Santa Clara County Superior Court, Honorable Thomas P. Hansen, Trial Judge (Santa Clara County Super. Ct. No. CV162789).
Attorney for Appellant: Francis Robert, in propria persona
Attorneys for Respondent: Michael T. Lucey, Don Willenburg, Gordon & Rees LLP, San Francisco.
Plaintiff Francis Robert appeals from the trial court's order requiring him to pay $100,000 in attorney's fees to defendant Stanford University (Stanford) after Stanford prevailed in Robert's action under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.). He claims that the court failed to make the requisite written findings, failed to consider his financial condition, and abused its discretion in finding that his FEHA cause of action was " without merit[,] frivolous and vexatious." We affirm.
Robert is an American Indian. He was employed by Stanford from 1997 to 2008. Stanford terminated his employment in 2008 due to his harassment of a female Stanford employee. He had been given several warnings prior to his termination, but he had continued to harass her. His harassment of her led to a restraining order against him, which was upheld on appeal by this court in 2009. Robert initiated this action in 2010. His FEHA cause of action against Stanford alleged that his termination was based on his race. He maintained that Stanford's reliance on his harassment was merely a pretext for racial discrimination.
During discovery, Robert never identified any evidence other than his own testimony that might support his FEHA cause of action. At trial, Robert testified that he believed that those responsible for investigating the harassment and terminating him had discriminated against him based on his " native ancestry." He provided no other evidence in support of his discrimination claim. At the close of evidence, Stanford moved for nonsuit on all causes of action. Robert conceded that he had no evidence to support his discrimination cause of action. He asserted that this was because the court had excluded evidence, but the court noted that all of the excluded evidence was irrelevant to his discrimination claim. The trial court granted Stanford's motion for nonsuit on the FEHA cause of action. It found that there was " some evidence" supporting Robert's retaliation claim and his breach of contract/breach of the implied covenant claim and allowed them to go to the jury. The jury returned a defense verdict.
Stanford incurred over $235,000 in attorney's fees defending against Robert's action, and it filed a motion seeking to recover its attorney's fees in the FEHA action. Robert opposed the motion on the ground that he was " destitute" and that his FEHA cause of action had not been frivolous, groundless, unreasonable, or vexatious. Robert submitted a declaration in support of his opposition in which he claimed that he was unemployed, had no income and no future employment prospects, had spent all of his savings, and had borrowed the maximum amount that he could borrow from his retirement.
At the hearing before the trial court, the court noted that Robert opposed an award of attorney's fees on the grounds that his cause of action was supported by " substantial factual authority" and that he was " impecunious at this time." Stanford argued that Robert's action was " vexatious" and designed to " harass [the victim of his harassment]." It also challenged Robert's claim that he was impecunious and claimed that " [h]e has some assets." The court awarded Stanford attorney's fees. It stated: " I am finding that the FEHA claim was without merit and was frivolous and vexatious. It was a legal theory in search of facts. There were none that were presented." The court also noted that Robert's non-FEHA cause of action had been decided by the jury " in fifteen minutes." Since attorney's fees were not available on the non-FEHA cause of action, the court apportioned fees and awarded Stanford $100,000, which was less than half of the fees it sought. Robert timely filed a notice of appeal. 
Robert's discrimination cause of action was brought under FEHA. (Gov.Code, § 12940.) " In civil actions brought under [FEHA], the court, in its discretion, may award to the prevailing party ... reasonable attorney's fees and costs, including expert witness fees." (Gov.Code, § 12965, subd. (b).) " Despite its discretionary language, however, the statute applies only if the plaintiff's lawsuit is deemed unreasonable, frivolous, meritless, or vexatious.... ‘ " [M]eritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case....’ " ( Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948-949, 84 Cal.Rptr.3d 526, fn. omitted.) " [A] plaintiff's ability to pay must be considered before awarding attorney fees [in a FEHA action] in favor of the defendant." ( Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203, 73 Cal.Rptr.3d 343.) A trial court awarding attorney's fees to a prevailing defendant ...