Sepah v. County of L.A. Dept. of Mental Health CA2/5 ( 2021 )

Filed 3/25/21 Sepah v. County of L.A. Dept. of Mental Health 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
TORANG SEPAH, B297642
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC622387)
v.
COUNTY OF LOS ANGELES,
DEPARTMENT OF MENTAL
HEALTH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Malcolm H. Mackey, Judge. Affirmed.
Gutierrez, Preciado & House, Calvin House and Nohemi
Gutierrez Ferguson, for Defendant and Appellant.
Benham-Baker Legal, Hillary Benham-Baker, for Plaintiff
and Respondent.
Torang Sepah, M.D. (Sepah) sued her former employer, the
County of Los Angeles (County), for violation of the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et
seq.1) and other alleged wrongs. The trial court summarily
adjudicated the FEHA claims in the County’s favor and there
were defense verdicts on the remaining causes of action in jury
and court trials. The County then asked the court to award it
attorney fees, relying on a FEHA provision that authorizes such
an award to a defendant only for claims that are frivolous or
without foundation. The trial court denied that motion and the
County pursued an appeal—even though by then we had
determined, in resolving Sepah’s prior appeal, that she raised a
triable issue of material fact on her FEHA retaliation claim and
that reversal of summary adjudication on her defamation claim
was required. (Sepah v. County of Los Angeles (Mar. 2, 2020,
B290775 [nonpub. opn.]) (Sepah I).) We accordingly notified the
County we were considering imposing sanctions for pursuing a
frivolous appeal and we now decide that question, which of course
requires us to also address the merits of the County’s appeal.
I. BACKGROUND2
A. The Lawsuit and the Prior Appeal
Sepah sued the County after she was terminated from her
position as a jail psychiatrist. (Sepah I, supra, B290775 at 2-3.)
1
Undesignated statutory references that follow are to the
Government Code.
2
On our own motion, we take judicial notice of the appellate
record in Sepah I and of our unpublished opinion in that case.
(Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)
2
In her operative complaint, Sepah alleged three claims under
FEHA: two discrimination-based claims (gender discrimination
and a failure to prevent discrimination) and a retaliation claim.
(Id. at 3.) Sepah also asserted a number of other causes of action
including two whistleblower retaliation claims (one pursuant to
Labor Code section 1102.5, the other under Health and Safety
Code section 1278.5) and a defamation claim. (Ibid.)
Before trial, the County moved for summary judgment or,
in the alternative, summary adjudication on each cause of action.
The trial court granted the County’s motion in part, summarily
adjudicating the FEHA discrimination and retaliation claims and
the defamation claim, but allowing the non-FEHA retaliation
claims to go to trial. (Sepah I, supra, B290775 at 3, 28-29.) A
jury found against Sepah on the Labor Code claim and the trial
court ruled in favor of the County on the Health and Safety Code
cause of action after a bench trial. (Id. at 4-5.)
B. The County’s Motion for Attorney Fees
After judgment was entered in its favor on all causes of
action, the County sought to recover its costs and attorney fees
under FEHA. The County argued it was entitled to all of its
attorney fees—totaling in excess of $500,000 and including work
done in defense of both the FEHA and non-FEHA claims—
because Sepah’s entire lawsuit was frivolous, brought in bad
faith, and prosecuted without reasonable cause.
The trial court granted Sepah’s motion to strike the
County’s costs request because her FEHA and non-FEHA claims
were based on the same allegations of “intertwined misconduct.”
In view of its earlier ruling which allowed the non-FEHA
retaliation claims to survive summary adjudication, the trial
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court found Sepah presented colorable claims and had an
objective basis for believing her claims had potential merit.
Two weeks later, on November 6, 2018, the trial court
denied the County’s motion for attorney fees, also in its entirety.
After referencing its earlier ruling on costs, the court re-affirmed
its finding that the FEHA and non-FEHA claims were
“intertwined.” Because Sepah’s claims, some of which were
ultimately resolved by trial, were factually entwined, the court
expressly found her lawsuit was “not frivolous, vexatious or
unreasonable.”
C. Sepah’s Appeal of the Judgment and the Prosecution
of This Appeal
Sepah appealed the judgment entered against her, and in
an opinion issued in March 2020, we reversed the judgment in
part. We affirmed the judgment as to the FEHA and retaliation
claims, but specifically as to the FEHA retaliation claim, we did
conclude the trial court erred in summarily adjudicating that
claim in the County’s favor. (Sepah I, supra, B290775 at 26-31
[explaining the evidence supporting that claim was the same
evidence that sufficed to establish a material issue of fact
requiring trial on her whistleblower retaliation claims under the
Labor Code and Health and Safety Code].) Only because Sepah
did not demonstrate prejudice resulting from the erroneous
summary adjudication ruling did we decline to reverse on that
ground. (Id. at 30-31.) We did reverse summary adjudication of
the defamation claim, though, and we remanded for further
proceedings to resolve that cause of action. (Id. at 32-36.)
In the meantime, the County had noticed an appeal of the
trial court’s ruling denying its motion for attorney fees for
4
prosecuting a frivolous lawsuit. The County’s short opening brief
was filed in June 2020, and sole paragraph of analysis in the
brief argued as follows (exclusive of citations to the record):
“Sepah was aware from the onset of the litigation, pursuant to
the allegations in her Complaint, that the termination of her
locum tenens assignment was based on the anonymous complaint
by her coworkers. She never presented any evidence to the
contrary. Although she denied engaging in the conduct that was
the subject of the anonymous complaint at her deposition, several
witnesses testified to the contrary. At trial, she finally admitted
to some of the conduct identified in the letter. Her own emails
provided further evidence of inappropriate conduct.”
After the filing of the respondent’s and reply briefs, this
court gave notice it was considering imposing sanctions of $8,500
for prosecuting a frivolous appeal. The County filed an
opposition to imposition of sanctions, as invited by our notice.
The opposition argued sanctions were not warranted “[b]ecause
[our] statement about the trial court’s ruling on the summary
judgment motion was not necessary to [our] decision, and because
surviving a summary judgment motion by itself does not foreclose
an award of attorney[ ] fees . . . .” At the same time, the
opposition acknowledged the County should have addressed our
analysis in Sepah I “head on in the opening brief,” asked us to
consider “some lesser sanction” if sanctions were imposed, and
stated our notice “was enough to instill in counsel the need to
consider carefully the merits of appeals and arguments that he
presents to this Court.”
We set the matter for oral argument, combining the issue of
sanctions with the merits of the appeal.
5
II. DISCUSSION
The trial court correctly denied the County’s motion for
attorney fees. Sepah’s FEHA and non-FEHA claims were
factually intertwined, and the County does not contend
otherwise. Because Sepah’s non-FEHA retaliation claims
survived summary adjudication and each was ultimately tried to
verdict, the trial court did not abuse its discretion in determining
the lawsuit—including the factually-intertwined FEHA claims—
was not frivolous, unreasonable, or groundless when brought
(and never became so thereafter).
Although Sepah’s lawsuit was not frivolous, the same
cannot be said for this appeal. The County’s opening brief totals
11 pages (exclusive of the caption page, certificate of interested
parties, and tables of contents and authorities), and the
argument for deeming Sepah’s suit frivolous is presented in a
single paragraph. The opening brief was filed months after we
issued our opinion in Sepah I and yet it includes no meaningful
discussion of that opinion—including its conclusion that Sepah
raised a triable issue of material fact on her FEHA retaliation
claim and the intertwined facts that underlie all the complaint’s
retaliation claims, some of which required trials to resolve.
Under these circumstances, no reasonable attorney could believe
there was merit to pursuing this appeal. We shall therefore
sanction the County’s attorney of record for prosecuting a
frivolous appeal.
A. The Denial of the Attorney Fee Award Was Proper
Attorney fees are allowable as costs to a prevailing party
when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5,
subd. (a)(10)(B).) FEHA authorizes courts to award prevailing
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parties their reasonable attorney fees and costs. (§ 12965, subd.
(b).) However, a prevailing defendant in a FEHA action may
recover its fees and costs only if the trial court “finds the action
was frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.” (Ibid.;
Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th
97, 115 [a prevailing FEHA defendant “should not be awarded
fees and costs unless the court finds the action was objectively
without foundation when brought, or the plaintiff continued to
litigate after it clearly became so”]; accord, Huerta v. Kava
Holdings, Inc. (2018) 29 Cal.App.5th 74, 79-81.)
“We review the trial court’s denial of attorney fees to [the
County] for abuse of discretion.” (Arave v. Merrill Lynch, Pierce,
Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 545.)
The trial court, which presided over the motion for
summary judgment and both trials, found Sepah’s FEHA claims
(that did not survive summary adjudication) were factually
intertwined with her non-FEHA retaliation claims (that did
survive summary adjudication). On appeal, the County does not
challenge or even acknowledge, the trial court’s intertwined
finding.
In view of the trial court’s determination that Sepah’s
FEHA and non-FEHA claims were factually intertwined and that
two of those non-FEHA claims survived summary adjudication
and were tried and resolved on their merits, the trial court
correctly concluded the lawsuit was not objectively without
foundation when brought or thereafter. That is also consistent
with our discussion of the issues in Sepah I, particularly our
resolution of the FEHA retaliation issue. The trial court was
therefore correct to deny the motion for attorney fees.
7
In so holding, we recognize merely surviving summary
judgment does not automatically render a FEHA plaintiff
immune to an award of attorney fees. (Rosenman v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91
Cal.App.4th 859, 867 [rejecting a “bright line shielding survivors
of summary judgment” in FEHA cases from attorney fee
awards].) However, the conditions under which a FEHA plaintiff
would likely be ordered to pay a prevailing defendant’s attorney
fees after surviving summary judgment are not present here.
(Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 920
& fn. 3 [rejecting unsuccessful FEHA plaintiff’s argument that he
should not have to pay the prevailing defendant’s attorney fees
because plaintiff survived summary judgment on procedural
grounds only]; Daramola v. Westinghouse Elec. Corp. (W.D.Pa.
1995) 872 F.Supp. 1418, 1419-1420 [awarding prevailing
defendant its attorney fees in an employment discrimination
action, because even though plaintiff survived summary
judgment it was revealed at trial that the plaintiff “fabricated
evidence and lied to the court”].) Here, Sepah’s whistleblower
retaliation claims survived summary adjudication because they
raised material issues of disputed fact, not because the County’s
motion was procedurally deficient or because the evidence Sepah
relied on to avoid summary adjudication was fabricated.
B. Sanctions Are Appropriate Because This Appeal is
Frivolous
We have the authority to impose sanctions on our motion
where an appellant has prosecuted a frivolous appeal. (Cal.
Rules of Court, rule 8.276(a)(1).) “[A]n appeal should be held to
be frivolous only when it is prosecuted for an improper motive—
8
to harass the respondent or delay the effect of an adverse
judgment—or when it indisputably has no merit—when any
reasonable attorney would agree that the appeal is totally and
completely without merit.” (In re Marriage of Flaherty (1982) 31
Cal.3d 637, 649 (Flaherty); accord, In re Reno (2012) 55 Cal.4th
428, 512-513.) “An appeal taken for an improper motive
represents a time-consuming and disruptive use of the judicial
process. Similarly, an appeal taken despite the fact that no
reasonable attorney could have thought it meritorious ties up
judicial resources and diverts attention from the already
burdensome volume of work at the appellate courts.” (Flaherty,
supra, 31 Cal.3d at 650.) Whether an attorney “acted in an
honest belief there were grounds for appeal makes no difference if
any reasonable person would agree the grounds for appeal were
totally and completely devoid of merit.” (Kleveland v. Siegel &
Wolensky, LLP (2013) 215 Cal.App.4th 534, 556-557.)
In order to avoid having a “chilling effect on the assertion of
litigants’ rights on appeal,” the power to impose sanctions for
prosecuting frivolous appeals “should be used most sparingly to
deter only the most egregious conduct.” (Flaherty, supra, 31
Cal.3d at 650-651.) Courts consider “the degree of objective
frivolousness and delay[,] and the need for discouragement of like
conduct in the future” when determining the appropriate amount
of sanctions. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33-34.)
Three months before the County filed its perfunctory
opening brief, we issued our opinion in Sepah I, which in large
part resolved the question presented in this appeal, i.e., whether
Sepah’s lawsuit was objectively without foundation (the answer,
of course, is no). The County, however, continued to prosecute
this appeal and filed an opening brief that did not meaningfully
9
discuss Sepah I, including its resolution of the FEHA retaliation
claim.3 Indeed, even after Sepah’s respondent’s brief highlighted
our decision in Sepah I, the County’s three-and-a-half page reply
brief (almost a page of which is a word-for-word cut and paste job
of the sole paragraph of analysis in the opening brief) still
ignored the issue. The combination of the conscious disregard of
Sepah I and the slapdash briefing persuades us the County
knew—and any reasonable attorney would know—that this
appeal was frivolous. It also suggests the County brought the
appeal primarily for its vexatious effect.
That said, in view of counsel’s contrition when we gave
notice we were considering imposing sanctions, we believe
sanctions in the amount of $900, payable to Sepah’s counsel, will
satisfy the objective of deterrence and vindicate the public
interest in the orderly administration of justice. That is what we
shall order.
DISPOSITION
The order denying the County’s motion for attorney fees is
affirmed. Sepah is awarded her costs on appeal. For prosecuting
3
Although the County’s focus in its opening brief was on the
viability of the FEHA claims, it also generally asserted (without
any analysis of the non-FEHA claims) that Sepah’s entire lawsuit
was frivolous when brought. This contention is belied by the fact
that the non-FEHA retaliation claims survived summary
adjudication and it ignores entirely our holding in Sepah I that
the trial court prejudicially erred by summarily adjudicating the
defamation claim in the County’s favor.
10
a frivolous appeal, the County’s counsel of record, Calvin House,
shall make a $900 sanctions payment to Benham-Baker Legal,
Sepah’s appellate attorneys. The sanctions are to be paid within
15 days of the issuance of the remittitur.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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