The Letter Of The Law: April 2014


EMPLOYMENT LAW: Employer May Recover Attorney Fees Under FEHA Where Plaintiff’s Evidence of Discrimination is Solely Speculation

FAMILY LAW: When Co-Parenting Seems Impossible

CONSTRUCTION LAW: Offers of Judgment in Construction Defect Cases in Nevada

Employer May Recover Attorney Fees Under FEHA Where Plaintiff’s Evidence of Discrimination is Solely Speculation

By: La ura C. Hess

In the recent case of Robert v. Stanford Univ. , No. H037514, 2014 WL 793112 (Cal. Ct. App. February 25, 2014), plaintiff brought an action against his former employer for discrimination under the California Fair Employment and Housing Act (FEHA.) He alleged that he was terminated because of his ancestry, American Indian. At trial, defendant presented evidence that plaintiff was terminated because of his harassment of a female coworker, and that plaintiff had received several warnings before he was terminated. The only evidence of discrimination that plaintiff presented at trial was his own testimony that he believed those who investigated the co-worker’s harassment complaint and terminated him, had discriminated against him.

At the close of evidence, the employer moved for nonsuit on the discrimination claim. The trial court granted the motion for nonsuit. Likely to plaintiff’s surprise, the trial court then granted defendant’s motion to recover its attorney’s fees under FEHA. The court did so on the basis that it found plaintiff’s discrimination claim was without merit, frivolous, and vexatious. The court found that plaintiff’s case was “a legal theory in search of facts,” and no facts were presented.

The plaintiff appealed the attorney fee award. The California Court of Appeal affirmed. The record indicated that the trial court had considered the plaintiff’s financial condition. The appellate court also found there was no abuse of discretion. Other than his own opinion, plaintiff never had or even claimed to have any evidence that his race played a role in his termination. This reflected the meritless nature of the claim.

This is an interesting opinion for employers. One of the biggest “hammers” in plaintiff arsenals in FEHA cases such as this is the one-sided nature of the right to recover attorney fees. The general rule in FEHA cases (i.e. for discrimination) is that the plaintiff may recover attorney fees from the defendant if he or she prevails, but the employer may not recover attorney fees from the employee if the employer prevails. There is a limited exception to this rule if there is truly no evidence in plaintiff’s favor and the plaintiff’s claim is frivolous. However, courts are generally reluctant to ever award attorney fees to prevailing employers in FEHA cases. The reason for this is because the employer is in a better position to afford the cost of attorney fees than the plaintiff, and because of the potential chilling effect on employees bringing claims to enforce their rights. In recent years, though, employers are seeing an increasing number of questionable discrimination claims brought by terminated employees. If an employer finds itself on the receiving end of one of these claims, it may be able to use as settlement leverage the fact that the court could invoke the exception and award attorney fees to the employer if it finds the discrimination claim is solely based on speculation.

When Co-Parenting Seems Impossible

By: Hoang-Anh Zapien

When you cannot stand to be in the same room as your ex-spouse, having to co-parent with the other person seems difficult, if not impossible. But as unattainable as it seems, giving up on co-parenting is not an option if you want to do what is in the best interests of your children. Effective co-parenting is integral in helping children overcome divorce.

Psychologist Dr. Peggy Kruger Tietz recently shared some advice about what to do when co-parenting is not going as well as you would hope:

  1. Accept where you are. You are not in an ideal situation and it is not helpful to deny that. Do not get caught up in the “it isn’t fair” game. It will only hinder your progress. Accept the fact that you will have a tougher time than some parents, and be willing to put in the work.
  2. Trust yourself. If your ex is a less than perfect parent. That is not something you can control. You cannot make up for that. You are already trying to be the best parent that you can be, so doing more will not make up for what your ex is not doing. Trust that you are doing your best, and know that every parent makes mistakes along the way.
  3. Create a support system. Make sure that you have people in your life who know your situation and generally give good advice. It can be a therapist, or you can talk to a good friend or family member. You need to strengthen yourself and have your own support if you are going to support your children.
  4. Be flexible. Dealing with your ex may not be fun. It will not be easy, but the more flexible you are, the more flexible he or she most likely will be. Being unwilling to change plans or to work things out will only make it harder on both of you. Do not cause yourself unnecessary headaches.
  5. Different houses have different rules. Your kids might “hate” you in that moment because you are more strict than your ex, but they will understand one day. Do what you think is best, and let your ex do what he or she thinks is best.

As the old saying goes, “no one ever said raising kids would be easy.” Raising children with an ex-spouse makes this already difficult task even more difficult, but it is not impossible. If both parties are committed to doing what is best for the children, the emotions from the divorce will diminish in time, and the parties will be better suited to focus on co-parenting. When there is a committed effort from both parties, co-parenting may never be simple, but it can get easier.


Eddie H. Choi Joins Kring & Chung’s Irvine, CA Office

Kring & Chung is pleased to announce that Eddie H. Choi has joined its Irvine, CA office as an Associate attorney. Choi specializes in the areas of contractual disputes, construction, employment law, products liability and real estate. He represents individuals and small and large businesses in all aspects of civil litigation.

Upcoming Score Seminar – Common Legal Questions for Start-up Businesses

2014 California HR Conference – Anaheim Convention Center

Kyle Kring and Laura Hess will present “So You Received a Sexual Harassment Complaint, What Not to Do, a Trial Lawyer’s Perspective,” at the 2014 California HR Conference taking place at the Anaheim Convention Center August 25, 2014 through August 27, 2014.

The workshop will include discussions on failing to implement appropriate policies and procedures prior to the alleged incident, failing to perform mandatory sexual harassment training, conducting a timely investigation and documenting the investigation, retaliating against the victim and many other topics that will assist you when dealing with a sexual harassment complaint.

Our attorneys have represented employers in all aspects of employment law. They defend employers against claims for sexual harassment, wrongful termination, retaliation, disability and age discrimination, failure to accommodate whistleblower, gender discrimination, misclassification and unpaid wages.