Francis Robert, an American Indian, was employed by Stanford University from 1997 to 2008.  Robert was terminated in 2008 due to his harassment of a female Stanford employee.  He was given several warnings prior to his termination, but continued to harass the employee and ultimately a restraining order was issued against him.  Following his termination, Robert brought a lawsuit against Stanford alleging that his termination was based on race, as well as claims for retaliation and breach of contract.

Prior to trial, Robert never identified any evidence other than his own testimony to support his discrimination claim.  At trial, Robert did not produce any evidence of discrimination other than his belief that he was discriminated against.  At the close of evidence, Stanford moved for nonsuit and the trial court granted the motion as to Robert's discrimination claim.

The court allowed Robert's retaliation and breach of contract claim to proceed and the jury returned a defense verdict for Stanford.

Stanford incurred over $235,000 in attorneys' fees defending against Robert's action.  It filed a motion seeking to recover its attorneys' fees as to the discrimination claim.  The trial court awarded Stanford attorneys' fees in the amount of $100,000.  Robert appealed.

Robert's race discrimination claim was brought under the California Fair Employment and Housing Act (FEHA).  Pursuant to Government Code section 12965(b), in actions brought under FEHA, the court may award to the prevailing party reasonable attorneys' fees and costs.  However, section 12965(b) only applies if the plaintiff's lawsuit is deemed unreasonable, frivolous, meritless or vexatious.  Meritless means groundless or without foundation, rather than simply that the plaintiff ultimately lost the case.  A plaintiff's ability to pay must be considered before awarding attorneys' fees in favor of a defendant and the trial court is required to make "express written findings" demonstrating it has applied the proper standards.

The trial court did not issue a separate written order on the attorneys' fees issue.  Instead, the attorneys' fees award was incorporated into an amended judgment.  Robert claimed the trial court did not make express written findings supporting the award.  The Court of Appeal found that the court did not make express written findings, but did make express oral findings at the hearing where it announced its award.   

The Court of Appeal analyzed whether the trial court had to issue a written order regarding attorneys' fees, but ultimately determined that it was not necessary to determine that issue.  Rather, the Court focused on whether there were sufficient grounds to reverse the judgment entered by the trial court.  Code of Civil Procedure section 475 states that trial court error is only reversible where (1) it affects the substantial rights of the parties, (2) the appellant sustains and suffers substantial injury, and (3) a different result would have been probable if such error had not occurred.  The Court of Appeal held that it was bound by section 475 and could not reverse the judgment absence a showing of prejudice.  The Court also held that the trial court applied the proper standards, and the fact that it did not put its findings in writing did not justify reversal of the judgment. 


It is difficult for a prevailing defendant to obtain attorneys' fees in a FEHA case as the defendant must show that the action was frivolous, unreasonable or groundless.  In August, 2013 we reported on the case of Williams v. Chino Valley Independent Fire District (2013) 218 Cal.App.4th 73, handled by Peter Brown of our Los Angeles office and Judith Islas of our San Diego office, in which the Court of Appeal held that costs are recoverable as a matter of right by a prevailing defendant in a FEHA case.  That case is currently up on review before the California Supreme Court.

Robert v. Stanford University (2014) ___ Cal.Rptr.3d____ [2014 WL 793112].