, and had borrowed the maximum amount that he could borrow from his
retirement.



                                             2
       At the hearing before the trial court, the court noted that Robert opposed an award
of attorney’s fees on the grounds that his cause of action was supported by “substantial
factual authority” and that he was “impecunious at this time.” Stanford argued that
Robert’s action was “vexatious” and designed to “harass [the victim of his harassment].”
It also challenged Robert’s claim that he was impecunious and claimed that “[h]e has
some assets.” The court awarded Stanford attorney’s fees. It stated: “I am finding that
the FEHA claim was without merit and was frivolous and vexatious. It was a legal
theory in search of facts. There were none that were presented.” The court also noted
that Robert’s non-FEHA cause of action had been decided by the jury “in fifteen
minutes.” Since attorney’s fees were not available on the non-FEHA cause of action, the
court apportioned fees and awarded Stanford $100,000, which was less than half of the
                                                         2
fees it sought. Robert timely filed a notice of appeal.


                                        II. Discussion
       Robert’s discrimination cause of action was brought under FEHA. (Gov. Code,
§ 12940.) “In civil actions brought under [FEHA], the court, in its discretion, may award
to the prevailing party . . . reasonable attorney’s fees and costs, including expert witness
fees.” (Gov. Code, § 12965, subd. (b).) “Despite its discretionary language, however,
the statute applies only if the plaintiff’s lawsuit is deemed unreasonable, frivolous,
meritless, or vexatious. . . . ‘ “[M]eritless” is to be understood as meaning groundless or
without foundation, rather than simply that the plaintiff has ultimately lost his case . . . .’ ”
(Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948-949, fn. omitted.) “[A]
plaintiff’s ability to pay must be considered before awarding attorney fees [in a FEHA



2
       Stanford originally challenged the timeliness of Robert’s notice of appeal, but it
withdrew this contention at oral argument after it realized that the contention lacked
merit.

                                               3
action] in favor of the defendant.” (Villanueva v. City of Colton (2008) 160 Cal.App.4th
1188, 1203.) A trial court awarding attorney’s fees to a prevailing defendant under
Government Code section 12965, subdivision (b) also must make “express written
findings” demonstrating that it has applied the proper standards. (Jersey v. John Muir
Medical Center (2002) 97 Cal.App.4th 814, 831 (Jersey).)


                    A. Court’s Failure To Make Written Findings
       Robert claims that the trial court’s attorney’s fees order must be reversed because
it failed to make express written findings.
       The court did not issue a separate written order on the attorney’s fees issue.
Instead, the attorney’s fees award was incorporated into an amended judgment. The
amended judgment stated only: “Having considered the moving, opposition and reply
papers, and arguments at the July 20, 2011 hearing, and good cause appearing, the Court
granted Defendant’s motion and awarded attorneys fees in the amount of $100,000.00.”
       The court made no express written findings in support of the attorney’s fees
award, but it did make express oral findings at the hearing where it announced its award.
“I am finding that the FEHA claim was without merit and was frivolous and vexatious. It
was a legal theory in search of facts. There were none that were presented.” The record
does not reflect that the court wrote down its findings.
       Stanford urges us to reject the judicially created requirement that an award of
attorney’s fees to a defendant in a FEHA case must be supported by express written
findings. The “express written findings” requirement originated in the Second District
Court of Appeal’s decision in Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser,
Weil & Shapiro (2001) 91 Cal.App.4th 859 (Rosenman). The trial court in Rosenman
had made no findings at all. Although the Second District concluded that reversal was
required because there was no possible factual basis for an award, the court also
“impose[d]” new rules governing such cases. (Rosenman, at p. 868.) “[W]e therefore

                                              4
impose a nonwaivable requirement that trial courts make written findings reflecting the
Christiansburg/Cummings standard in every case where they award attorney fees in favor
of defendants in FEHA actions.” (Ibid.) And the Second District commanded: “[W]here
the required findings are not made by the trial court, the matter must be reversed and
remanded for findings, unless the appellate court determines no such findings reasonably
could be made from the record.” (Ibid.) The Second District further suggested, in a
footnote, that “[t]he 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.” (Rosenman, at p. 868, fn. 42.) Although Rosenman has been cited for these
propositions a number of times, it has never been the basis for a holding on these points.
In Jersey, the First District cited Rosenman and noted the absence of findings, but, as in
Rosenman, the award was reversed based on an abuse of discretion due to the absence of
any basis for the award. (Jersey, supra, 97 Cal.App.4th at pp. 831-832.) The lack of
findings was immaterial.
       We see no need to address in this case the validity of the Second District’s
imposition in Rosenman of the requirement that the requisite findings be in writing. A
rule that the required findings be committed to writing serves a salutary purpose by
requiring the trial court to put the necessary thought into writing down its findings
thereby ensuring that it applies the appropriate standard. Written findings also facilitate
appellate review of those findings. We do see a need to address the Second District’s
further command in Rosenman that reversal is automatically required unless no award
could possibly be justified.
       “Article VI, section 13, of the California Constitution provides that a judgment
cannot be set aside ‘ . . . unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.’ This fundamental restriction on the power of appellate courts is
amplified by Code of Civil Procedure section 475, which states that trial court error is

                                               5
reversible only where it affects ‘ . . . the substantial rights of the parties . . . ,’ and the
appellant ‘sustained and suffered substantial injury, and that a different result would have
been probable if such error . . . had not occurred or existed.’ Prejudice is not presumed,
and the burden is on the appealing party to demonstrate that a miscarriage of justice has
occurred.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)
       We are bound by article VI, section 13 and Code of Civil Procedure section 475,
and we may not reverse a judgment in the absence of a showing of prejudice. It follows
that Rosenman’s rule that reversal is automatically required whenever the court fails to
make written findings (unless there is no basis for the court’s award) cannot withstand
scrutiny. When a court fails to make written findings, we examine the record to
determine whether it nevertheless discloses that the court applied the appropriate
standards. If the record affirmatively indicates that the court applied the correct
standards, the court’s failure to put its findings into writing does not itself justify reversal.
Here, the trial court made express oral findings when it ruled on Stanford’s motion at the
hearing. These express findings demonstrate that the court applied the correct standards.
Consequently, the court’s failure to put these findings in writing was not prejudicial and
does not itself justify reversal.


                          B. Consideration of Financial Condition
       Robert contends that the court failed to consider his financial condition. The
record rebuts his contention. The trial court explicitly stated at the hearing on the motion
that one of Robert’s contentions was that the motion should be denied due to his financial
condition. Robert’s written opposition to the motion and his accompanying declaration,
which the trial court affirmatively stated it had considered, detailed his financial
condition and sought denial of the motion on that basis. On this record, we can only
conclude that the trial court properly considered Robert’s financial condition.



                                                 6
                                   C. Abuse of Discretion
       Robert claims that the court abused its discretion in finding that his action was
“unreasonable, frivolous, meritless, or vexatious.” (Mangano v. Verity, Inc., supra, 167
Cal.App.4th at p. 949.) The trial court found that Robert’s FEHA cause of action was
meritless, frivolous, and vexatious, and lacked any factual support. Robert claimed in his
2010 FEHA cause of action that his termination was based on race. Stanford asserted
that it had terminated him due to his harassment of another employee. Before Robert
even initiated his FEHA action, this court had already upheld a restraining order against
Robert based on this harassment. Robert never had or even claimed to have any evidence
that race discrimination played a role in his termination other than his own opinion. The
trial court did not abuse its discretion in concluding that Robert’s action was both
meritless and vexatious. The complete absence of evidence to support his FEHA action
reflected its meritless nature, and the timing of his initiation of this action indicated that
his action was intended to harass.


                                       III. Disposition
       The amended judgment is affirmed.




                                               7
                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.




                                  8
Trial Court:                Santa Clara County Superior Court


Trial Judge:                Honorable Thomas P. Hansen


Attorney for Appellant:     Francis Robert
                            In propria persona


Attorneys for Respondent:   Michael T. Lucey
                            Don Willenburg
                            Gordon & Rees LLP
