OGDEN GROUND SERVICES, INC., a Delaware Corporation; OGDEN SERVICE CORPORATION, a Business Entity; OGDEN AVIATION SERVICES, a Business Entity; DENNIS BLAIR, an Individual; and DOES 1 through 50, Inclusive,


No. BC182499

(Case Assigned to Hon. S. James Otero)


DATE: April 28, 1999

TIME: 8:30 a.m.

DEPT.: 68

Plaintiff John F. Stiffler provides the following memorandum of points and authorities in opposition to the motion filed by Defendants Ogden Ground Services, Inc., Ogden Service Corporation and Ogden Aviation Services for attorneys’ fees and costs pursuant to California Code of Civil Procedure Section 12965(b):


I. Introduction.

This action arose out of the wrongful termination of Plaintiff John F. Stiffler from his employment with Defendants Ogden Ground Services, Inc., Ogden Aviation Services and Ogden Service Corporation (hereinafter collectively "Ogden"). Plaintiff commenced his lawsuit on December 9, 1997, alleging ten separate causes of action, including one cause of action for age discrimination.

On February 19, 1999, after a jury trial, the jury found in favor of Plaintiff on his claims for breach of contract and breach of the implied covenant of good faith and fair dealing, and awarded Plaintiff damages in the sum of $368,785 against the Ogden Defendants. The jury found in favor of Ogden as to the age discrimination claim.

Ogden has now filed a motion seeking an award of attorney’s fees. Ogden is not entitled to recover attorney’s fees, because the age discrimination action was not frivolous, unreasonable or groundless. Accordingly, Ogden’s motion must be denied in its entirety.

II. The Ogden Defendants Are Not Entitled To Attorney’s Fees Because Plaintiff’s Age Discrimination Claim Was Not Frivolous, Unreasonable Or Groundless.

The standard for the recovery of attorney’s fees by a successful defendant in a discrimination action brought under California’s Fair Employment and Housing Act is set forth in Cummings v. Benco Bldg. Services (1992) 11 Cal. App. 4th 1383, 15 Cal. Rptr. 2d 53. In Cummings, the court of appeal found that the trial court had abused its discretion in awarding attorney’s fees to a defendant in whose favor summary judgment had been entered in a discrimination action. The Cummings court explained that a plaintiff who loses a discrimination claim should not be assessed his opponent’s attorney’s fees unless the court finds that the Plaintiff’s claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Cummings, supra, at 1388, 15 Cal. Rptr. 2d at 56 (citing Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412, 421, 98 S. Ct. 694, 700, 54 L.Ed. 2d 648). The court cautioned that in determining whether a Plaintiff’s discrimination claim was frivolous, unreasonable or groundless, the trial court should

" ‘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….’"

Cummings, supra, at 1388, 15 Cal. Rptr. 2d at 56 (quoting Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412, 421-422, 98 S. Ct. 694, 700-701, 54 L.Ed. 2d 648). Thus, unless the Court finds that Plaintiff’s age discrimination claim was frivolous, unreasonable or groundless, an award of attorney’s fees is improper.

Plaintiff’s age discrimination claim was neither frivolous, unreasonable nor groundless. Plaintiff presented substantial evidence of discrimination at trial, including, but not limited to evidence that Plaintiff was 61 at the time of his termination; that a similarly situated employee under the age of 40, Randall Davies, was not terminated for engaging in the same conduct for which Plaintiff was allegedly terminated; that Plaintiff was replaced by Arthur Degirman, who was in his 30s at the time; that discriminatory animus towards older employees in the form of ageist comments was exhibited by two of the individuals involved in the decision to terminate Plaintiff: Ronald Johnson and Judith Brandt; that Defendants were eliminating older employees from their ranks, and that Defendants had no legitimate reason to terminate Plaintiff’s employment. In fact, despite Defendants’ argument in their moving papers that Defendants had legitimate reasons for terminating Plaintiff’s employment, the jury found that they did not - the jury specifically found that Defendants lacked good cause for Plaintiff’s termination. The lack of good cause for Plaintiff’s termination was one of the elements of Mr. Stiffler’s age discrimination claim, as well as an element of some of his other claims.

Also supporting Mr. Stiffler’s discrimination claims was an admission by Dennis Blair that he told Stiffler he was being terminated for despicable conduct. There was absolutely no evidence presented by Defendants of any conduct which was anywhere close to despicable, and the jury obviously determined that Blair was untruthful in labeling Plaintiff’s conduct "despicable" since the jury found that Mr. Stiffler was terminated without good cause and in bad faith. The reference to despicable conduct demonstrates malice on the part of Defendants in terminating Plaintiff, malice which the jury could have found to be attributable to age discriminatory animus against him.

In addition to the evidence presented to the jury, there was substantial evidence of discrimination which Plaintiff was prohibited from presenting to the jury. This included statistical evidence to establish a pattern by Defendants of eliminating its older workers from its ranks. Plaintiff’s statistician, David Barker, Ph.D., looked at the ages of management level employees at Ogden’s Los Angeles location prior to Mr. Stiffler’s termination and subsequent to his termination, and found both that the percentage of managers over age 50 decreased dramatically after 1996 when Mr. Stiffler was terminated, and that the terminations of managers over the age of 50 were much higher than for managers under age 50 during the relevant time period. Copies of graphs showing these changes, as well as Dr. Barker’s statistical report and a declaration submitted by Dr. Barker in support of Plaintiff’s opposition to Defendants’ motion for summary judgment, are attached to the accompanying declaration of Iris Weinmann as Exhibits A, B, C & D, respectively.

Similarly, Plaintiff was precluded from showing to the jury a letter written by Ogden’s vice president of human resources, Judith Brandt, to the Department of Fair Employment and Housing which established that Randall Davies, an employee under the age of forty who was at the same level as Plaintiff in the organizational structure and who was more culpable than Mr. Stiffler with regard to the FAA issue was not terminated. In that letter Brandt states that Davies was demoted, although at trial, the testimony was that Davies was not demoted or otherwise disciplined in connection with his conduct relating to the FAA investigation. Brandt’s letter to the DFEH, a copy of which is attached to the accompanying declaration of Iris Weinmann as Exhibit E, also revealed inconsistencies in Ogden’s stated reasons for Mr. Stiffler’s termination. These inconsistencies support Plaintiff’s argument that the reasons for his termination were a pretext for discrimination.

Plaintiff was justified in relying on all evidence of age discrimination available to him in making his decision to include an age discrimination claim in his lawsuit. Although the Court ultimately determined that certain evidence could not be presented to the jury, the existence of this evidence demonstrates that the inclusion of an age discrimination claim was not frivolous, unreasonable or groundless.

Also to be taken into consideration is the fact that Plaintiff’s age discrimination claim survived both a motion for summary judgment and a motion for nonsuit. See Sanchez v. City of Santa Ana (9th Cir. 1990) 936 F.2d 1027, 1041 (denials of motions to dismiss and summary judgment may suggest that a plaintiff’s claims are not without merit).

Discrimination claims are difficult to prove. See, e.g., Clark v. Claremont University Center (1992) 6 Cal. App. 4th 639, 662, 670, 8 Cal. Rptr. 2d 151; Mixon v. Fair Employment and Housing Comm’n (1987) 192 Cal. App. 3d 1306, 1317, 237 Cal. Rptr. 884, 890. The fact that the jury did not believe that Plaintiff had satisfied his burden of proving discrimination by a preponderance of the evidence does not mean that Plaintiff’s discrimination claim was frivolous. In fact, Plaintiff’s age discrimination claim was validly brought, and was not frivolous or unreasonable. Accordingly, Defendants are not entitled to an award of attorney’s fees.

III. The Ogden Defendants Have Produced Insufficient Evidence To Substantiate The Amount of Fees They Are Seeking.

Even in the unlikely event this Court were inclined to grant the Ogden Defendants’ request for attorney’s fees, Defendants have produced insufficient evidence to substantiate the amount of fees they are seeking. Nine tenths of the claims against Ogden were not for discrimination, and there is no entitlement to attorney’s fees as to those claims, especially the ones on which Plaintiff prevailed. Yet Ogden claims, without explanation, that it is entitled to reimbursement for more than 75% of all the attorney’s fees it incurred in this action.

As discussed in Defendants’ moving papers, the determination of the proper award of attorney’s fees in a discrimination action is based on the calculation of the lodestar amount; i.e., the number of hours reasonably expended on litigation times the reasonable hourly rate. Serrano v. Priest (Serrano III) (1977) 20 Cal. 3d 25, 141 Cal. Rptr. 315; Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 321-322, 193 Cal. Rptr. 900, 906. Although Defendants have set forth the hourly rates of their attorneys, they have not provided the total number of hours spent defending the discrimination claim, nor have they provided a breakdown of each task performed and the amount spent on each task. Without such details, neither Plaintiff nor this Court can properly assess the reasonableness of the hours expended by counsel.

If this court determines that fees should be awarded to Ogden, then Ogden should be required to provide detailed records demonstrating what legal work was performed solely with respect to the age discrimination claim. Plaintiff must be given an opportunity to examine the tasks performed with respect to the age discrimination claim and the amount of time spent on each such task to determine whether the amount claimed is reasonable. Because such details were not provided, any award of fees would be improper.

IV. Conclusion.

Defendants are not entitled to an award of attorney’s fees or costs pursuant to Government Code Section 12965(b). Thus, Plaintiff respectfully requests that Defendants’ motion be denied in its entirety.



Attorneys for Plaintiff JOHN F. STIFFLER

d:stiffler/Oppn to Ogden Motion