APPEAL from judgment and order of the Superior Court of Los Angeles County, William F. Fahey, Judge. (Los Angeles County Super. Ct. No. BC441150)
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant George Rickards sued respondent United Parcel Service, Inc. (UPS) for violating the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court granted UPS's summary judgment motion on the sole ground that Rickards did not file a verified complaint with the Department of Fair Employment and Housing (DFEH) and thus failed to satisfy this jurisdictional prerequisite for filing a lawsuit under FEHA (Gov. Code, § 12960, subd. (b)). In the published portion of this opinion, we conclude that the complaint Rickards' attorney filed through DFEH's online automated system was sufficient under FEHA. In the unpublished portion of the opinion, we affirm the summary judgment because Rickards failed to raise a triable issue of material fact on his FEHA claims against UPS. We also conclude in the unpublished portion of the opinion that the trial court did not abuse its discretion in awarding respondent Bob Esqueda $40,000 in attorney fees upon granting Esqueda's unopposed summary judgment motion and finding that Richards' refusal to dismiss the age and disability harassment claims against Esqueda was unreasonable.
FACTUAL AND PROCEDURAL SUMMARY
Rickards worked as a full-time package driver for UPS. On March 18, 2008, he was diagnosed with a lumbar sprain and a muscle spasm after injuring his back on the job. He was released back to work with the medical restriction that his daily shift be limited to eight hours. Two days later, on March 20, the restriction was changed to no lifting, pulling or pushing more than 10 pounds.
According to Rickards, Esqueda, who managed the UPS center where Rickards worked, reacted angrily when he learned of Rickards' back injury and did not take him to see a doctor immediately. He insisted that Rickards take online safety tests first. Esqueda did not comply with Rickards' medical restrictions, assigning him to long routes and to a pre-load shift at 3:30 a.m. that required lifting packages. Rickards overheard Esqueda telling someone in the UPS human resources office that Rickards was feigning his injury and making a false worker's compensation claim, and that Esqueda wanted to fire him. Esqueda also told Rickards he could not work as a driver any longer and offered to transfer him to another position within the company. When Rickards refused to sign the paperwork, Esqueda placed him on a worker's compensation leave of absence from March 21 to April 10. On April 10, Rickards returned to work in his regular position with no restrictions.
After Rickards returned from his leave of absence, his truck was audited daily for at least a month or two. Supervisor Lam Phaykaisorn followed him five or six times over a few weeks looking for infractions, and Rickards was written up for not wearing a seat belt, not closing his truck door, calling in sick, and misdelivering a package. He was assigned extra work and had to work longer shifts.*fn2
More than a year later, on the morning of August 28, 2009, Rickards received an award for 20 years of safe driving. That same morning, he asked Phaykaisorn, his acting on-road supervisor for the day, to relieve him of some of the delivery stops at schools on his route because they interfered with the number of stops per hour he was expected to make. Phaykaisorn refused to do so and ordered Rickards to start his route.
Instead, Rickards went to the company office to check on his new uniform. He was talking to another driver when Phaykaisorn came into the office and confronted him about not having left for his route. Rickards headed toward his truck and did not stop when Phaykaisorn called him back into the office. Raising his voice, Phaykaisorn followed Rickards, got in front of him, and placed a hand on Rickards' chest to stop him. In response, Rickards told Phaykaisorn, "Get out of my face or I'll hit you." Rickards agreed to return to the office after Phaykaisorn threatened to fire him if he drove off.
Esqueda interviewed Rickards and Phaykaisorn about the incident and terminated Rickards for unprofessional conduct and unprovoked assault on a supervisor. Rickards' grievance of his termination was arbitrated, and on December 12, 2009, the arbitrator found that UPS had had just cause to terminate him.
On February 26, 2010, Rickards' attorney filed a FEHA complaint on Rickards' behalf through DFEH's automated online system. The system required that information be verified under penalty of perjury but did not require an actual signature. Rickards' attorney clicked the "CONTINUE" prompt on a screen containing a declaration under penalty of perjury about the truth of the complaint he was submitting. As we explain later, he thus verified the complaint. DFEH's automated system issued an automatic right-to-sue letter.
Rickards then filed a lawsuit against UPS, Esqueda, and Doug Sherman (his regular on-road supervisor), alleging six causes of action under FEHA: (1) disability discrimination, (2) age discrimination, (3) harassment on the basis of disability, (4) harassment on the basis of age, (5) retaliation for complaining about disability discrimination and harassment, and (6) retaliation for complaining about age discrimination and harassment. The individual defendants were named on the causes of actions for harassment based on disability and age. Sherman was dismissed from the suit in December 2010.
In January 2011, Esqueda's counsel demanded that Rickards dismiss Esqueda because Esqueda's personnel management actions were not evidence of harassment. She received no immediate response. In February, UPS and Esqueda filed separate summary judgment motions. In April, Rickards' counsel conditioned Esqueda's dismissal on a waiver of fees and costs and an agreement from UPS that the case would not be removed to federal court. UPS did not agree to the latter condition, and Esqueda was not dismissed from the suit. The court granted Esqueda's unopposed summary judgment motion. Esqueda then filed a motion for attorney fees, which Rickards opposed. The court awarded Esqueda fees in the amount of $40,000, finding that the lawsuit against him was groundless and unreasonable and was maintained in subjective bad faith to avoid removal of the lawsuit against UPS to federal court.
The court granted summary judgment for UPS based on Rickards' failure to file a verified DFEH complaint. After his motion for a new trial against UPS was denied, Rickards appealed from the judgment in favor of UPS, the order denying his motion for a new trial, and the order awarding attorney fees to Esqueda.
Summary judgment is proper when no triable issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving defendant meets its burden by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Id., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or defense. (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).)
We review the trial court's decision on a summary judgment motion de novo, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) If the trial court did not expressly rule on specific evidentiary objections, "it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal." (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 (Reid).)*fn3
The trial court granted UPS's summary judgment motion on the ground that Rickards' failure to file a verified DFEH complaint was a jurisdictional defect. It is undisputed that Rickards' attorney filed a form complaint through DFEH's automated online system on Rickards' behalf and received an immediate right-to-sue letter. At his deposition, Rickards testified he did not know anything about the DFEH complaint. In declarations, Rickards and his attorney stated that the attorney was authorized to file the complaint on ...