Hon v. Marshall

In Hon v. Marshall (1997) 53 Cal.App.4th 470, the plaintiff sued the defendants, the administrators and chief executive officers of her employer, for, among other things, violation of Government Code section 12940, the Fair Employment and Housing Act (FEHA). The trial court granted defendants summary judgment, concluding that the plaintiff had failed to exhaust her administrative remedies. The defendants then moved for an award of attorney fees under Government Code section 12965, contending that the plaintiff's "claims of discrimination and harassment were vexatious and frivolous" since she had not complained to the Department of Fair Employment and Housing, a jurisdictional prerequisite to resort to the courts. The trial court awarded the defendants $ 12,000 for defense of the FEHA cause of action. The Court of Appeal in Hon considered "the narrow question which is apparently one of first impression in this state, whether a defendant who is granted summary judgment because of such a jurisdictional defect qualifies as a 'prevailing party' entitled to an attorney fee award under section 12965." (Hon v. Marshall, supra, 53 Cal.App.4th at p. 475.) The Hon court reviewed federal cases under title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, noting that "There is a disinclination on the part of the lower federal courts to award a defendant attorney fees where the plaintiff's action has been dismissed for failing to comply with the jurisdictional prerequisites of a Title VII action, . . ." (Hon v. Marshall, supra, 53 Cal.App.4th at pp. 475-476.) The appellate court was particularly persuaded by the reasoning of Sellers v. Local 1598, Dist. Council 88 (E.D.Pa. 1985) 614 F. Supp. 141: " 'When a complaint is dismissed for lack of jurisdiction, the defendant cannot be a "prevailing party." Defendant has not "prevailed" over the plaintiff on any issue central to the merits of the litigation. It is impermissible for the court to engage in post hoc analysis of the facts. This is what would occur were we to now begin to sift and weigh the "facts" surrounding these . . . claims. They were not before the court and it would be an abuse of discretion to place them before it now.' (Id. at p. 144.)" (Hon v. Marshall, supra, 53 Cal.App.4th at p. 477.)