Filed 7/18/14 Nichols v. County of Los Angeles Child Support Services CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


MICHELLE NICHOLS,                                                     B244094

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. BC451011)
         v.

COUNTY OF LOS ANGELES
CHILD SUPPORT SERVICES
DEPARTMENT,

         Defendant and Respondent.



         APPEAL from judgment of the Superior Court of Los Angeles County,
Elizabeth Allen White, Judge. Affirmed.


         Law Offices of Andrew M. Wyatt and Andrew M. Wyatt for Plaintiff and
Appellant.


         Martin & Martin, LLP, Areva D. Martin, Eileen Spadoni and Steven H. Taylor for
Defendant and Respondent.
                                            _____________________
                                    INTRODUCTION
        Plaintiff Michelle Nichols sued her employer, the County of Los Angeles Child
Support Services Department (the Department), for discrimination and retaliation under
the Fair Employment and Housing Act, Government Code section 12960, et seq.
(FEHA). The trial court granted the Department’s motion for summary judgment and
awarded prevailing party attorney fees, concluding the Department had legitimate,
nondiscriminatory and non-retaliatory reasons for the challenged employment actions.
We affirm.
                    FACTS1 AND PROCEDURAL BACKGROUND
        1.     The Competitive Application Process and Plaintiff’s Initial Total Exam
               Score
        Plaintiff has been employed as an attorney with the County of Los Angeles (the
County) since 1998. She has worked as an Attorney II with the Department since August
2003.
        In 2008, Plaintiff applied for a promotion to one of four available Attorney III
positions with the Department. The competitive application process was administered by
the Department’s Exams Unit and was comprised of two components, each weighted at
50 percent: (1) a multiple choice examination, testing the applicant’s knowledge of the
law applicable to child support issues; and (2) an assessment of the applicant’s ability to
perform at the higher position, referred to as an “Appraisal of Promotability” or
“AP score”.



1
       The facts we recite are drawn largely from the Department’s separate statement of
undisputed facts, which Plaintiff either conceded or did not effectively counter with
admissible evidence. (See, e.g., Chateau Chamberay Homeowners Assn. v. Associated
Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 340, fn. 1; R. P. Richards, Inc. v. Chartered
Construction Corp. (2000) 83 Cal.App.4th 146, 151, fn. 3.) To the extent Plaintiff
offered additional or competing facts on a material issue, we state the evidence admitted
by the trial court in the light most favorable to Plaintiff, as the nonmoving party, in
accordance with the standard of review applicable to summary judgments discussed post.


                                              2
       Prior to the examination, each applicant received a Study Reference Guide, which
identified the laws and regulations that would be covered on the multiple choice test. To
pass the multiple choice portion, each applicant was required to score a minimum of
70 percent on the test.
       The applicants were then evaluated by the Appraisal of Promotability Committee
(the AP Committee), which determined the applicants’ AP scores based on the average of
their overall ratings on their two most recent performance evaluations. In general, the AP
Committee weighted an applicant’s overall ratings as follows:
       a.     “Outstanding” ratings were assigned a score of 100;
       b.     “Very Good” ratings were assigned a score of 90; and
       c.     “Competent” ratings were assigned a score of 80.
       Both components—the multiple choice test score and the AP score—were then
averaged together to calculate each applicant’s “total exam score.” Based on their total
exam scores, the applicants were separated into tiers called “Bands” as follows:
       a.     “Band 1”: total exam score of 95 to 100;
       b.     “Band 2”: total exam score of 89 to 94;
       c.     “Band 3”: total exam score of 83 to 88;
       d.     “Band 4”: total exam score of 77 to 82; and
       e.     “Band 5”: total exam score of 70 to76.
       In compliance with the County’s Civil Service Rules, the open positions were
filled by those applicants who placed in the highest ranked bands. In 2008, the highest
band achieved by any applicant was Band 2, and all four of the open Attorney III
positions were filled by applicants who placed in that band. One of those successful
applicants was unmarried at the time.
       Plaintiff received a score of 71.91 percent on her multiple choice examination, and
an AP score of 90, based on two “Very Good” ratings that Plaintiff received on her most
recent performance evaluations. The average of these two components yielded a total
exam score of 81, placing Plaintiff in Band 4.



                                            3
       2.     Plaintiff’s Protest and Increased Total Exam Score
       According to Plaintiff, her supervisor, Barbara Catlow, told her that she gave
Plaintiff an AP score of 100, however, Howard Strauss, a member of the AP Committee,
told Catlow that he intended to lower Plaintiff’s score. Plaintiff did not say whether
Catlow told her why Strauss had decided to lower her score. Nevertheless, Plaintiff was
disturbed that a member of the AP Committee, who did not supervise her, had lowered
her score.
       Based in part on her conversation with Catlow, Plaintiff submitted a protest to the
Department of Human Resources-Appeal Division, arguing her AP score did not
accurately reflect her prior performance evaluations. Plaintiff asserted the AP Committee
had failed to consider the “entirety” of her performance evaluations, specifically the fact
that her overall ratings had been “Very Good +,” which should have raised her AP score
to “95 or higher.” Plaintiff also challenged the multiple choice examination, arguing that
the test results should have been subject to review or thrown out entirely, because the
“disparity between all the examinees’ written examination score and AP score [sic]
shows that the examination is not a good testing of the ability to perform the work of a
Child Support Services Department attorney.” Plaintiff, however, stipulated that “[i]f my
AP score is raised to 95 or higher, I would withdraw the remainder of this appeal.” The
Department of Human Resources denied Plaintiff’s protest.
       Plaintiff appealed her protest to the Civil Service Commission, again arguing that
her AP score failed to account for the “Very Good +” ratings she received on her most
recent performance evaluations, and that the multiple choice examination should be
thrown out due to the “disparity between all of the examinees’ written examination scores
and the AP scores of those same candidates.” Plaintiff also asserted the Department had
a history of promoting using race as a basis and that, despite handling the duties of an
Attorney III for several years, she was the only “African American attorney in the lead
attorney position for an extended period of time” that had not been promoted to Attorney
III.



                                             4
       While Plaintiff’s protest to the Civil Service Commission was pending, the
Department of Human Resources revisited its decision regarding Plaintiff’s AP score.
Ultimately, the Department reversed its decision and raised Plaintiff’s AP score from 90
to 95, as she had requested. The higher AP score increased Plaintiff’s total exam score to
83, which moved her to Band 3. However, due to Plaintiff’s score of 71.91 percent on
the multiple choice examination, even an increased AP score of 100 would have resulted
in a total exam score of only 86, still placing her in Band 3—below the Band 2 ranking
from which the four Attorney III positions were filled.
       3.     Plaintiff’s Transfer to South Los Angeles
       In her Civil Service Commission protest, Plaintiff alleged she had been performing
the duties of an Attorney III, despite her Attorney II designation. Pursuant to a County
Code section that requires management to either promote a civil service employee or
return the employee to an in-class assignment once the employee requests relief from an
out-of-class assignment, the Department conducted an investigation and concluded that
Plaintiff was performing one of the duties specified for the Attorney III position.2
Although Plaintiff was not performing all the functions of an Attorney III, the
Department was concerned that it could be found out of compliance with the rule.
       After assessing the attorney positions at the Central Civil West location where
Plaintiff worked, the Department determined there were no positions that involved only
Attorney II job functions. However, the Department identified an open Attorney II
position in its South Los Angeles office, which Plaintiff had listed as a “preferred work
location” due to its proximity to her home in Culver City. The Department approved the
transfer and notified Plaintiff that her assigned location had been changed to correct the
“misalignment” between her job classification and some of the job functions she had
performed at Central Civil West.

2
        According to the Department’s undisputed evidence, the relevant County Code
section defines an “out-of-class assignment” as “the permanent, full-time performance of
all the significant duties of an allocated, vacant, funded position in a higher level class by
an individual in a lower level class.”


                                              5
       Plaintiff filed a protest with the Civil Service Commission, alleging the transfer
was an attempt to discriminate and retaliate against her for her prior protests. The
Department investigated the charges and concluded the allegations were “not
substantiated.”
       4.     The Summary Judgment and Attorney Fee Award
       On December 9, 2010, Plaintiff filed this civil action against the Department,
asserting four causes of action under FEHA for (1) race discrimination based on the
Department’s decisions not to promote and to transfer Plaintiff; (2) marital status
discrimination based on the decision not to promote; (3) failure to prevent discrimination
based on the Department’s alleged failure to thoroughly investigate and take corrective
actions with respect to Plaintiff’s discrimination allegations; and (4) retaliation based on
Plaintiff’s transfer to the South Los Angeles office following her Civil Service
Commission protest.
       On August 28, 2012, the trial court granted the Department’s motion for summary
judgment. With respect to Plaintiff’s discrimination claims based on the decision not to
promote, the court determined Plaintiff had not suffered an adverse employment action
and that the Department’s evidence established a legitimate nondiscriminatory reason for
its decision—namely, Plaintiff’s placement in Band 3, due to her low multiple choice
examination score. As for the retaliation and race discrimination claims based on
Plaintiff’s transfer to the South Los Angeles office, the court likewise concluded Plaintiff
did not suffer an adverse employment action and that the Department had a legitimate
nondiscriminatory reason for its decision—namely, the County Code mandate requiring
the Department to remedy Plaintiff’s out-of-class assignment. Finally, the court
determined Plaintiff could not maintain an action for failure to prevent discrimination
absent a cognizable claim that discrimination occurred.




                                              6
       On September 18, 2012, the trial court entered judgment for the Department. The
same day, the superior court clerk mailed a minute order to the parties, which stated
“Judgment is signed, filed and entered this date.” On November 21, 2012, the
Department served notice of entry of judgment.
       On December 12, 2012, the Department filed a motion for attorney fees pursuant
to Government Code section 12965, subdivision (b). After receiving Plaintiff’s
opposition and supplemental briefing concerning Plaintiff’s ability to pay an attorney fee
award, the trial court granted the Department’s motion. The court concluded Plaintiff’s
action was “unreasonable” and “without foundation” based on the undisputed evidence
adduced in connection with the Department’s summary judgment motion, and that the
lodestar calculation supported an attorney fee award of $107,508. Based on Plaintiff’s
gross annual income, the court concluded she had the ability to pay 50 percent of that
amount, in the total sum of $53,704.
                                       DISCUSSION
       1.     The Trial Court Properly Granted the Department’s Summary Judgment
              Motion
              a.     Standard of review and the three-stage McDonnell Douglas test for
                     employment discrimination claims
       “On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We make “an independent assessment
of the correctness of the trial court’s ruling, applying the same legal standard as the trial
court in determining whether there are any genuine issues of material fact or whether the
moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified
School Dist. (1995) 32 Cal.App.4th 218, 222.)




                                              7
       A defendant is entitled to summary judgment upon a showing that the plaintiff’s
action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The defendant meets this
burden with respect to each cause of action by establishing undisputed facts that negate
one or more elements of the claim or state a complete defense to the cause of action. (Id.,
subd. (p)(2); Romano v. Rockwell Internat., Inc. (1996)14 Cal.4th 479, 487.) Once the
defendant has made such a showing, the burden shifts to the plaintiff to show that a
triable issue of material fact exists as to the cause of action or defense. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 (Aguilar).)
       In the employment discrimination context, case law has refined the foregoing
burden-shifting analysis to incorporate the three-stage McDonnell Douglas test used to
try discrimination claims.3 (See Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088,
1097 (Kelly); Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004-
1005 (Scotch); see also Guz, supra, 24 Cal.4th at p. 354.) Under the McDonnell Douglas
test, a plaintiff employee who claims discrimination must first make a prima facie case,
consisting of evidence showing (1) the plaintiff was a member of a protected class;
(2) the plaintiff was qualified for the position he or she sought or was performing
competently in the position held; (3) the plaintiff suffered an adverse employment action,
such as termination, demotion, or denial of an available job; and (4) some other
circumstance suggests a discriminatory motive. (Guz, at p. 354-355.) Once the
employee satisfies this burden, there is a presumption of discrimination, and the burden


3
        “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting
test established by the United States Supreme Court for trying claims of
discrimination . . . based on a theory of disparate treatment.” (Guz, supra, 24 Cal.4th
at p. 354, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) “This so-
called McDonnell Douglas test reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved circumstantially.
Thus, by successive steps of increasingly narrow focus, the test allows discrimination to
be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily
explained.” (Guz, at p. 354.)


                                              8
then shifts to the employer to show that its action was motivated by legitimate,
nondiscriminatory reasons. (Id. at pp. 355-356.) A “ ‘legitimate’ ” reason is one that is
“facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of
discrimination.” (Id. at p. 358, italics omitted.) If the employer meets this burden, the
presumption disappears, and the employee, who retains the overall burden of persuasion,
then must show the employer’s reasons are pretexts for discrimination, or produce other
evidence of intentional discrimination. (Id. at p. 356.)
       As the court explained in Kelly, “[a] defendant employer’s motion for summary
judgment slightly modifies the order of these showings” under the McDonnell Douglas
test. (Kelly, supra,135 Cal.App.4th at p. 1097.) If the employer’s summary judgment
motion “relies in whole or in part on a showing of nondiscriminatory reasons for the
discharge, the employer satisfies its burden as moving party if it presents evidence of
such nondiscriminatory reasons that would permit a trier of fact to find, more likely than
not, that they were the basis for the termination.” (Id. at pp. 1097-1098, citing Aguilar,
supra, 25 Cal.4th at pp. 850-851; Guz, supra, 24 Cal.4th at p. 357.) “To defeat the
motion, the employee then must adduce or point to evidence raising a triable issue, that
would permit a trier of fact to find by a preponderance that intentional discrimination
occurred.” (Kelly, at p. 1098, citing Aguilar, at pp. 850–851; Guz, at p. 357.) In
determining whether these burdens were met, the court must view the evidence in the
light most favorable to the plaintiff, as the nonmoving party, drawing all reasonable
inferences in the plaintiff’s favor. (Aguilar, at p. 856; Kelly, at p. 1098.)
              b.      The undisputed evidence establishes Plaintiff was denied a
                      promotion due to her low examination score; Plaintiff failed to
                      adduce evidence of pretext or intentional discrimination based on
                      race or marital status
       Like the trial court, we conclude the Department’s evidence established a plausible
nondiscriminatory reason for the decision not to promote Plaintiff. The Department’s
evidence showed there were 35 applicants competing for only four open Attorney III
positions, and the promotion decisions were made through a competitive process that


                                               9
included an objective multiple choice examination, testing the applicants’ knowledge of
the law applicable to child support issues. Plaintiff received the same study materials as
the other applicants and took the same multiple choice examination, but she scored only
71.91 percent on the test—just above the 70 percent threshold required to be considered
for the promotion. As for the other half of Plaintiff’s total exam score, the AP Committee
originally assigned Plaintiff an AP score of 90, based on her two most recent
Performance Evaluation ratings. After Plaintiff protested that her “Very Good +” ratings
should have yielded an AP score of 95, the Department raised her score, but the increase
still placed Plaintiff in Band 3 of the applicant rankings. In compliance with the
County’s Civil Service Rules, the open positions were filled by four applicants whose
total exam scores placed them in Band 2—the highest ranking achieved by any applicant
in 2008. This evidence, all of which is uncontroverted, would permit a trier of fact to
find, more likely than not, that Plaintiff was denied the promotion due to her low
examination score—not because of her race or marital status. (See Guz, supra,
24 Cal.4th at p. 357; Scotch, supra, 173 Cal.App.4th at pp. 1004-1006.)
       Once the Department established a legitimate nondiscriminatory reason for its
decision, the burden shifted to Plaintiff to present evidence that the Department’s stated
reason was pretextual or that the Department acted with discriminatory animus. Plaintiff
failed to meet this burden. Though she quarreled with aspects of the application process,
Plaintiff has never offered any evidence to suggest that race or marital status, as opposed
to her low exam score, was a probable reason for the Department’s decision. For
instance, Plaintiff points to the conversation she had with Catlow as evidence that the AP
Committee lowered her AP score to 90 from the score of 100 that Catlow, Plaintiff’s
supervisor, had recommended. But Plaintiff offered no evidence as to why the AP
Committee purportedly lowered her score, let alone evidence to suggest that the decision
was the result of discriminatory animus. Indeed, in her deposition testimony concerning
the conversation with Catlow, Plaintiff said she was upset by the fact that members of the




                                            10
AP Committee, who did not supervise her work, had lowered her score—not that she
believed race or marital status factored into the decision.4
       Plaintiff also points to the fact that she was “never allowed to review her [multiple
choice] examination to see what errors she made, [and] was not provided with the answer
key or correct responses to see whether the written test was score[d] objectively.” But
here too, while Plaintiff quarrels with the examination procedure, she offers nothing—
beyond speculation—to suggest discriminatory animus was the cause of her low test
score. (See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735
(Martin) [for the purpose of averting summary judgment by showing the employer’s
stated reason was untrue or pretextual, “speculation cannot be regarded as substantial
responsive evidence”].) Notably, when Plaintiff raised the issue in her protest to the Civil
Service Commission, Plaintiff was concerned about the “disparity between all of the
examinees’ written examination scores and the AP scores of those same candidates”
(italics added)—not that she had been singled out due to her race or marital status.
       Finally, Plaintiff contends there has been disparate treatment of African
Americans and unmarried employees in the Attorney III promotion process. In that
regard, Plaintiff cites evidence that there are 10 African American attorneys in the
Department, but only three have been promoted to Attorney III or higher. Similarly,
Plaintiff contends, without any evidentiary support, that there are only two unmarried
employees in Attorney III positions, which she argues is “a very small percentage given
the percentage of single and married [people] in society at large.”5 Apart from these bare

4
      In any event, the issue concerning Plaintiff’s AP score is not material. The
undisputed evidence shows that, due to Plaintiff’s low score on the multiple choice
examination, she still would have placed in Band 3, even if her AP score had been 100.
5
        There are several problems with this contention from an evidentiary standpoint.
First, the only evidence in the record concerning the number of unmarried employees
promoted to Attorney III came from Tatiana Moskova’s declaration in support of the
Department’s summary judgment motion. In her declaration, Moskova testified that
(1) the Department does not keep track of the marital status of employees; (2) she
nevertheless knew of at least five unmarried employees promoted to Attorney III; and
(3) one of those unmarried employees was promoted in 2008, as part of the same

                                             11
figures, Plaintiff offers no explanation as to how or why the Department’s promotion
procedures have caused this purported disparity.
       Contrary to Plaintiff’s apparent premise, raw statistical data is alone insufficient to
establish disparate treatment. In addition to an adverse impact, a plaintiff also must
demonstrate that “the challenged policy was chosen ‘because of its effect on members of
a protected class.’ ” (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 824
(Frank).) Thus, where the employer has established a plausible nondiscriminatory reason
for its decision, the employee cannot create a triable issue merely by showing the
decision negatively impacted a protected class. (See Guz, supra, 24 Cal.4th at pp. 366,
370 [where employer made showing that plaintiff’s discharge was based on non-age-
related reasons, plaintiff’s “raw age comparisons” failed to create a triable issue]; Martin,
supra, 29 Cal.App.4th at pp. 1734-1735[statistics indicating an increase in terminations
of employees over 40 was insufficient to forestall summary judgment in the face of
employer’s evidence of “valid and fair procedures validly and fairly applied without
regard to [plaintiff’s] age”].)
       As we have discussed, the Department established that its decision to deny
Plaintiff’s promotion was made through a competitive, and largely objective, application
process. Plaintiff’s raw statistical data, unmoored to any evidence that the process was
instituted to adversely affect African Americans or unmarried employees, was




competitive application process in which Plaintiff participated. Further, Plaintiff’s
“percentage” figures are essentially speculative, because there is no evidence concerning
the marital status of the 100-employee base pool. As the Department observes, “[t]his
information is critical for obvious reasons; e.g., two people out of 100 is not probative of
disparate treatment if the 98 other constituents of the sample population are all married.”
Likewise, Plaintiff’s comparison to the “percentage of single and married [people] in
society at large” is hardly probative, since Plaintiff offered no evidence of what that
percentage is.


                                             12
insufficient to avert summary judgment on a theory of disparate treatment.6 (See Frank,
supra, 149 Cal.App.4th at pp. 824, 833; Martin, supra, 29 Cal.App.4th at pp. 1734-1735.)
              c.       The undisputed evidence establishes Plaintiff was transferred to
                       correct her out-of-class assignment; Plaintiff failed to adduce
                       evidence of racial discrimination or retaliation
       The three-stage McDonnell Douglas test applies to FEHA retaliation claims as
well. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109
(Loggins).) Thus, even without challenging the plaintiff’s prima facie case, an employer
moving for summary judgment can satisfy its burden by producing evidence showing a
legitimate non-retaliatory reason for the alleged adverse employment action. (Id. at
p. 1109) Once this showing is made, “the burden shifts . . . to the employee to provide
‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or
pretextual.” (Ibid.)
       Plaintiff claims she was transferred to South Los Angeles because of her race and
in retaliation for filing a protest with the Civil Service Commission. The Department’s
uncontested evidence showed Plaintiff was transferred to remedy an out-of-class
assignment, pursuant to a County Code provision requiring the Department to take
immediate corrective action once it learns an employee is working out-of-class. This
evidence was sufficient to shift the burden to Plaintiff to raise a triable issue material to
the Department’s plausible non-retaliatory reason for the transfer decision.



6
       For the same reason, Plaintiff’s reliance on the deposition testimony of Robert
Woodard, another African American employee who has not been promoted to
Attorney III, is misplaced. Woodard’s testimony discloses that although he ranked in
Band 1 on an oral examination administered in 2002, no one out of any of the bands was
promoted that year. When asked if he felt he had been discriminated against in that
examination, Woodard responded he was “uncertain” why he was not promoted. At best,
Woodard’s testimony raises speculation as to why he was not promoted. More to the
point, his testimony is immaterial to the Department’s showing that Plaintiff was not
promoted because of her low test score on an objective multiple choice examination.
(See Martin, supra, 29 Cal.App.4th at pp. 1734-1735.)


                                              13
       Plaintiff does not dispute that the Department was required to take corrective
action to remedy her out-of-class assignment. Nevertheless, Plaintiff argues pretext can
be inferred because it would have been as easy to promote her to Attorney III since she
was “successfully working in the position” for years. We disagree.
       “ ‘A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory
reasons or substitute [her] business judgment for that of the employer. Provided that the
proffered reason is one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason.’ ” (Hicks v. KNTV Television, Inc. (2008)
160 Cal.App.4th 994, 1011.) Thus, it is not enough to argue the Department could have
taken some other action to accomplish what was undisputedly a nondiscriminatory and
non-retaliatory purpose—i.e., complying with the County Code. To avert summary
judgment, Plaintiff was required to present evidence showing that this stated purpose,
more likely than not, was merely a pretext for discrimination and retaliation. (Loggins,
supra, 151 Cal.App.4th at p. 1108.) Plaintiff’s contention that it would have been as easy
to promote her to achieve the Department’s legitimate purpose is not evidence of pretext.
              d.     Absent evidence of actual discrimination, Plaintiff cannot maintain a
                     failure to prevent/correct discrimination claim
       Government Code section 12940, subdivision (k) makes it unlawful for an
employer to “fail to take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” Not surprisingly, “courts have required a finding of actual
discrimination or harassment under FEHA before a plaintiff may prevail under section
12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006)
38 Cal.4th 914, 925, fn. 4; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th
280, 289 [endorsing trial court’s “commonsense approach,” reasoning “ ‘[T]here’s no
logic that says an employee who has not been discriminated against can sue an employer
for not preventing discrimination that didn’t happen, for not having a policy to prevent
discrimination when no discrimination occurred . . . .’ ”].)



                                             14
       We need not belabor this point. Plaintiff concedes that reversing the trial court’s
rulings on Plaintiff’s race or marital status discrimination claims is a necessary predicate
to reversing the court’s ruling on her failure to prevent discrimination claim. Because we
have concluded Plaintiff failed to raise a triable issue on her discrimination claims, it
follows that she cannot maintain an action for failure to prevent discrimination.
       2.     The Trial Court Did Not Abuse Its Discretion in Granting the Department’s
              Attorney Fee Motion
              a.      The Department timely moved for attorney fees
       Plaintiff contends the trial court lacked jurisdiction to award attorney fees because
the Department purportedly failed to bring its motion within the time provided by rule
3.1702 of the California Rules of Court. Plaintiff is mistaken. As a preliminary matter, it
is settled that the time limitation set out in rule 3.1702 is not jurisdictional in character
and a trial court has broad discretion in allowing relief from a late filing where there is no
showing of prejudice to the opposing party. (Gunlock Corp. v. Walk on Water, Inc.
(1993) 15 Cal.App.4th 1301, 1304; Hoover Community Hotel Development Corp. v.
Thomson (1985) 168 Cal.App.3d 485, 487-488.) Here, however, we need not address
whether prejudice was shown, because the record establishes the Department’s motion
was timely.
       California Rules of Court, rule 3.1702(b)(1) provides: “A notice of motion to
claim attorney’s fees for services up to and including the rendition of judgment in the
trial court . . . must be served and filed within the time for filing a notice of appeal under
rules 8.104 and 8.108.” Rule 8.104, subdivision (a)(1) specifies that a notice of appeal
must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves
“a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the
judgment, showing the date either was served”; (B) 60 days after a party serves “a
document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment,
accompanied by proof of service”; or (C) 180 days after entry of judgment.
       Plaintiff contends the 60-day clock started running on September 18, 2012, when
the superior court clerk mailed a minute order that read “Judgment is signed, filed and


                                               15
entered this date.” The relevant legal authorities dispel this contention. Due to its
jurisdictional character, rule 8.104, from which rule 3.1702 borrows its time limitations,
has been strictly construed to adhere to the legislative purpose behind the statute. As the
court explained in 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666,
672, “Since the time within which an appeal must be filed is jurisdictional, rules that
measure that time must stand by themselves without embroidery. The Judicial Council
has promulgated a rule to guide counsel and courts: if the clerk sends out a document
styled ‘notice of entry’ of judgment . . . , or sends out a date-stamped copy of the
judgment . . . , the [first 60-day period under rule 8.104] starts to run. Otherwise it does
not.” The minute order upon which Plaintiff premises her timeliness argument was
neither entitled “Notice of Entry,” nor did it include a date-stamped copy of the
judgment. Hence, the minute order did not start the 60-day clock on the Department’s
time to file its attorney fee motion. (See Alan v. American Honda Motor Co., Inc. (2007)
40 Cal.4th 894, 898, 905 [minute order mailed by the clerk, entitled “ ‘RULING ON
SUBMITTED MATTER/MOTION FOR CLASS CERTIFICATION’ ” did not
commence 60-day period for filing a notice of appeal from the order].)
       On November 21, 2012, the Department served notice of entry of judgment. On
December 12, 2012, well within the 60-day period, the Department filed and served its
timely motion for attorney fees.
               b.    The trial court properly exercised its discretion
       Government Code section 12965 authorizes an award of attorney fees and costs to
the prevailing party in any action brought under FEHA. The statute provides, in pertinent
part, “In civil actions brought under this section, the court, in its discretion, may award to
the prevailing party, including the department, reasonable attorney’s fees and costs,
including expert witness fees.” (Gov. Code, § 12965, subd. (b).) Consistent with the
statutory language, we review an award of attorney fees under this section for an abuse of
discretion. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387
(Cummings).)



                                              16
       Due to the symmetry between California and federal antidiscrimination statutes,
California courts have adopted the principles developed by federal courts in employment
discrimination claims arising under Title VII of the federal Civil Rights Act. (Guz,
supra, 24 Cal.4th at p. 354.) In Christiansburg Garment Co. v. EEOC (1978) 434 U.S.
412 (Christiansburg), the United States Supreme Court set forth the standard trial courts
must use in awarding attorney fees to a prevailing defendant in an employment
discrimination case. In view of the purpose of the fee provision in the federal statute—to
“ ‘make it easier for a plaintiff of limited means to bring a meritorious suit’ ” (id. at
p. 420)—the Christiansburg court reaffirmed that a prevailing plaintiff “ ‘should
ordinarily recover an attorney’s fee unless special circumstances would render such an
award unjust.’ ” (Id. at pp. 416-417.) However, because the “equitable considerations
counseling an attorney’s fee award to a prevailing Title VII plaintiff . . . are wholly
absent in the case of a prevailing Title VII defendant” (id. at p. 418), the court held a
defendant should be awarded attorney fees “ ‘not routinely, not simply because he
succeeds, but only where the action brought is found to be unreasonable, frivolous,
meritless or vexatious.’ ” (Id. at p. 421.) The Christiansburg court explained “the term
‘meritless’ is to be understood as meaning groundless or without foundation, rather than
simply that the plaintiff has ultimately lost his case.” (Ibid.; see Cummings, supra,
11 Cal.App.4th at pp. 1387-1388; Bond v. Pulsar Video Productions (1996)
50 Cal.App.4th 918, 921-923.)
       Here, the trial court found that the evidence adduced in connection with the
Department’s summary judgment motion established “Plaintiff’s lawsuit was
unreasonable and without foundation.” In making this finding, Plaintiff contends the trial
court “confuse[d] a non-meritorious case with one that is frivolous or baseless.”
We disagree.




                                              17
       This was not a case of “post hoc reasoning” by the trial court, where the lack of
foundation finding was premised on “[d]ecisive facts [that did] not emerge until
discovery or trial.” (Christianburg, supra, 434 U.S. at p. 422.) On the contrary, as the
record presented to the trial court demonstrates, in 2008, Plaintiff was fully informed of
the competitive application procedure used to award the four open Attorney III
promotions. Though Plaintiff challenged her AP score—principally on the ground that
the AP Committee had no direct supervision over her work—she conceded that the
multiple choice portion was neutrally administered and applied to “all examinees,”
without regard to race or marital status. And, before filing her complaint, Plaintiff was
well-aware that her low multiple choice examination score had been the sole cause for
her ranking in Band 3, which put her out of contention for the open positions.
       Similarly, at the time of her transfer, Plaintiff was aware that the transfer was
necessary to comply with the County Code mandate concerning out-of-class placements.
Though Plaintiff argued the Department should have simply promoted her to Attorney
III—notwithstanding her low-ranking in the race-neutral application process—she
concedes the Department transferred her to comply with the County Code. All told, the
record sufficiently supports the trial court’s finding that Plaintiff’s lawsuit was
unreasonable and without foundation at its inception. We find no abuse of discretion in
the court’s decision to award the Department half the attorney fees it incurred defending
this lawsuit.7




7
       Plaintiff does not challenge the amount of the fee award on appeal.


                                              18
                                    DISPOSITION
      The judgment is affirmed. The defendant County of Los Angeles Child Support
Services Department is awarded its costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, J.
We concur:




                    KLEIN, P. J.




                    ALDRICH, J.




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