IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
March 28, 2012
ERIC BAKER, PLAINTIFF AND APPELLANT,
MULHOLLAND SECURITY AND PATROL, INC., DEFENDANT AND RESPONDENT.
(Los Angeles County Super. Ct. No. BC424703) APPEAL from a judgment and order of the Superior Court of Los Angeles County. Conrad R. Aragon, Judge. Affirmed in part, reversed in part.
The opinion of the court was delivered by: Grimes, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Eric Baker (plaintiff) sued Mulholland Security and Patrol, Inc. (defendant), for retaliation, failure to pay overtime compensation, and failure to maintain records, claiming he was terminated after just 13 days of employment when he complained about discriminatory remarks made at his workplace. The trial court disposed of his retaliation claim by summary adjudication, and the remainder of his claims were dismissed after the parties reached a settlement. The trial court concluded plaintiff was terminated for his poor performance and that plaintiff failed to demonstrate there were triable issues whether defendant's justification for its termination decision was pretextual. Plaintiff filed two appeals, which were consolidated, challenging the judgment on the retaliation claim, as well as the trial court's order awarding expert witness fees to defendant. Finding no error with the summary adjudication of plaintiff's retaliation claim, we affirm the judgment. However, we conclude the trial court applied an erroneous legal standard in awarding defendant its expert witness fees, and that any expert fee award would be an abuse of discretion because plaintiff made a sufficient prima facie showing of retaliation. We therefore reverse the expert fee award.
The following facts are undisputed: Plaintiff began working for defendant on February 18, 2009. After three days of training and seven days working as a security guard for defendant's client, the Heschel School, defendant received its first complaint about plaintiff's job performance. Atanacio "Tony" Guerrero (Guerrero), Heschel's maintenance manager, contacted defendant on March 4, 2009, and complained plaintiff was making personal phone calls and ignoring his duties while on the phone; that he ignored Betty Winn, the head of the Heschel School, when she confronted him about his phone use; and he was rude and unprofessional, and had problems operating the school's security gate. Bruce Ferreira (Ferreira), defendant's account manager for the Heschel School, forwarded the complaints to Daniel Campbell (Campbell), defendant's co-owner and vice president of human resources, who directed Ferreira to write a warning notice. Ferreira wrote the notice on March 4, 2009. He also confirmed the complaints with the client, Ms. Winn, on March 6, 2009, and talked with plaintiff about paying attention to his job duties and not using the phone for personal calls during business hours.
On March 11, 2009, Ferreira received another complaint about plaintiff's job performance. Guerrero informed Ferreira that plaintiff was again on the phone making personal calls, and he had a bad attitude. Ferreira called Campbell to report the complaint, and it was decided that plaintiff should be sent home because the client was very upset. Plaintiff was directed to meet with Campbell the following day. Ferreira drafted another warning notice.
On the evening of March 11, Field Supervisor Mike Powell (the field supervisor, or Powell) emailed members of defendant's management, including Campbell, to report that plaintiff had complained about racist and discriminatory comments by a Heschel employee.
Plaintiff met with Campbell on March 12. They met again on March 18, and plaintiff was terminated at this meeting.
In support of its summary judgment motion, defendant introduced evidence that client complaints about plaintiff's job performance were the reason for the termination. Campbell made the decision to terminate plaintiff before he learned about plaintiff's complaints of discrimination. Campbell decided to terminate plaintiff on March 11, because plaintiff had been employed for only 13 days, was still in his introductory period, and had already received two client complaints. Because serious concerns about plaintiff's job performance arose during the first weeks of his employment, Campbell decided "he was not well suited for the job and would likely run into similar problems if he was reassigned to another client rather than let go." Campbell did not read Powell's email describing plaintiff's complaints of discrimination until after he made the decision to terminate plaintiff. Campbell, as the vice president of human resources, made the company's termination decisions. Although David Rosenberg, defendant's president, may have initially recommended reassigning plaintiff, it was Campbell's job to make the decision, and he believed plaintiff should be terminated. Plaintiff's employment was at will.
Campbell met with plaintiff on March 12 and discussed his performance issues. Plaintiff told Campbell he was on the phone reporting payroll problems and that the gate malfunctioned. Although Campbell had already decided to terminate plaintiff, Campbell agreed to investigate the matters to give plaintiff "closure." Plaintiff's explanation did not change Campbell's decision to terminate plaintiff because even if true, plaintiff was ignoring his duties when the calls were made. At the March 12 meeting, Campbell learned for the first time that plaintiff complained that Guerrero made racist and inappropriate remarks. Campbell directed Ferreira to investigate the incident. Campbell thereafter investigated plaintiff's explanation for being on the phone and discovered he had used the phone to report a payroll issue. He also discovered the gate had at all times functioned properly, and plaintiff had been trained how to use the gate. Campbell met with plaintiff again on March 18 and terminated his employment due to his performance issues.
Plaintiff disputed the truth of defendant's justification, reasoning defendant initially intended to reassign him to another location after receiving client complaints, but decided to terminate him after he reported discriminatory remarks made by Guerrero. He did not dispute that defendant received complaints from its client about his job performance.
Plaintiff introduced evidence that defendants knew about his protected activity before terminating him. On March 11, 2009, plaintiff reported Guerrero's discriminatory comments to his field supervisor and to Campbell. He also made a written report. A string of emails on the evening of March 11 discussed plaintiff's report of discriminatory comments. At 9:09 p.m. on March 11, Powell emailed defendant's management, David Rosenberg, Steven Lemmer, Ferreira, and Campbell, saying that the Heschel School had made complaints about plaintiff's job performance and that plaintiff told Powell "Tony Guerrero has been making racial slurs towards officers."
Powell emailed defendant's management again at 9:30 that evening, relaying that plaintiff told him "he will have to pursue legal action if the work environment he is working in does not change." Plaintiff told Powell "it would be unfair for him to lose his job under these conditions and would have no alternative but legal action if nothing else can be worked out." In response to Powell's email, David Rosenberg emailed his recommendation that plaintiff be sent home with pay for the remainder of his shift, and that he go to the office on March 12 for "reassignment." At 9:54 p.m., Ferreira emailed that he had relieved plaintiff and sent him home. In response, at 9:57 p.m., Campbell requested that Ferreira "have all the info on both incident[s] and we talk about [it] tomorrow."
Plaintiff did not receive copies of any "employee warning notices" relating to his performance issues until he was terminated. Campbell told him "he would see about relocating" plaintiff at their March 12 meeting, but later terminated him.
With its reply brief, defendant introduced additional evidence, consisting of transcripts from the depositions of plaintiff, David Rosenberg, Campbell, and Guerrero, as well as an application for state unemployment benefits filed by plaintiff between March 11 and March 16, claiming he was "laid off due to lack of work." Plaintiff orally objected to this evidence at the hearing on the motion, reasoning he did not have "notice and an opportunity to respond." He also objected to defendant's separate statement filed with its reply brief as an "improper document." No ruling on these objections appears in the record.
The trial court granted defendant's motion for summary adjudication, concluding that defendant set forth a legitimate, nonretaliatory reason for its termination decision. It overruled plaintiff's objections to declarations submitted by Ferreira and Powell. After entry of judgment, defendant moved to recover its expert witness fees, maintaining it was "entitled, by right, to have allowable costs awarded to it as the prevailing party." The trial court granted the motion, and defendant was awarded $2,350 incurred as expert witness fees on the basis that expert witness fees are recoverable by a prevailing Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) defendant even if the action was not " 'unreasonable, frivolous, or vexatious.' "
1. Summary Adjudication
"[T]he party moving for summary judgment [or adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 850.) The party opposing summary adjudication "may not rely upon the mere allegations or denials of its pleadings," but rather "shall set forth the specific facts showing that a triable issue of material fact exists." (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, at p. 850.)
Where summary adjudication has been granted, we review the trial court's ruling de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We consider all the evidence presented by the parties in connection with the motion (except that which was properly excluded) and all the uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We affirm summary adjudication where the moving party demonstrates that no triable issue of material fact exists and that it is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f).)
FEHA prohibits an employer from, among other things, discriminating on the basis of race or physical disability in the terms and conditions of employment. (Gov. Code, § 12940, subd. (a).) FEHA also makes it unlawful "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA]." (Id., § 12940, subd. (h).) To establish a prima facie case of retaliation, plaintiff must show he engaged in a "protected activity," that defendant subjected him to an adverse employment action, and a causal link existed between the protected activity and the defendant's action. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 874.) The burden of establishing a prima facie case of retaliation is fairly minimal, such that the temporal proximity between an employee's protected activity and a subsequent adverse action may satisfy the causation requirement. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 (Arteaga).) If plaintiff establishes a prima facie case of retaliation, the employer must offer a legitimate reason for the adverse employment action, and if the employer does so, the presumption of retaliation disappears, and the burden shifts back to plaintiff to prove intentional retaliation (e.g., that the legitimate reason for the retaliation is pretext or untrue). (Ibid.)
As an initial matter, defendant complains of various defects with plaintiff's appellate brief. Defendant contends that plaintiff's statement of facts is one sided and, therefore, resulted in a waiver of issues raised on appeal. Defendant also maintains that many of plaintiff's record citations are inaccurate and do not support the facts set forth in his brief. Appellants may not include only favorable evidence in their brief. (Cal. Rules of Court, rule 8.204(a)(2)(C).) An appellant's failure to state all of the evidence fairly in its brief waives the alleged error. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) Further, arguments that are not supported by accurate references to the record will be deemed waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Although we agree that some salient facts were omitted from the statement of facts in plaintiff's appellate brief, such as the exceedingly short duration of plaintiff's employment, we reach the merits of plaintiff's appeal, since the de novo standard of review requires our independent review of the evidence in support of and opposition to the summary adjudication motion, the separate statements provide a useful roadmap to the evidence, and the record is not voluminous.
Reaching the merits of plaintiff's appeal, we conclude plaintiff made a sufficient prima facie showing of retaliation. Plaintiff adduced evidence he complained about discriminatory remarks made at his workplace and he was terminated within a week of making his complaint. He also produced evidence supporting a reasonable inference that Campbell, as well as the remainder of defendant's management team, knew about the protected activity before terminating him. A chain of emails was distributed within an hour of plaintiff being removed from the workplace, which discussed plaintiff's complaint about discrimination. "A plaintiff can satisfy his or her initial burden . . . by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388.)
Nevertheless, defendant presented evidence it received two complaints from its client about plaintiff's work performance during the first 13 days of plaintiff's employment. Plaintiff does not dispute that defendant's client complained about him. Customer complaints are evidence of poor work performance sufficient to support a moving defendant's burden of proof on summary judgment. (See Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 68-69, 76-77.) We therefore conclude that defendant met its burden of showing a legitimate, nonretaliatory reason for plaintiff's termination. The burden thus shifted to plaintiff to demonstrate that defendant's claimed reason was not its true reason, and that his termination was motivated by a retaliatory motive. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1195 (Villanueva).)
Pretext may be demonstrated by showing that the proffered reason for the adverse employment action had no basis in fact, did not actually motivate the discharge, or was insufficient to motivate the discharge. An employee must demonstrate such " ' "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reasons for [the termination] that a reasonable trier of fact could rationally find them 'unworthy of credence,' [citation], and hence infer 'that the employer did not act for the [. . . asserted] non-discriminatory reasons.' " ' " (Villanueva, supra, 160 Cal.App.4th at p. 1195.) An employer's proffered reasons do not need to be "correct," or " 'wise, shrewd, prudent, or competent' "; they need only be nonretaliatory. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 (Guz v. Bechtel).) To avoid summary judgment, plaintiff must produce specific and substantial evidence of pretext. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
Plaintiff failed to meet this burden. Plaintiff knew he was on thin ice with defendant's client, Heschel School, at the time he made his report of discrimination, and had just received a second complaint from Heschel staff regarding his work performance. He does not dispute that Heschel was dissatisfied with his performance, but instead speculates that his after-the-fact discrimination complaint was the reason for his termination. However, there is simply no evidence that plaintiff's protected activity influenced defendant's decision to terminate him. Pretext cannot be found simply because of the closeness of the protected activity and the adverse employment action, otherwise plaintiffs could easily manufacture retaliation claims by engaging in protected activity whenever an adverse employment action is threatened. (Arteaga, supra, 163 Cal.App.4th at pp. 353-354.)
Plaintiff points to several facts which he claims support an inference of pretext, such as evidence defendant considered reassigning him but inexplicably changed its mind and terminated him; defendant's investigation of the discrimination was a "sham"; plaintiff never received any discipline or write-ups for his job performance before he made his complaint; and he did not engage in any wrongdoing, because all of his phone calls (about which Heschel complained) were work related. We disagree that any of this evidence is sufficient to establish a triable issue of pretext.
Any escalation of discipline from reassignment to termination is not probative of a retaliatory motive, as the evidence establishes the decision makers knew about the protected activity at the time the alleged promises of reassignment were made. The decision to terminate plaintiff was based on the same set of facts that had occurred when the alleged promise to reassign him was made; thus, defendant had decided plaintiff's performance was so unsatisfactory that employment action was required but had not made a final decision whether reassignment or termination was the proper action.
Similarly, plaintiff's evidence that defendant's investigation of his complaints was a "sham" does not persuade us that the investigation was undertaken to cover up any retaliation. Plaintiff points to Guerrero's deposition testimony where he denies that defendant's management asked if he made any discriminatory comments to plaintiff. However, Guerrero testified he did not "recall" whether Ferreira discussed complaints made by plaintiff, although he did acknowledge being interviewed by Ferreira after plaintiff was removed from the worksite. It is undisputed that plaintiff was interviewed and given an opportunity to explain himself during his March 12 meeting with Campbell. Defendant conducted a sufficient investigation and, under the circumstances, was entitled to determine that plaintiff's complaint was unfounded.
It is also immaterial that plaintiff did not receive any discipline or write-ups prior to his termination (although this fact is disputed by defendant). The evidence clearly shows that plaintiff was aware of the client's complaints about his performance, yet plaintiff presented no evidence that defendant treated him any differently than other employees when it terminated him. Plaintiff received two complaints in the span of a week, after only 13 days of work, and was still in his introductory period of employment. Even if he was summarily dismissed, under these circumstances no inference of retaliation can be drawn.
Lastly, it is irrelevant that plaintiff's business-related calls were the basis of the client complaints. They were not the only basis of the client's dissatisfaction; defendant introduced evidence that the timing of the calls was a problem (plaintiff neglected his duties while making them), and in any event, an employer's proffered reasons do not need to be "correct," or " 'wise, shrewd, prudent, or competent' "; they need only be nonretaliatory. (Guz v. Bechtel, supra, 24 Cal.4th at p. 358.)
Plaintiff also complains of various procedural errors. He contends the evidence of client complaints contained in the declarations of Powell and Ferreira was improper hearsay, and that his objections were erroneously denied. We disagree; the evidence was not introduced to prove the truth of the complaints against plaintiff, but to demonstrate that defendant received complaints from its client. This non-hearsay purpose rendered plaintiff's objections baseless. (Evid. Code, § 1200.) Also, plaintiff takes issue with evidence introduced for the first time with defendant's reply brief. However, there is no indication that the trial court relied on any of this evidence.
Plaintiff further contends the trial court improperly credited Campbell's declaration concerning the reason for plaintiff's termination. Code of Civil Procedure section 437c, subdivision (e) provides that "summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." However, consideration of the evidence contained in the Campbell declaration was well within the trial court's discretion, and no abuse has been demonstrated here. (Violette v. Shoup (1993) 16 Cal.App.4th 611, 621.) This is especially so when plaintiff's own deposition testimony confirmed that the client was unhappy with his performance.
There is no reason to infer from all the evidence before the court that there is any material dispute as to whether defendant's proffered reason for terminating plaintiff was pretextual. Therefore, summary adjudication of plaintiff's retaliation claim was proper.
2. Expert Witness Fees
Plaintiff contends the trial court applied an erroneous legal standard when it determined that expert witness fees may be awarded to a prevailing FEHA defendant without requiring a showing that the plaintiff's claim was frivolous, and that in any event, plaintiff's case was not frivolous. We agree, and therefore reverse the order awarding expert witness fees.
We review the trial court's construction of the law de novo. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) The exercise of the trial court's discretion to award fees is reviewed for an abuse of discretion. (See Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 765-766.)
Code of Civil Procedure section 1032, subdivision (b) entitles the prevailing party in an action to recover certain litigation costs as a matter of right. Code of Civil Procedure section 1033.5, subdivision (a) sets forth the items that are allowable as costs under Code of Civil Procedure section 1032. The allowable items include "[f]ees of expert witnesses ordered by the court." (Code Civ. Proc., § 1033.5 , subd. (a)(8).) Section 1033.5, subdivision (b) limits the items that are allowable as costs, and specifically prohibits fees of expert witnesses not ordered by the court, "except when expressly authorized by law." (Id., § 1033.5, subd. (b), (b)(1).) FEHA permits recovery of expert witness fees, within a court's discretion. (Gov. Code, § 12965, subd. (b) ["the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees"].)
It is well settled that a prevailing defendant in a FEHA action "may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith. [Citation.]" (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985; Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 (Christiansburg).) "[T]he strong equitable considerations supporting an attorney fee award to a prevailing plaintiff--including that fees are being awarded against a violator of federal law, and that the federal policy being vindicated by the plaintiff is of the highest priority--are not present in the case of a prevailing defendant." (Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, 1474.)
The courts of appeal are split about whether this standard applies to an award of ordinary litigation costs to a prevailing FEHA defendant. (Compare Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681 (Perez) ["ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable"] & Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 134-135 (Knight) [same] with Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (Cummings) [Christiansburg standard applies when determining whether to award fees and costs to a prevailing FEHA defendant].)
No California case has specifically addressed the applicability of the Christiansburg standard to the recovery of expert witness fees, as opposed to ordinary litigation costs, by a prevailing FEHA defendant under Government Code section 12965, subdivision (b). The court that has come closest to doing so addressed the issue in dicta. In Holman v. Altana Pharma US, Inc. (2010) 186 Cal.App.4th 262, 279, the court concluded that a prevailing FEHA defendant could recover expert witness fees under Code of Civil Procedure section 998, without making a showing that the Christiansburg standard was satisfied. (Holman, at pp. 281-283.) The court opined, however, that Christianburg was applicable to expert witness fees awarded under Government Code section 12965 (as opposed to Code Civ. Proc., § 998) because federal courts apply the Christiansburg standard not only for attorney's fees, but also for expert witness fees, to prevailing defendants in Title VII cases. (Holman, at p. 280.)
We agree the standard applicable to attorney's fees should apply to expert witness fees for a prevailing FEHA defendant. Expert fees, just like attorney's fees, are not ordinary litigation costs which are routinely shifted under Code of Civil Procedure sections 1032 and 1033.5. Like attorney's fees, expert fees should be treated differently than ordinary litigation costs because they can be expensive and unpredictable, and could chill plaintiffs from bringing meritorious actions. (See, e.g., Perez, supra, 111 Cal.App.4th at p. 681 [" 'Whereas the magnitude and unpredictability of attorney's fees would deter parties with meritorious claims from litigation, the costs of suit in the traditional sense are predictable, and, compared to the costs of attorneys' fees, small.' [Citation.]"].) Just like attorney's fees, expert witness fees authorized by Government Code section 12965 are subject to the trial court's discretion, and are not recoverable as a matter of right, as are other routine litigation expenses. (Compare Gov. Code, § 12965, subd. (b) ["the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees"] with Code Civ. Proc., §§ 1032, subd. (b) ["Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding."] & 1033.5.)
While the plain language of Government Code section 12965, subdivision (b) does not address whether expert witness fees sought by prevailing FEHA defendants are subject to the Christiansburg standard, when the Legislature amended section 12965 in 1999 to provide for the recovery of expert witness fees, it brought California law into alignment with Title VII. (Stats. 1999, ch. 591, § 12, p. 422; 42 U.S.C. § 2000e-5, subd. (k) ["the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs"].) Federal courts have concluded that "[a]attorney's fees and expert witness fees may not be awarded to a prevailing defendant in a Title VII case unless the plaintiff's claim is 'frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.' [Citations.]" (AFSCME v. County of Nassau (2d Cir. 1996) 96 F.3d 644, 646.) "Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz v. Bechtel, supra, 24 Cal.4th at p. 354.)
In this case, the trial court relied on Knight, which concerned ordinary litigation costs, not expert witness fees, in concluding it was not necessary to find the action was frivolous in order to award expert fees to a prevailing defendant. (Knight, supra, 132 Cal.App.4th at pp. 134-135.) Since we find the Christiansburg standard applies to an award of expert witness fees in favor of a prevailing FEHA defendant, the trial court's ruling was erroneous because the court did not find this action was frivolous. 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. (Cummings, supra, 11 Cal.App.4th at p. 1387.) Where some evidence of retaliation is presented, an action will not be deemed frivolous. (Id. at pp. 1389-1390.)
It was not argued in the trial court, or on appeal, that plaintiff's claim was unreasonable, without foundation, or brought in bad faith. Defendant's expert fee motion contended that expert fees may be recovered "even if plaintiff's lawsuit was not 'frivolous, unreasonable or groundless,' " a tacit admission that plaintiff's action was not frivolous. Accordingly, the order awarding defendant its expert witness fees must be reversed.
The judgment is affirmed, and the postjudgment order awarding defendant's expert witness fees is reversed. The parties are to bear their own costs on appeal
CERTIFIED FOR PARTIAL PUBLICATION
WE CONCUR: RUBIN, Acting P. J. FLIER, J.