John Cook has given Defendant State Compensation Insurance Fund over forty years of his life, in dutiful and distinguished service.  His excellent work has been recognized by outstanding performance evaluations and awards.  Defendant now seeks an extreme sanction -- that courts only grant sparingly, in egregious cases of plaintiff misconduct -- against its lifetime civil servant.

            Defendant cannot meet its burden of proving that this action was unreasonable, frivolous, groundless or vexatious.  The Declaration of John M. True, III, a prominent employment lawyer with 26 years of experience, makes clear that this action, and Plaintiff’s handling of it, were by no means frivolous, unreasonable, groundless or vexatious.  (See, Decl. Of John M. True, III,  filed separately and as Exhibit D for the convenience of the Court).

            Furthermore, even if Defendant could prove that this action met the high threshold required for an award of defense attorneys’ fees, the fees sought are excessive and unreasonable. 

            An award of attorneys’ fees and costs to this Defendant would serve only to chill employees from bringing the private attorney general actions that the legislature encourages them to bring, and would financially ruin a dedicated employee who is approaching his retirement years.


            This Court granted Defendant’s motion for summary judgment, finding that the majority of Plaintiff’s claims were barred by the statute of limitations, relying on Richards v. CH2M Hill, Inc., 26 Cal.4th 798 (2001).  This Court rejected Plaintiff’s evidence and arguments that this case involved continuing violations of the law, including discriminatory promotion practices that continue even to this day.[2] 

Richards involved failure to accommodate disabilities and harassment.  The Supreme Court did not change the longstanding law that discriminatory promotion systems constitute classic continuing violations.   In Valdez v. City of Los Angeles, 231 Cal. App. 3d 1043, 1052-1054 (1991), the Court of Appeal noted, “[A]ssuming defendants’ promotional system was discriminatory, maintenance of that system within one year preceding Valdez’s filing his claim makes the claim timely.”  231 Cal. App. 3d at 1053-54.  A claim is timely if the discriminatory system is maintained into the limitations period.  Id. at 1052.   “Cases challenging discriminatory promotional systems are a prime example of the application of the ‘continuing violation’ doctrine.” Id.

            In granting Defendant’s motion on statute of limitations grounds, this Court did not address the factual basis for Plaintiff’s discrimination claims involving the denials of promotions prior to 1998.  It rather found that they were untimely.  Exhibit C, Opinion granting summary judgment.

            This Court rejected Plaintiff’s argument that, even if Kevin Tom’s 1998 appointment to Oakland Attorney-in-Charge was a “transfer” rather than a promotion, questions of fact remained as to whether race or age was a motivating factor in Defendant’s choice to “transfer” Mr. Tom rather than promote Mr. Cook, especially given Defendant’s ongoing discriminatory promotion practices, and Fred Da Silva’s initiation of a discussion about retirement and retirement benefits in his interview of Plaintiff for the position.  Defendant’s “transfer” of Mr. Tom was based on his having been promoted to Attorney-in-Charge in San Jose four years earlier – when he was significantly less qualified for the position than Plaintiff – and Defendant violated its own rules and civil service laws to give the job to Mr. Tom.[3]

            This Court did not address the adverse employment actions within the statutory period that did not involve specific promotions, including Defendant’s negative evaluation of Plaintiff for promotion in June 1998.[4]

            In granting summary judgment in favor of Defendant, this Court did not find Plaintiff’s action, arguments,  or evidence to be frivolous.  This Court simply found that Plaintiff’s claims were time-barred prior to 1998, and insufficient facts evidencing discrimination were presented with respect to the 1998 appointment of Kevin Tom to Oakland Attorney-in-Charge.[5]

In his 68 years, Plaintiff has never filed a lawsuit other than this one, except for a minor small claims action decades ago.  This case was not something Plaintiff filed lightly.  He only filed this lawsuit after his supervisor, Kevin Tom, told him that he should not have any hope of being promoted, when only two months earlier, Mr. Tom had told Plaintiff that there was no reason to delay his promotion any longer.

Plaintiff was careful to limit the depositions he took in this case.  Since there were six comparators, multiple decision-makers, and Defendant spreads its promotion, testing, and human resources functions among several people, Plaintiff was required to depose several witnesses.[6]

Furthermore, while Defendant complains about the amount of paper the parties exchanged in discovery, over 1300 pages exchanged were simply Plaintiff’s employment file from his decades-long employment history.  The majority of the other pages consisted of Plaintiff’s DFEH file, Defendant’s organizational charts and wage scales, Plaintiff’s copies of the Oakland office calendars for several years, partial promotion testing materials, and partial employment policies.[7]

Finally, Plaintiff’s litigation of this case can hardly be characterized vexatious, unreasonable, or groundless when Defense counsel claims to have spent almost twice as much time on this case as Plaintiff’s counsel.




            The burden of proof on a motion for attorneys’ fees rests with the moving party.  Reactive Metals and Alloys Corp. v. ESM, Inc., 769 F.2d 1582 (Fed. Cir. 1985).

            Mr. Cook brought this case to vindicate his, and other SCIF employees’, rights to be free from discrimination in the workplace.  Plaintiffs who file claims challenging employment discrimination act as ‘private attorneys general’ to vindicate the national public policy of eradicating discrimination in employment, which Congress found to be of the ‘highest priority.’  Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402 (1968); U.S. v. Paradise, 480 U.S. 149, 167 (1987); Cummings v. Benco Building Services, 11 Cal. App. 4th 1383, 1387 (1992).[8]

            The objectives of civil rights claims are two-fold.  One objective is deterrence, the other is compensation for injuries.  McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358 (1995).  Private litigants who seek redress for discrimination vindicate both objectives.  Id.  Indeed, disclosure, through litigation, of discrimination “‘is itself important’ and furthers the objectives of anti-discrimination legislation.  McKennon at 358-359.

For these reasons, when a court awards attorneys’ fees in favor of a prevailing civil rights plaintiff, it is supported by two strong equitable considerations:  (1) the private plaintiff is the “chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority;” and (2) the defendant “is a violator of federal law.”  Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978).[9]

These equitable considerations are “entirely absent” in the case of a prevailing defendant.  Cummings v. Benco Building Services, 11 Cal. App. 4th 1383, 1387 (1992).  Therefore, when a defendant prevails in a civil rights case, it is only entitled to attorneys’ fees when the plaintiff’s action was “frivolous, unreasonable, or groundless” or the plaintiff continued to litigate after it clearly became so.  Christiansburg at 422; Cummings  at 1388.  That a plaintiff lost on summary judgment does not mean that the claim was frivolous.  Hurley v. Atlantic City Police Dep’t, 933 F. Supp. 396, 427 (D. N.J. 1996); Cummings at 1390.

            An award of attorneys’ fees against a losing plaintiff in a civil rights action “is an extreme sanction, and must be limited to truly egregious cases of misconduct.”  Jones v. Continental Corporation, 789 F.2d 1225, 1232 (6th Cir. 1986).  Fees to a prevailing Defendant “are to be sparingly awarded.”  EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3rd Cir. 1997).

            “Only in exceptional cases did Congress intend that defendants be awarded attorney’s fees under Title VII.”  Mitchell v. Office of the LA Sup’t. of Schools,  805 F.2d 844, 848 (9th Cir. 1986).

            An award of fees to a civil rights defendant is unwarranted where the complaint is not “entirely frivolous,” and raises important questions of first impression.  Peloza v. Capistrano Unified School District, 37 F.3d 517, 524 (9th Cir. 1994).

An award of fees against the plaintiff is inappropriate where the defendant obtains summary judgment for legal reasons.   Hurley at 427.  Thus, in Moses v. Phelps Dodge Corp., 826 F. Supp. 1234, 1235 (D. Az. 1993), the court denied the defendant attorneys fees under Christiansburg after it granted the defendant’s motion for summary judgment based on the statute of limitations.

Both the U.S. Supreme Court and the California Court of Appeal have cautioned courts against applying 20/20 hindsight:

In applying these criteria, it is important that a district court 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.[[10]]  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, 434 U.S. at 421-422, quoted in Cummings, 11 Cal. App. 4th at 1388.

            Providing attorneys’ fees only to prevailing plaintiffs operates as an incentive for plaintiffs to avoid bringing claims that have little chance of success.[11]   “To take the further step of assessing 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 provisions of Title VII.”  Christiansburg at 422; Cummings at 1388.

            In Christiansburg, the court found that the action was not unreasonable, frivolous, vexatious or groundless, where the basis upon which the defendant prevailed was an issue of first impression requiring judicial resolution, and the plaintiff’s interpretation of the law was not frivolous.[12]

            Similarly, this case presents numerous novel legal issues in California jurisprudence, including but not limited to:  Defendant’s numerous violations of California civil service laws and its own policies as evidence of discrimination; Defendant’s employment of purely subjective, standardless selection criteria as evidence of discrimination; Defendant’s allowing supervisors unfettered discretion in the rating of employees for promotion; Defendant’s failure to have any safeguards in place to protect against discriminatory promotion ratings; employees’ ability after Richards to challenge discriminatory promotion systems under the continuing violations doctrine as set forth in City and County of San Francisco, 191 Cal. App. 3d at 983, Valdez, 231 Cal. App. 3d at 1052-1054, and Williams, 665 F.2d at 924; whether Richards is limited to cases involving harassment and failure to accommodate a disability; and plaintiffs’ ability to demonstrate pretext by showing “that the employer’s proffered explanation is unworthy of credence,” which is “simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite probative.”  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 147 (2000)(quoted with approval in Guz v. Bechtel National Inc., 24 Cal. 4th 317 (2000)).

            In Cummings, supra, the trial court granted summary judgment of plaintiff’s FEHA age discrimination claim, which was affirmed on appeal.  However, the Court of Appeal found that the action was not frivolous, unreasonable, or without foundation, and reversed the trial court’s award of attorneys’ fees to the defendant.  11 Cal. App. 4th at 1389.

            The appellate court in Cummings observed that the cases in which defendants are awarded attorneys fees are sharply limited:  “Patterns developed in these cases indicate that either the plaintiff’s conduct was egregious or that his or her case was patently baseless for objective reasons.” 11 Cal. App. 4th at 1389.

            The Cummings court noted:  “the case at bar appears to be a routine case in which the plaintiff merely failed to achieve success on her claim.  As the Supreme Court cautioned, this fact should not automatically entitle a prevailing defendant to fees and costs, or otherwise only those plaintiffs with the most airtight cases will risk bringing suit to enforce antidiscrimination legislation.”  11 Cal. App. 4th at 1390.

            Similarly, in Rosenman v. Christensen, Miller, et al., 91 Cal. App. 4th 859 (2001), the Court of Appeal repeatedly noted that defense attorneys’ fee awards must be limited to “rare” or “extreme” cases, and the award must be supported by written findings.  91 Cal. App. 4th at 864, 868. 

In Rosenman, the Court of Appeal held that the trial court abused its discretion in awarding a FEHA defendant $150,000 in attorneys’ fees after a trial in which the plaintiff lost.  The court distinguished the case before it, where the plaintiff was simply unsuccessful, from the extreme and egregious cases in which a defendant was found to be entitled to attorneys’ fees. 

            The Rosenman court found the plaintiff’s cause of action “was not obviously contrary to undisputed facts or well established legal principles specifically precluding recovery for the type of injury alleged;”  the plaintiff did not continuously seek to avoid adverse legal rulings by intentionally submitting renewed motions that disguised the subject of previously denied motions; the plaintiff did not pursue litigation after discovery affirmatively disclosed the factual basis for the alleged discrimination; and the plaintiff did not engage in blatant perjury or misconduct, or fabricate evidence. 91 Cal. App. 4th at 869-871.

            The Rosenman court observed that “A relatively small number of California cases have awarded attorney fees to the prevailing defendant under the Christiansburg standard.”  91 Cal. App. 4th at 872.  In light of the “very strong public antidiscrimination policy embodied in FEHA,” an award of attorneys fees to a prevailing defendant is inappropriate “where the plaintiff presents a colorable claim. … 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.”  91 Cal. App. 4th at 874-875. 

            The Rosenman court found that the facts in Saret-Cook v. Gilbert, Kelly, et al., 74 Cal. App. 4th 1211 (1999), which were “almost unbelievably extreme” illustrate the type of record necessary to support a finding of unreasonable, frivolous, or vexation action.

            In Saret-Cook,[13] the court described the facts as “a real-life tragedy similar to the movie Fatal Attraction.”  74 Cal. App. 4th 1211.  The plaintiff in Saret-Cook had an extramarital affair with her supervisor.  After the affair ended, the plaintiff stalked and threatened to destroy him and his family, engaged in elaborate lies, and repeatedly called his wife and subjected her to derogatory names and insults.[14]

            After having signed a settlement agreement, Saret-Cook filed a lawsuit alleging sexual discrimination and harassment under FEHA and other workplace torts.  The supervisor filed a cross-complaint.  After trial, the jury awarded the supervisor $525,000 in compensatory and punitive damages, and found in the defendants’ favor on Saret-Cook’s complaint.

            In Saret-Cook, the Plaintiff simply lied about what happened to her, acknowledged her lies during the case, and harassed the defendants and third party witnesses.  74 Cal. App. 4th at 1229.  Saret-Cook’s own attorney admitted that Saret-Cook had psychological problems that caused her to lie, and her psychiatrist opined that she might lie to the jury to avoid looking bad.  During closing arguments, Saret-Cook’s attorney conceded that some of her testimony had been false.

            Saret-Cook, which the Rosenman court found “illustrates the type of record required to support a finding of unreasonable, frivolous and vexatious action,” is clearly distinguishable from this case.  Plaintiff has never stalked, harassed, or threatened Defendant or its witnesses, he has not lied, and he has not filed a lawsuit after having settled the claims raised in the lawsuit.[15]

            John Cook’s claims are stronger than claims in other cases which courts have refused to find frivolous.  For example, in Jersey v. John Muir Medical Center, ___ Cal. App. 4th ___ (2002 LEXIS 3971)(4/16/02, 1st Appellate District), summary judgment was granted because the plaintiff presented no competent evidence to controvert the defendant’s alleged legitimate nondiscriminatory reason for firing the plaintiff.  However, the Court of Appeal found the trial court’s award of attorneys’ fees to the defendant to be an abuse of discretion.  While summary judgment was proper, the case was not unreasonable, frivolous, meritless or vexatious.  2002 LEXIS at * 29.

            In Hon v. Marshall, 53 Cal. App. 4th 470, 476-477 (1997), the court held that a FEHA defendant does not prevail, and is not entitled to attorneys’ fees, when the court grants summary

judgment of the plaintiff’s claims because she failed to exhaust her administrative remedies.  Such a dismissal is for lack of jurisdiction, and the merits of the underlying discrimination claims have not been addressed.  53 Cal. App. 4th at 476-477.

            Similarly, in the case at bar, this Court held that most of Plaintiff’s claims were barred by the statute of limitations.  It did not address the merits or facts involving those earlier promotions.  Under the circumstances, Defendant is not the “prevailing party” on those claims for purposes of an award of attorneys fees.  Furthermore, no finding of frivolity can be made when the underlying facts have not even been addressed.

            This case is significantly distinguishable from the cases in which attorneys’ fees have been awarded to defendants.  For instance, in Linsley v. Twentieth Century Fox Film Co., 75 Cal. App. 4th 762, 767 (1999), the plaintiff had executed a release governing the very claims he later filed in court, and the case was found frivolous, unreasonable or groundless due to the signed release.  John Cook did sign any release.

            In Bond v. Pulsar Video Productions, 50 Cal. App. 4th 918 (1996), the plaintiff’s race discrimination claim was premised on an allegation that his employer demanded that he represent himself as African-American, when he was of mixed races and considered himself Native American.  The trial court found that the action was not only frivolous and without foundation, but also brought in bad faith in violation of CCP § 128.5.  50 Cal. App. 4th at 918, 925.  There is absolutely no evidence that Plaintiff John Cook brought this case in bad faith, and Plaintiff Cook submitted significantly more evidence of discrimination than the plaintiff in Bond.

            In Gonzales v. Metpath, Inc., 214 Cal. App. 3d 422 (1989), the plaintiff not only failed to present a prima facie case, she also offered no evidence of pretext.  Id. at 426, 427.  In the case at bar, it cannot be seriously disputed that Plaintiff set forth a prima facie case of discrimination.  This Court found simply that Plaintiff did not present enough evidence of pretext, finding Plaintiff’s numerous facts demonstrating pretext to be insufficient to create a question of fact.

             Guthrey v. State of California, 63 Cal. App. 4th 1108 (1998), was only certified for partial publication.  (See, * footnote on p. 1108).  Exhibit I.  The portion of the opinion addressing attorneys’ fees in the trial court, Part II.-A, was not certified for publication.  63 Cal. App. 4th at 1126.  Exhibit I.  The published portion of Guthrey addressed attorneys’ fees only for a frivolous appeal, which is not at issue here.

             The case at bar is similar to Curran v. Southeastern Penn. Transport. Auth. (SEPTA), 109 F. Supp. 2d 394 (E.D. Pa. 2000).  In Curran, the court granted summary judgment of the plaintiff’s civil rights claim, and the defendant sought an award of attorneys’ fees against the plaintiff.

            In Curran, the plaintiff submitted “no less than 36 exhibits in opposition to defendant’s motion for summary judgment,” and the court found  “the sheer amount of evidence belies the notion that the claim was frivolous.”  109 F. Supp. at 397.

            Here, Plaintiff Cook submitted 58 exhibits and a 55-page separate statement of facts.  The sheer amount of evidence belies the notion that this case is frivolous.         

A.            Noted Employment Discrimination Attorney John M. True, III, Agrees that this Case Does Not Meet the High Threshold Required for an Award of Attorneys’ Fees and Costs to Defendant.


            The standard for determining that a lawsuit is frivolous is high: “any reasonable attorney would agree that the action is totally and completely without merit.”  Winick Corp. v. County Sanitation District No. 2, 185 Cal. App. 3d 1170, 1177 (1986); Staples v. Hoefke, 189 Cal. App. 3d 1397, 1418 (1987); M.E. Gray Co. v. Gray, 163 Cal. App. 3d 1025, 1034 (1985); Garcia v. Sterling, 176 Cal. App. 3d 17, 20-21 (1985).

            Plaintiff submitted both parties’ summary judgment papers, along with Defendant’s motion for attorneys’ fees, to John M. True, III, to review and provide an opinion whether this case meets the high threshold  for awarding fees to Defendant.

            Mr. True is a prominent employment lawyer with 26 years of experience.  Exhibit D, True Decl., ¶¶ 1-10.  Mr. True has reviewed the papers in this case and firmly opines that this case is not frivolous, unreasonable, or without foundation.  True Decl. ¶¶ 11-14.  Furthermore, Mr. True declares that this case has been pursued responsibly, not vexatiously.  Plaintiff seriously and thoroughly responded to defendant’s motion for summary judgment.  Id. at ¶¶ 15-16.



            Defendant bears the burden of proving the reasonableness of the attorneys’ fees it seeks.  Guam Soc. of Obstetricians and Gynecologist v. Ada, 100 F.3d 691, 696 (9th Cir. 1996).

            Defendant asserts that Plaintiff  “forced his employer to spend nearly $200,000 to defend a baseless and frivolous case.” (Def. Pts & Authorities, p. 8:14-15).  Plaintiff did not “force” defense counsel to spend almost twice the amount of time on this case that Plaintiff’s counsel spent.

            Defense counsel claim to have spent 863.2 hours on this case through summary judgment.  Plaintiff’s counsel Julia Sherwin and Michael Haddad spent only 481.95 attorney hours and 19.40 paralegal hours.[16]  The excessive and unreasonable hours defense counsel claim to have spent on this case are illustrated when compared with the amount of time Plaintiff’s counsel spent:

           Mr. Diekmann claims he spent 39 hours preparing for Plaintiff’s deposition, and another 13.8 hours reviewing documents and selecting Plaintiff’s deposition exhibits.


            Mr. Diekmann asserts that he spent 29.8 hours outlining Plaintiff’s deposition, not including review of documents and selection of exhibits, on February 18, 19, 21, 22, 26, 27, and 28, 2001.  The first deposition of Plaintiff took only 5.1 hours.  Mr. Diekmann then claims he spent another 9.2 hours on March 16, 19, 22, and 23, 2001, preparing for Plaintiff’s second deposition.

            The 39 hours Mr. Diekmann claims he spent preparing for Plaintiff’s deposition does not include the 13.8 extra hours he claims to have spent reviewing documents and selecting exhibits for Plaintiff’s deposition on February 15, 16, 20, and 21, 2001.

           Mr. Diekmann claims to have spent 11.5 hours preparing to meet Ms. Ah-Tye and Mr. Da Silva in preparation for their abbreviated, 3-hour depositions.


            Mr. Diekmann asserts he spent 11.50 hours on June 13, 14, and 18, 2001, in preparation for the abbreviated 3 hour depositions and preparing for pre-deposition meetings with Ms. Ah-Tye and Mr. Da Silva.

            In contrast, Plaintiff’s counsel spent only 4.6 hours preparing to meet with Mr. Cook before his deposition and meeting with him to prepare him for his deposition.  For the abbreviated depositions of Ms. Ah-Tye and Mr. Da Silva, Plaintiff’s counsel spent a total of 9 hours preparing for the depositions, taking the depositions, and meeting with the Plaintiff.

            Defense counsel claim to have spent 3.6 hours writing a routine initial case management conference statement.


            Messrs. Diekmann and Spitalnik claim that they spent 3.6 hours on their initial case management conference statement, on February 5, 6, 7, 8, 9, 12, and 13, 2001.  In contrast, Plaintiff’s counsel spent a total of 1.1 hours on Plaintiff’s initial case management conference statement, Plaintiff’s biographical statement, and discussing Plaintiff’s deposition with defense counsel.  Both parties’ initial CMC statements are attached as Exhibit F.

            Defense counsel claim to have spent 62.6 hours on Plaintiff’s two motions to compel (which Defendant lost) and on Defendant’s supplemental discovery responses occasioned by those motions.


            Plaintiff was required to file two separate motions to compel in this case after Defendant failed to comply with two separate agreements to provide further responses to two sets of discovery.  Defense counsel assert that they spent 62.6 hours on November 12, 13, December 26, 30, and 31, 2001, and January 4, 14, 15, 21, 22, 23, 24, 25, 27, 31, February 6, 7, 8, March 8, 9, 11, and 25, 2002, in connection with Plaintiff’s two motions to compel. 

            Each of Plaintiff’s motions to compel should have been unnecessary, both of the motions were completely successful, requiring Defendant to produce further discovery responses.  Plaintiff’s counsel rarely ever has to file a motion to compel, as she is usually able to come to an agreement concerning discovery her opponent will produce.   In this case, the first agreement, confirmed by Plaintiff’s counsel in a 6-page letter on August 27, 2001, was repudiated by defense counsel in response to Plaintiff’s motion to compel further responses to Plaintiff’s first document request.  After opposing the motion to compel, defense counsel ultimately stipulated to producing all documents sought by Plaintiff. Thereafter, Plaintiff’s counsel insisted that any agreement with defense counsel be set forth in a written stipulation signed by defense counsel.

            The second motion to compel – this time to compel further responses to Plaintiff’s first interrogatories and second document request – was necessitated by defense counsel’s refusal to acknowledge or comply with a written discovery stipulation he signed.  Plaintiff recently received the order granting that motion to compel.  Exhibit G.

            Each of these motions to compel should have been unnecessary, and each of them was the result of Defendant’s intransigent abuse of the discovery process.  Defense counsel’s own time records state that they had “problems with getting necessary discovery documents from SCIF.”  (Diekmann bill January 24, 2002).  Under no circumstances should Defendant be reimbursed for any of its attorneys’ fees related to these motions to compel.

            In contrast to the 62.6 hours defense counsel assert they spent on Plaintiff’s two motions to compel, Plaintiff’s counsel spent a total of 32.7 hours on both motions, researching and writing all moving and reply papers, including lengthy separate statements of items in dispute, extensive declarations and briefs, and preparing for and arguing both motions.

           Mr. Diekmann claims to have spent 5.3 hours reviewing Volumes I and II of Suzanne Ah-Tye’s deposition.


            Mr. Diekmann asserts that he spent 2.7 hours on October 22 and 23, 2001, reviewing the 125-page Volume I deposition of Suzanne Ah-Tye, and 2.6 hours on December 10 and 11, 2001, reviewing the 201-page Volume II deposition of Suzanne Ah-Tye.  Mr. Diekmann asserts that he spent a total of 5.3 hours just reviewing those two transcripts.

            In contrast, Plaintiff’s counsel spent a total of 3.6 hours reviewing both volumes I and II of Ms. Ah-Tye’s deposition, plus the 225-page Volume II Deposition of Fred Da Silva, plus writing extensive notes about these witnesses’ testimony to include in Plaintiff’s Separate Statement of Facts.

            Defense counsel claim to have spent approximately 173 hours on Defendant’s motion for summary judgment.


            Defendant counsel billed their client for approximately 173 hours for work on their motion for summary judgment.[17]  Defense counsel assert that they did this work in connection with their motion for summary judgment:  in 2001:  on April 2, 27, May 3, July 10, July 16, August 23, September 19, October 8, 9, 10, 16, 21, 25, 26, 28, 29, 30, November 6, 7, 8, 19, 20, December 4, 5, 6, 7, 9, 10, 11, 12, 13, and 14; and in 2002:  on January 15, February 21, 26, 28, March 1, 2, 3, 4, 5, 6, 7, 8, 12, 13, 14, April 9, 10, and 11.

            It would take two attorneys -- working on nothing but Defendant’s summary judgment motion for more than two weeks, more than full time -- to amass the 173 hours defense counsel claim to have spent on their motion.

            Significantly, Defense counsel’s work on this case does not include reading most of the depositions taken.  Defense counsel wrote their summary judgment motion after only Plaintiff’s deposition and partial depositions of Ms. Ah-Tye and Mr. Da Silva were completed.  Defense counsel did not read the many witness depositions taken thereafter. [18]

            In contrast to the 173 hours defense counsel claim to have worked on their motion for summary judgment, Plaintiff’s counsel spent a total of 97.50 attorney hours on the motion for summary judgment, including 14.85 hours to read all of the depositions and write extensive notes about testimony to include in the separate statement of facts, and 28.25 hours on the 55-page separate statement of facts.

           Mr. Diekmann claims to have spent more than 12.8 hours drafting and revising the declarations of Suzanne Ah-Tye and Fred Da Silva in support of Defendant’s motion for summary judgment.


            Mr. Diekmann claims that he spent 12.8 hours on November 19, 20, 27, and December 7, 2001, drafting and revising the 5 page, 14 paragraph declaration of Suzanne Ah-Tye and 9 page, 21 paragraph declaration of Fred Da Silva that Defendant filed in support of its motion for summary judgment.  Mr. Diekmann claims to have spent further, unspecified time on those declarations on December 12, 2001.  These two witness declarations are attached as Exhibit H.  A brief review of them makes clear that no reasonable attorney -- especially one with over 30 years of experience -- should require almost 13 hours to work on them.

            Defense counsel have exercised no billing judgment, and have also billed their client at an attorney rate for mundane paralegal tasks.


            An applicant for attorneys’ fees must exercise “billing judgment” to ensure that the fees sought are reasonable.  Hours that are not properly billed to one’s client are not properly billed to one’s adversary.  Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

            The only billing judgment Defense counsel have exercised on this case was not charging for the 2.70 hours Mr. Spitalnik spent sitting in on Plaintiff’s deposition that Mr. Diekmann took, and not charging for the 5 hours Mr. Spitalnik spent at the mediation handled by Mr. Diekmann.

            If an attorney performs mundane tasks that could be performed by a paralegal, such as filing documents, those services should be billed at the hourly rate appropriate for paralegals, not attorneys.  Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992).

            Plaintiff’s counsel have spent 19.40 paralegal hours on this case.  Defense counsel have billed only .5 hours at a paralegal rate and .2 hours at a librarian rate.  Defense counsel have billed their client at an attorney rate for mundane tasks such as filing documents in court, and organizing defense counsel’s file.  (For example, see Spitalnik time records for December 22, 2000 and September 6, 2001, Diekmann time records for July 6 and December 28, 2001).

            In Curran v. SEPTA, supra, the court found that the defendant engaged in “litigious overkill, which the plaintiff “could not have foreseen.”  109 F. Supp. at 399 n.8.  The court stated:  “It is not plaintiff’s fault that SEPTA bought a tuxedo for a hayride.”  109 F. Supp. at 399.

            At best, Defendant SCIF’s counsel are incredibly inefficient.  At worst, they have churned this case and grossly over-billed their client, a state agency.  In either case, it is not Plaintiff’s fault that Defendant claims to have “bought a tuxedo for a hayride.”  Plaintiff John Cook could not have foreseen the irresponsible and “litigious overkill” in which defense counsel engaged in this case, and Defendant’s attorneys’ fees must remain its own responsibility. 



            Defendant improperly relies on cases in which a civil rights plaintiff was a prevailing party, to support its assertion that it is entitled to recover all attorneys’ fees incurred. 

            As explained above, the policy considerations favoring full compensation for civil rights plaintiffs’ attorneys fees do not support full award of fees to Defendant.  A fee award to a defendant is not meant to make the defendant whole, but only to deter the bringing of further frivolous lawsuits.  Christiansburg, supra, 434 U.S. at 420, 418-419.

            Plaintiff has never filed a lawsuit before or since this case, aside from a minor small claims action decades ago.  He does not need to be deterred from filing frivolous lawsuits.  Had Defendant merely followed its own policies and California law in promoting attorneys, and had it not maintained a discriminatory promotion system for years, this case would not have been filed.

            Even where a case is frivolous, any attorney fee award should take into consideration mitigating factors, such as “the relative economic status of the litigants.”  Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th Cir. 1983).

            In this case, Defendant State Fund is a multibillion dollar corporation that had a net income in 2001 of $186.9 million.  Exhibit J,  SCIF Financial Statement.  Additionally, Defendant has Employment Practices Liability Insurance to cover employment discrimination claims, including this case (see Diekmann bills dated July 2, 5, 6, 7, 10, 2001).

            Plaintiff is a 68-year-old, lifelong civil servant who has given Defendant 40 years of his life.  He has a stellar work record as a loyal SCIF employee.  He lives alone in a modest 2 bedroom condominium.  His largest asset is his PERS retirement account.  Cook Decl. ¶¶ 4 – 28.

            Being continuously denied promotion since 1991 has already cost Plaintiff well over $375,000 in wages and pension benefits, and he has incurred significant litigation costs in prosecuting this case.  Exhibit K, preliminary summary of economic loss; Cook Decl. ¶ 23.  “An award of attorney fees should not subject the plaintiff to financial ruin.”  Rosenman, 91 Cal. App. 4th 859 at 868 n 42.

            Furthermore, an award of fees to Defendant in this case would deter other employees of Defendant who have been discriminated against from exercising their right to seek vindication in court as private attorneys general.  Mitchell v. Office of the LA Superintendent of Schools,  805 F.2d 844, 848 (9th Cir. 1986)(reversing $72,933.75 fee award after defendant won 2 and a half day trial, stating:  “the chilling effect upon civil rights plaintiffs would be disproportionate to any protection defendants might receive against the prosecution of meritless claims.”).

            Defendant’s motion should be denied in its entirety.  However, if this Court has any inclination to grant Defendant’s motion, given the earlier cited examples of Defense counsel’s overbilling, Plaintiff requests complete discovery of Defendant’s contemporaneous time records for the dates they contend they worked on this case, including all cases they assert they worked on those dates.


            For these reasons, Plaintiff requests that Defendant’s motion be denied in its entirety.  If this Court has any inclination to grant Defendant’s motion, Plaintiff requests discovery of Defendant’s contemporaneous time records for the dates they claim they worked on this case.

                                                                        Respectfully Submitted,

DATED:  May 6, 2002                                    HADDAD & SHERWIN





                                                                        JULIA SHERWIN

                                                                        Attorneys for Plaintiff

[1] Because this Court decided Defendant’s motion for summary judgment, and Plaintiff presented extensive facts and evidence in support of his opposition to that motion, Plaintiff will not reiterate the underlying facts here.  Plaintiff’s separate statement and brief in opposition to summary judgment are attached as Exhibits A and B for the convenience of the Court.

[2] A systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.  Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982).  Discriminatory promotion practices implemented long before a lawsuit is brought are actionable if they continue into the limitations period.  Richards at 813; see also, City and County of San Francisco v. FEHC, 191 Cal. App. 3d 976, 983 (1987) (continuing violations doctrine applied to discriminatory civil service promotion practice using ranked eligibility list, the use of which continued into limitations period).

[3] While Defendant asserts that Plaintiff was not qualified for the Oakland Attorney-in-Charge position, Fred Da Silva sent Plaintiff an e-mail noting that Plaintiff’s qualifications for that position were “superb.”  (Plf. Sep. Statement, Fact  # 8(k), Summary Judgment Exhibit EEE).

[4] A negative evaluation may constitute an adverse employment action.  Kortan v. California Youth Authority, 217 F.3d 1104, 1112 (9th Cir. 2000).  See also, Ingram v. Missouri Pacific Railroad Co., 897 F.2d 1450, 1456-1457 (8th Cir. 1990)(finding discrimination and awarding retroactive promotion where plaintiff received negative evaluation and supervisor failed to recommend for promotion:  “The discrimination he suffered by Hart’s negative evaluation and failure to recommend was not just the denial of an opportunity, but of a promotion itself.”); Collins v. State of Illinois, 830 F.2d 692, 698-699 (7th Cir. 1987)(prima facie case of discrimination made where plaintiff received more frequent and negative evaluations).

[5] Defendant asserts that Plaintiff should have known that this case was “frivolous” because the DFEH consultant, based on an extremely limited review,  stated she might issue a ‘no cause’ finding.  First, no such finding was issued.  Second, the DFEH consultant’s hearsay statement is inadmissible.  Third, even if a DFEH “no cause” finding were issued, Plaintiff is entitled to a de novo trial of his claim in court.  Plummer v. Western Int’l. Hotels Co., Inc., 656 F.2d 502, 504 (9th Cir. 1981).

[6] However, Plaintiff did not depose a number of percipient witnesses, including: Defendant’s Chief Counsel Richard Krimen; the person who approved the illegal appointment of Suzanne Ah-Tye to Attorney-in-Charge;  the several employees whom Defendant asserted had made complaints about Plaintiff that contradicted his stellar work records; Elaine Diani, the person whom Defendant contends made the decision to promote one of the comparators, and whose declaration Defendant submitted in support of its motion; and State Personnel Board and Department of Personnel Administration employees concerning Defendant’s violations of civil service laws, which are evidence of discriminatory motive.  Stewart v. Rutgers, 120 F.3d 426, 433-34 (3rd Cir. 1997)(selection rules violated); Bray v. Marriott Hotels, 110 F.3d 986 (3rd Cir. 1997)(same); Almendral v. New York Office of Mental Health, 743 F.2d 963 (2nd Cir. 1984)(manipulation of civil service rules).

[7] Additionally, Defendant inconsistently Bates-stamped its documents, jumping from  page #1714 to page #3000.


[8] Freedom from discrimination in employment is a fundamental right in California that affects everyone.  See Rojo v. Kliger, 52 Cal.3d 65, 89-90 (1990) (freedom from workplace discrimination is a “fundamental right;” when workplace discrimination exists, “we are all demeaned”). 

[9] A prevailing plaintiff “should ordinarily recover an attorney fee unless special circumstances would render such an award unjust.”  Newman v. Piggie Park, 390 U.S. at 402.

[10] Richards was not decided until August, 2001, almost a year after Plaintiff had filed the present action.

[11] Indeed, Plaintiff’s counsel spent over 480 uncompensated hours on this matter.  Plaintiff’s counsel could not afford to, and would not have, pursued this case if they did not believe Plaintiff presented viable claims on which he had a strong chance of success.

[12] An action cannot be deemed frivolous or groundless if it is based on an unsettled question of law.    Hurley at 427.

[13] Defendant relies on Saret-Cook to support its motion.  However, as will be discussed, that case is completely inapposite to the case at bar.

[14] The facts of the Saret-Cook case, which are quite egregious and detailed, are described at pp. 1216-1225 of the opinion.

[15] Defendant makes the bold assertion that Plaintiff “harassed” the people who were promoted over him simply by taking their depositions.  Any case involving a failure to promote will involve depositions of the comparators, decision-makers, and people knowledgeable about promotion and employment policies and practices.  Plaintiff was careful to schedule the witnesses’ depositions at times that were convenient for the witnesses,  to keep them brief, and to thank the witnesses for their time.  If Defendant truly felt that those depositions were harassing, they could have moved at that time for a protective order.

[16]  The work of Plaintiff’s co-counsel, Peter Elkind, has been essentially limited to attending the mediation and giving brief advice to Haddad & Sherwin.

 It is helpful for courts to consider the amount of time that Plaintiff’s counsel spent on the litigation.  Chalmers v. City of Los Angeles, 796 F.2d 1205, 1214 (9th Cir. 1986)(“[W]e have no counter affidavits from the City indicating the amount of time it expended in litigating this case.  Certainly that kind of information would be helpful to us.  Nevertheless, we do have our own experience in considering the issues raised in this appeal and believe that despite documentation submitted to us, it is necessary to reduce the number of hours claimed to have been expended on the ground that they were not reasonably expended”). 

[17] Because Mr. Spitalnik does not separate his hours worked by task, it is difficult to add the exact number of hours defense counsel claim to have spent on activities related to their motion for summary judgment.  This 173 hour figure is accordingly conservative, as entries that are not clearly time spent in connection with the motion are omitted.

[18] The irony of Defendant asserting that Plaintiff had “no evidence” and “no facts” for his discrimination claims, when its counsel did not even bother to read most of the witness depositions in this case, is noteworthy.