Lopez v. Routt

Filed 11/29/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ELISA LOPEZ, B269345

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC513593)
v.

GREGORY ROUTT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Michael P. Linfield, Judge. Affirmed.

Horvitz & Levy, Lisa Perrochet, Shane H. McKenzie; Bryan
Cave, Donald L. Samuels, Thomas E. Nanney and Julie W. O’Dell
for Defendant and Appellant.

LA SuperLawyers, Inc. and William W. Bloch; Klapach &
Klapach, and Joseph S. Klapach for Plaintiff and Respondent.
_________________________
 INTRODUCTION
Plaintiff Elisa Lopez sued her employer, the City of Beverly
Hills (the City), and her supervisor, Gregory Routt, for
harassment in violation of the California Fair Employment and
Housing Act.1 (FEHA) (Gov. Code, § 12900 et seq.)2 A jury found
in favor of the City and Routt on the harassment claim, and
Routt moved for prevailing party attorney fees under FEHA’s fee
shifting provision. (§ 12965, subd. (b).) The trial court denied
Routt’s motion, concluding he had failed to establish Lopez’s
claim was frivolous, as is required for a prevailing defendant to
obtain an attorney fee award under FEHA. (See Williams v.
Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115
(Williams); Cummings v. Benco Building Services (1992)
11 Cal.App.4th 1383, 1385-1386 (Cummings).)
Routt appeals from the postjudgment order denying his
request for attorney fees. As his sole contention on appeal, Routt
argues the frivolousness standard should not apply to a fee
request by a supervising employee who has been sued as an
individual defendant. Based on California Supreme Court
precedent and the relevant legislative history, we conclude the
same standard applies to an individual defendant’s request for
attorney fees under FEHA as applies to an employer defendant,
and thus a fee award is only available in the discretion of a trial

1 Lopez also sued the City for racial discrimination and
retaliation under FEHA. The jury found the City liable for
retaliation, but ruled in favor of the City and against Lopez on
the two remaining claims.
2 Statutory references are to the Government Code unless
otherwise indicated.

2
court when the court finds that the plaintiff’s claim was frivolous.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
The underlying facts are of limited relevance to the issue
raised in this appeal.3
Lopez is an employee of the City’s parking enforcement
department. Routt was her supervisor. Lopez sued Routt and
the City, alleging Routt subjected her to harassment based on her
race and national origin in violation of FEHA. The City provided
Routt’s defense.
After a trial, the jury returned a verdict in favor of Routt
and the City on Lopez’s harassment claim. Routt filed a motion
for prevailing party attorney fees under FEHA’s fee shifting
provision, section 12965. He sought $374,760.75, which
amounted to 50 percent of the total fees incurred by the City in
its representation of both the City and Routt.
The trial court denied Routt’s motion. The court ruled that,
“[u]nder the FEHA, a prevailing defendant may only recover fees
upon a showing that the plaintiff’s action was frivolous,
unreasonable, or without foundation.” The court found Routt
failed to make the requisite showing.

3 In his opening brief, Routt had argued the trial court erred,
even if the frivolousness standard applied, because Lopez’s
harassment claim against him was in fact frivolous. In his reply
brief, Routt notified this court that he was abandoning this fact-
based argument “in light of further review of the record, and in
recognition of the strict standard of appellate review.”

3
 DISCUSSION
1. Standard of Review and Legal Principles; the
Christiansburg Rule and the Williams Decision
Routt contends the trial court erred when it ruled he could
obtain attorney fees as a prevailing defendant under FEHA only
upon a showing that Lopez’s action was frivolous, unreasonable
or without foundation. Although he acknowledges the
frivolousness standard applies to fee motions brought by a
prevailing employer defendant, he contends supervisors and
other employees sued as individual defendants should not be
subject to the same onerous standard. The issue presents a
question of statutory interpretation subject to our de novo
standard of review. (See Akins v. Enterprise Rent-A-Car Co.
(2000) 79 Cal.App.4th 1127, 1132-1133; see also Williams, supra,
61 Cal.4th at p. 100.)
With FEHA, the Legislature sought to “protect and
safeguard the right and opportunity of all persons to seek, obtain,
and hold employment without discrimination or abridgment on
account of race, . . . color, [or] national origin” and to “provide
effective remedies that will eliminate these discriminatory
practices.” (§ 12920.) To accomplish this purpose, section 12965,
subdivision (b) authorizes private actions to enforce FEHA’s
protections, and provides that “[i]n civil actions brought under
this section, the court, in its discretion, may award to the
prevailing party . . . reasonable attorney’s fees and costs.”
(§ 12965, subd. (b); see Williams, supra, 61 Cal.4th at p. 101.)

4
 FEHA’s fee shifting provision advances the statute’s crucial
objectives by “ ‘encourag[ing] litigation of claims that in the
public interest merit litigation.’ ” (Flannery v. Prentice (2001)
26 Cal.4th 572, 584 (Flannery).) As our Supreme Court explained
in Flannery, “ ‘ “privately initiated lawsuits are often essential to
the effectuation of the fundamental public policies embodied in
constitutional or statutory provisions” ’ [citation], and ‘ “[w]ithout
some mechanism authorizing the award of attorney fees, private
actions to enforce such important public policies will as a
practical matter frequently be infeasible.” ’ ” (Id. at p. 583.)
Like FEHA, the federal employment discrimination
statute, title VII of the 1964 Civil Rights Act (Title VII), provides
that the trial court, “in its discretion, may allow the prevailing
party . . . a reasonable attorney’s fee . . . as part of the costs.”
(42 U.S.C. § 2000e–5(k).) In Christiansburg Garment Co. v.
E. E. O. C. (1978) 434 U.S. 412 (Christiansburg), the United
States Supreme Court interpreted this discretionary provision
and concluded it created a different standard for awarding fees to
prevailing defendants than to prevailing plaintiffs.
The high court recognized that Congress had chosen Title
VII plaintiffs as instruments to vindicate federal policy against
job discrimination, and further recognized that when a trial court
awards attorney fees to a prevailing plaintiff, “it is awarding
them against a violator of federal law.” (Christiansburg, supra,
434 U.S. at p. 418.) The court emphasized that these “two strong
equitable considerations counseling an attorney’s fees award to a
prevailing Title VII plaintiff . . . are wholly absent in the case of a
prevailing Title VII defendant.” (Ibid.) Moreover, Title VII’s
legislative history confirmed the fee shifting provision’s purpose
was to “ ‘make it easier for a plaintiff of limited means to bring a

5
meritorious suit’ ” while also protecting defendants from
burdensome litigation without legal or factual basis. (Id. at
p. 420.) Notwithstanding the statute’s reference to a “prevailing
party” (42 U.S.C. § 2000e–5(k)), the Christiansburg court held the
statutory purpose mandated that a Title VII plaintiff “should not
be assessed his opponent’s attorney’s fees unless a court finds
that his claim was frivolous, unreasonable, or groundless, or that
the plaintiff continued to litigate after it clearly became so.”
(Christiansburg, at p. 422.)
The Supreme Court admonished trial courts to “resist the
understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation. This
kind of hindsight logic could discourage all but the most airtight
claims, for seldom can a prospective plaintiff be sure of ultimate
success. No matter how honest one’s belief that he has been the
victim of discrimination, no matter how meritorious one’s claim
may appear at the outset, the course of litigation is rarely
predictable. Decisive facts may not emerge until discovery or
trial. The law may change or clarify in the midst of litigation.
Even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely
reasonable ground for bringing suit.” (Christiansburg, supra,
434 U.S. at pp. 421-422.) To assess attorney’s fees against
plaintiffs “simply because they do not finally prevail would
substantially add to the risks inhering in most litigation and
would undercut the efforts of Congress to promote the vigorous
enforcement of the provisions of Title VII.” (Id. at p. 422.)

6
 In 1992, the Court of Appeal in Cummings adopted the
Christiansburg frivolousness standard for attorney fee motions
by prevailing FEHA defendants. The trial court in the
underlying age discrimination suit granted summary judgment to
the employer defendant and awarded it more than $60,000 in
attorney fees. The appellate court reversed the award as an
abuse of discretion under section 12965, subdivision (b). After
quoting the fee shifting provision, the Cummings court observed
that the “language, purpose and intent of California and federal
anti-discrimination acts are virtually identical.” (Cummings,
supra, 11 Cal.App.4th at p. 1386.) Drawing on established
precedent “adopt[ing] the methods and principles developed by
federal courts in employment discrimination claims arising under
title VII,” the appellate court adopted the reasoning of the
Christiansburg decision and held that the “standard a trial court
must use in exercising its discretion in awarding fees and costs to
a prevailing defendant [under FEHA] was set forth in the [United
States] Supreme Court’s decision in Christiansburg.”
(Cummings, at pp. 1386, 1387.)
In 2015, the California Supreme Court approved the
Cummings court’s interpretation of FEHA’s fee shifting provision,
holding, “the trial court’s discretion is bounded by the rule of
Christiansburg; an unsuccessful FEHA plaintiff should not be
ordered to pay the defendant’s fees or costs unless the plaintiff
brought or continued litigating the action without an objective
basis for believing it had potential merit.” (Williams, supra,

7
 61 Cal.4th at pp. 99-100.)4 Beginning with the text of the
statute, the Supreme Court in Williams observed that, “[o]n its
face, the language of Government Code section 12965(b) does not
distinguish between awards to FEHA plaintiffs and to FEHA
defendants: It simply provides trial court discretion in making
fee and cost awards to the prevailing ‘party.’ ” (Williams, at
p. 109.) Nevertheless, the court concluded “the legislative history
of the bill by which this language entered our law, and the
underlying policy distinctions reflected in that history, persuade
us the Legislature intended trial courts to use the asymmetrical
standard of Christiansburg as to both fees and costs.” (Williams,
at p. 109.)

4 As the Williams court noted, numerous appellate decisions
had followed Cummings in applying the Christiansburg rule to
attorney fee motions by prevailing FEHA defendants. (Williams,
supra, 61 Cal.4th at p. 103; see, e.g., Leek v. Cooper (2011)
194 Cal.App.4th 399, 419-420 (Leek); Young v. Exxon Mobil Corp.
(2008) 168 Cal.App.4th 1467, 1475 (Young); Mangano v. Verity,
Inc. (2008) 167 Cal.App.4th 944, 948-949; Rosenman v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001)
91 Cal.App.4th 859, 874 [“Any other standard would have the
disastrous effect of closing the courtroom door to plaintiffs who
have meritorious claims but who dare not risk the financial ruin
caused by an award of attorney fees if they ultimately do not
succeed”]; see also Chavez v. City of Los Angeles (2010) 47 Cal.4th
970, 985 [observing, “California courts have adopted” the
Christiansburg rule for attorney fee awards in FEHA cases].)

8
 Addressing the statute’s legislative history, the Williams
court recounted that, in 1978, when the bill for the predecessor to
FEHA’s fee shifting provision was under consideration, the
proposed legislation would have granted “the trial court
discretion to award ‘the prevailing plaintiff reasonable attorney
fees and costs.’ ” (Williams, supra, 61 Cal.4th at p. 110, italics
added.) A committee analysis noted the bill “differed from federal
law under Title VII in one respect: ‘Unlike the proposed
provision, which limits payment of fees and costs to only the
prevailing plaintiff, federal law allows fees and costs to be
awarded to a prevailing defendant if there is a showing that
individuals bringing suit acted in bad faith, frivolously, or
maliciously.’ [Citation.] The analysis went on to ask,
rhetorically, ‘Would it be more equitable to allow the prevailing
party, rather than just the prevailing plaintiff, to be awarded
attorneys fees and costs?’ ” (Ibid.) A week later, the Assembly
amended the bill to change “ ‘plaintiff’ ” to “ ‘party,’ ” and a week
after that, the United States Supreme Court filed Christiansburg,
which approved the restrictive standard for fee awards to

9
 prevailing Title VII defendants.5 (Williams, at p. 110.) By the
time the bill was passed by the Legislature and signed into law,
Christiansburg had been on the books for several months.
(Williams, at p. 111.)
The Williams court observed that, “[i]n amending
California’s employment antidiscrimination law to authorize
discretionary awards of attorney fees and costs, our Legislature,
like Congress before it, sought ‘to encourage persons injured by
discrimination to seek judicial relief.’ ” (Williams, supra,
61 Cal.4th at p. 112.) In view of that purpose and the
accompanying legislative history, our Supreme Court found the

5 The committee analysis for the Assembly bill had referred
to lower federal court decisions preceding Christiansburg that
had imposed the bad faith, frivolous or malicious standard in
assessing whether a defendant was entitled to attorney fees
under Title VII. (Williams, supra, 61 Cal.4th at p. 111, citing
Carrion v. Yeshiva University (2nd Cir. 1976) 535 F.2d 722, 727
[a prevailing Title VII defendant should be awarded fees “only
where the action brought is found to be unreasonable, frivolous,
meritless or vexatious”]; United States Steel Corporation v.
United States (3rd Cir. 1975) 519 F.2d 359, 363 [upholding
district court denial of fees to prevailing Title VII defendant on
basis that action was not “ ‘unfounded, meritless, frivolous or
vexatiously brought’ ”].) “The Christiansburg court approved ‘the
concept embodied in the language adopted by these two Courts of
Appeals,’ qualifying that language ‘only by pointing out that the
term “meritless” is to be understood as meaning groundless or
without foundation, rather than simply that the plaintiff has
ultimately lost his case, and that the term “vexatious” in no way
implies that the plaintiff’s subjective bad faith is a necessary
prerequisite to a fee award against him.’ ” (Williams, at p. 111,
quoting Christiansburg, supra, 434 U.S. at p. 421.)

10
inference “inescapable . . . that the Legislature, in giving the trial
courts discretion to award fees and costs to prevailing parties in
employment discrimination suits, intended that discretion to be
bounded by the Christiansburg rule, or something very close to
it.” (Williams, at p. 112.) Thus, under FEHA’s fee shifting
provision, the court held: “[A] prevailing plaintiff should
ordinarily receive his or her costs and attorney fees unless special
circumstances would render such an award unjust. [Citation.] A
prevailing defendant, however, should not be awarded fees and
costs unless the court finds the action was objectively without
foundation when brought, or the plaintiff continued to litigate
after it clearly became so.” (Id. at p. 115.)
With this background in place, we turn to Routt’s
contention in this appeal.
2. The Christiansburg Rule Applies to Routt’s Request
for Attorney Fees
Routt argues Williams and other California appellate
decisions applying the Christiansburg rule are inapposite. He
maintains these cases considered only the standard that should
govern an employer defendant’s request for attorney fees—not the
standard that should apply when an individual defendant
prevails on a workplace harassment claim under FEHA. He
contends that when an individual defendant in a FEHA
harassment case prevails, that defendant should be subject to the
same fee-shifting rules as a prevailing plaintiff, and thus should
be entitled to have a court exercise its discretion to award
attorney fees, whether or not the court ultimately deems the
plaintiff’s claims frivolous.

11
 We reject Routt’s contention that the Christiansburg rule
does not apply to his request for attorney fees because of his
status as an individual defendant. First and foremost, Williams
broadly held that the Christiansburg rule applies to attorney fee
motions brought by a “prevailing defendant,” and nothing about
this decision suggests that its holding should be limited to the
facts of that case, which happened to concern an attorney fees
motion by an employer defendant. Tellingly, no court has seen fit
to draw the distinction urged by Routt.
Further, our interpretation of FEHA’s discretionary fee
shifting provision “must reflect the legislative intent as to how
that discretion is to be bounded.” (Williams, supra, 61 Cal.4th at
p. 114.) The equitable considerations that support the
asymmetrical application of that provision are no different as
applied to an employer versus an individual defendant, leading to
the inescapable conclusion that no exception to the
Christiansburg rule is warranted for prevailing individual
defendants.
Breaking with the traditional “American rule” under which
the prevailing party generally is not entitled to receive attorney
fees (Code Civ. Proc., § 1021), the Legislature created the FEHA
fee shifting standard to encourage plaintiffs to serve as
instruments for vindicating the state’s policy against
discrimination, retaliation, and harassment in the workplace.
This equitable consideration simply does not come into play in
the case of a prevailing FEHA defendant, no matter whether the
defendant is an entity or an individual employee. The FEHA fee
provision is designed to encourage plaintiffs of limited means to
bring a meritorious suit; assessing attorney fees against such
plaintiffs in non-frivolous cases merely because they do not

12
ultimately prevail would have a major chilling effect on potential
plaintiffs and thereby undermine the Legislature’s intent to
promote the enforcement of FEHA.
Routt argues, however, that individual defendants who
prevail in a FEHA harassment suit should be considered on the
same footing as prevailing plaintiffs in seeking their attorney fees
because “there is less impetus for encouraging” plaintiffs to file
harassment suits against individual employee defendants, “given
that plaintiffs may sue the employer for the same wrong” under
the principle of vicarious liability. The actions taken by our
Legislature directly contradict this contention.
The Legislature has unequivocally expressed its intention
to ensure that personal liability lies under FEHA against
individual employees for harassment. In 1999, in Carrisales v.
Department of Corrections (1999) 21 Cal.4th 1132 (Carrisales),
our Supreme Court held that former section 12940, subdivision
(h)(1) did not impose personal liability on nonsupervisory
coworkers for harassment, and liability for such harassment
extended only to the employer.6 (Carrisales, at p. 1140.) The
court stated, “If the Legislature believes it necessary or desirable

6 When the court decided Carrisales, former section 12940,
subdivision (h)(1) provided: “It shall be an unlawful employment
practice . . . : [¶] . . . [¶] For an employer . . . or any other person,
because of . . . sex, . . . to harass an employee [or] applicant. . . .
Harassment of an employee [or] applicant . . . by an employee
other than an agent or supervisor shall be unlawful if the entity,
or its agents or supervisors, knows or should have known of this
conduct and fails to take immediate and appropriate corrective
action. An entity shall take all reasonable steps to prevent
harassment from occurring.” (See Carrisales, supra, 21 Cal.4th
at p. 1135.)

13
to impose individual liability on coworkers, it can do so.” (Ibid.)
The Legislature responded the following year by amending FEHA
to add section 12940, subdivision (j)(3), which provides: “An
employee of an entity subject to this subdivision is personally
liable for any harassment prohibited by this section that is
perpetrated by the employee, regardless of whether the employer
or covered entity knows or should have known of the conduct and
fails to take immediate and appropriate corrective action.” (See
Stats. 2000, ch. 1049, §§ 7.5, 11; Jones v. Lodge at Torrey Pines
Partnership (2008) 42 Cal.4th 1158, 1164, fn. 3 (Jones)
[discussing legislative abrogation of Carrisales]; McClung v.
Employment Development Dept. (2004) 34 Cal.4th 467, 471.)
“This is clear language imposing personal liability on all
employees for their own harassing actions.” (Jones, at p. 1162.)
By this amendment, the Legislature evidenced its intention
to encourage plaintiffs to bring harassment claims against
coworkers where they have a nonfrivolous basis to do so.
Further, the Legislature impliedly rejected the court’s reasoning
in Carrisales—resurrected by Routt in this appeal—that
harassment suits against coworkers need not be encouraged
because redress may instead be sought from the employer in most
cases. (Carrisales, supra, 21 Cal.4th at p. 1136.) The Carrisales
court noted that, under then-existing law, an employee who has
been harassed by a coworker had a right to sue his or her
employer where the employer failed to take immediate and
appropriate corrective action after learning of the harassing
conduct, and only in the narrow circumstance where the
employer did in fact act immediately and respond appropriately
would a claim against the employer be foreclosed. The court also
found that the plaintiff’s argument that employers could not be

14
relied upon to provide effective deterrence against harassment by
coworkers was an argument “best directed to the Legislature.”
(Id. at pp. 1139-1140.)
In responding to Carrisales by amending the harassment
provision, the Legislature plainly concluded it was necessary to
make individual employees liable for harassment under FEHA to
ensure a victim’s full recovery and to deter harassment between
coworkers. It would be absurd to conclude the Legislature
amended FEHA with these goals in mind, yet intended to
discourage plaintiffs from bringing such claims by depriving
them of the asymmetrical attorney fee standard that the
Cummings court introduced into FEHA jurisprudence nearly a
decade earlier to work in tandem with the other FEHA provisions
to accomplish the state’s policy objectives. (See Cummings,
supra, 11 Cal.App.4th at p. 1387 [applying Christiansburg rule to
FEHA fee shifting provision in 1992]; Stats. 2000, ch. 1049,
§§ 7.5, 11 [extending FEHA liability to individual defendants,
effective January 1, 2001]; see also Flannery, supra, 26 Cal.4th at
p. 578 [statutory language is not considered in isolation; rather,
the court must “look to ‘the entire substance of the statute . . . in
order to determine the scope and purpose of the provision’ ”]);
Flannery v. California Highway Patrol (1998) 61 Cal.App.4th
629, 642–643 [“The Legislature is presumed to have knowledge of
existing judicial decisions when it enacts and amends legislation.
When the Legislature amends a statute that has been the subject
of judicial construction, changing it only in part, the presumption

15
is that the Legislature intended to leave the law unchanged in
the aspects not amended.”].)7
To support his contention that “countervailing public
policies” militate in favor of treating fee requests by prevailing
individual employee defendants differently from requests by
employer defendants, Routt relies on the discussion in Janken v.
GM Hughes Electronics (1996) 46 Cal.App.4th 55 (Janken),
regarding the rationales for not imposing personal liability on
supervisory employees. (See id. at pp. 74-75, italics added
[“Adding individual supervisors personally as defendants adds
mostly an in terrorem quality to the litigation, threatening
individual supervisory employees with the spectre of financial
ruin for themselves and their families and correspondingly
enhancing a plaintiff’s possibility of extracting a settlement on a
basis other than the merits.”].) But Routt fails to acknowledge
that this discussion in Jankens was limited to FEHA
discrimination claims. In fact, the Jankens court went to great
lengths to explain why personal liability was appropriate for
individual employee defendants who engaged in harassment, but
not for employees engaged in discrimination. (Id. at pp. 62-65.)
Indeed, for principled reasons, FEHA imposes personal
liability on individual employees for harassment (see § 12940,
subd. (j)(3); Jones, supra, 42 Cal.4th at pp. 1164-1165), but does
not impose personal liability on individual employees for
employment discrimination (§ 12940, subd. (a); Reno v. Baird
(1998) 18 Cal.4th 640, 663 (Reno)) or retaliation (§ 12940, subd.

7 In so amending FEHA, our Legislature clarified its intent
to depart from Title VII, under which employees may not be sued
in their individual capacities as to any type of claim. (See Reno,
supra, 18 Cal.4th at p. 663.)

16
(h); Jones, at p. 1173.) “ ‘[T]he Legislature’s differential
treatment of harassment and discrimination is based on the
fundamental distinction between harassment as a type of conduct
not necessary to a supervisor’s job performance, and business or
personnel management decisions – which might later be
considered discriminatory – as inherently necessary to
performance of a supervisor’s job.’ [Citation.]” (Reno, at p. 645,
quoting Janken, supra, 46 Cal.App.4th at pp. 62-63.)
“ ‘[H]arassment consists of a type of conduct not necessary for
performance of a supervisory job. Instead, harassment consists of
conduct outside the scope of necessary job performance, conduct
presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives.’ ” (Reno, at
pp. 645-646.) “Behavior that gives rise to a discrimination claim,
on the other hand, is often indistinguishable from performing
one’s job duties.” (Id. at p. 657.) Thus, “[w]hatever similarities
there may be between [discrimination and harassment], the
employer ultimately does the former; coworkers and supervisors
do the latter.” (Ibid.) Acts by a supervisor that may form the
basis for a retaliation claim similarly are acts that are within the
scope of necessary job performance. (Jones, at p. 1167.)
In view of these fundamental differences between
harassment, on the one hand, and discrimination and retaliation,
on the other, we do not find persuasive Routt’s recitation of the
public policy rationales that have been articulated for not
imposing liability on individual coworkers in FEHA
discrimination cases. Further, given that harassment claims are
fundamentally different from discrimination and retaliation
claims in terms of whether individual coworkers should be held
personally liable, we also disagree with Routt’s contention that

17
the Legislature could not have intended to encourage harassment
claims against individual defendants by subjecting them to
Christiansburg’s asymmetrical frivolousness standard.
As for Routt’s arguments regarding the burdens on
individual defendants in defending against unmeritorious FEHA
harassment claims, the Christiansburg frivolousness standard
ensures that defendants may recover attorney fees and costs
when dragged into court to defend a FEHA suit with no legal or
factual basis. Moreover, even if a harassment suit is not
frivolous, but the individual employee defendant prevails in the
suit, that employee has potential avenues by which to seek
reimbursement from his employer of his attorney fees and costs.
If the employee works for a public entity, that entity is obligated
(with limited exceptions) to “provide for the defense of any civil
action or proceeding brought against him . . . on account of an act
or omission in the scope of his employment.” (§ 995; Lexin v. City
of San Diego (2013) 222 Cal.App.4th 662, 669). If the employee
works for a private entity, Labor Code section 2802 requires that
private employer to indemnify the employee for all expenses and
losses, including attorney fees, incurred “in direct consequence of
the discharge of his duties.” (Labor Code, § 2802, subds. (a), (c). 8

8 “The test for recovery [from an employer] under section
2802 is whether the conduct defended against was within the
course and scope of employment.” (Jacobus v. Krambo Corp.
(2000) 78 Cal.App.4th 1096, 1101 (Jacobus).) In Jacobus, an
employee was sued for sexual harassment but successfully
defended against that claim, and thus sought indemnification
from his employer for his attorney fees under Labor Code section
2802. The court found that the employee’s conduct, which
included showing explicit sexual stories to his co-worker plaintiff,
did not amount to sexual harassment, and instead could be

18
Accordingly, individual employee defendants who prevail on a
FEHA harassment suit are not left without a means of recovering
attorney fees and costs they may have incurred to defend
themselves.
We affirm the trial court’s denial of Routt’s motion for
attorney fees.9

characterized as “part of the social intercourse that occasionally
occurs in modern office settings.” (Jacobus, at p. 1103.) Thus,
the court held the employer was obligated under Labor Code
section 2802 to either defend the employee in the litigation or to
“pay the defense costs of the exonerated employee.” (Jacobus, at
p. 1104.)
9 Lopez filed a motion for appellate attorney fees as sanctions
pursuant to Code of Civil Procedure section 907 and California
Rules of Court, rule 8.276(a)(1). She argues Routt’s “legal
arguments are indisputably without merit,” citing our Supreme
Court’s holding in Williams and decisions by the appellate courts
in Leek and Young, which both involved claims by prevailing
individual defendants for fee awards under FEHA. (See Leek,
supra, 194 Cal.App.4th 399; Young, supra, 168 Cal.App.4th
1467.) Neither Leek nor Young expressly addressed the legal
question whether the Christiansburg rule should apply to
individual employee defendants. While we conclude the trial
court correctly applied the standard articulated in Williams to
Routt’s fee motion, we agree with Routt that no binding
precedent has directly addressed the legal issue presented by his
appeal. Lopez’s motion for sanctions is denied.

We also deny Routt’s request for judicial notice of the
appellate briefs in Leek and Young.

19
 DISPOSITION
The order is affirmed. Plaintiff, Elisa Lopez, is entitled to
her costs.

CERTIFIED FOR PUBLICATION

STONE, J.*

We concur:

EDMON, P. J.

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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