Yoshimoto v. O'Reilly Automotive, Inc. et al

Filing 158

ORDER by Judge Hamilton denying (143) Motion for Attorney Fees in case 4:10-cv-05438-PJH; denying (103) Motion for Attorney Fees in case 4:11-cv-03119-PJH (pjhlc2, COURT STAFF) (Filed on 5/5/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NORMAN YOSHIMOTO,

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Plaintiff,

No. C 10-5438 PJH
No. C 11-3119 PJH

v.

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O'REILLY AUTOMOTIVE, INC., et al.,

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ORDER DENYING MOTION FOR
ATTORNEYS’ FEES

Defendants.
_______________________________/

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For the Northern District of California

United States District Court

Related cases:

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Before the court is defendant CSK Auto, Inc’s (“defendant”) motion for attorneys’

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fees, brought against plaintiff Norman Yoshimoto (“plaintiff”). Defendant seeks

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$398,145.51 in fees and costs, pursuant to Cal. Gov’t Code section 12965(b) (California’s

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Fair Employment and Housing Act, or “FEHA”) and 42 U.S.C. section 20003-5(k) (Title VII).

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These statutes allow attorneys’ fees to be awarded to a defendant if the plaintiff’s claim was

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“frivolous, unreasonable, or groundless,” or if “the plaintiff continued to litigate after it clearly

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became so.” Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also

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Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1386-87 (1992). The court

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finds that plaintiff’s claims do not meet the Christianburg standard, and thus DENIES

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defendant’s motion for attorneys’ fees as follows.

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The facts of this case are set forth in this court’s order granting defendant’s motion

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for summary judgment. See Case No. 4:10-cv-5438 (“Yoshimoto I”), Dkt. 132; Case No.

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4:11-cv-3119 (“Yoshimoto II”), Dkt. 94. While summary judgment was granted on each of

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plaintiff’s claims, the order made clear on several occasions that plaintiff’s claims were not

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“frivolous, unreasonable, or groundless.”

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For instance, in Yoshimoto I, plaintiff alleged (among other things) that defendant

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discriminated against him based on race and national origin, and engaged in race-based

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harassment. For support, plaintiff alleged that at a Christmas party held on December 7,

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1998, a member of upper management made the announcement that it was “Jap Day -

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Pearl Harbor Day and here is to your ancestors” (pointing to plaintiff) and then said “Tora

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Tora Tora.” See Yoshimoto I, Dkt. 114 at ¶ 10. From 1999 through 2008, plaintiff claims

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that he received a phone call every December 7 from the same manager, who would say

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“Tora Tora Tora, you dick.” Id.

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With regard to the discrimination claims, the court agreed that the comments were

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“clearly inappropriate,” and “accept[ed] those comments as evidence of a possible

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discriminatory motive, at least for purposes of establishing a prima facie discrimination
case.” Yoshimoto I, Dkt. 132 at 17, 19; Yoshimoto II, Dkt. 94 at 17, 19. And while the court

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For the Northern District of California

United States District Court

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ultimately found that plaintiff was not performing his job satisfactorily at the time of any

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adverse action, and thus could not establish a prima facie case of discrimination, the court

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did continue to address the McDonnell-Douglas burden-shifting test by assuming that

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plaintiff could indeed meet all four elements of a prima facie discrimination case. Thus, the

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court does not find that plaintiff’s race and national origin discrimination claims were

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“frivolous, unreasonable, or groundless,” even though the court ultimately found that, even

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if plaintiff were able to establish a prima facie case, defendant had legitimate, non-

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discriminatory reasons for any adverse action, and plaintiff failed to tie the “Tora Tora Tora”

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comments to any adverse action.

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With regard to the harassment claim, while the court ultimately followed the Ninth

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Circuit’s ruling in Manatt v. Bank of America and found that the comments were not

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“sufficiently severe or pervasive enough to alter the conditions of employment,” the court

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did agree that the comments were “doubtlessly offensive,” and thus does not find that

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plaintiff’s harassment claim was “frivolous, unreasonable, or groundless.”

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In Yoshimoto II, a number of plaintiff’s claims alleged that defendant discriminated

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against him based on age. Plaintiff presented evidence regarding defendant’s “district

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managers and regional managers in their 40s and 50s who were demoted or terminated

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and replaced with younger workers for less pay.” Yoshimoto I, Dkt. 132 at 40; Yoshimoto
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motive” underlying defendant’s decision to terminate plaintiff. Id. at 40-41. However,

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because the court found that plaintiff had engaged in “egregious” conduct immediately

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before his termination (specifically, yelling at a customer in a store that he was managing),

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the court was compelled to find that plaintiff was not satisfactorily performing his job at the

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time of termination, that defendant had a legitimate, non-discriminatory reason for the

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termination, and that plaintiff was not “similarly situated” to the other older employees who

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were demoted or terminated. In fact, the court noted that “if plaintiff’s conduct had not been

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so egregious, the court might be inclined to find that plaintiff has indeed raised a triable

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issue of fact as to whether his own termination was the result of a discriminatory motive.

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For the Northern District of California

II, Dkt. 94 at 40. The court accepted the evidence as “relevant to a possible discriminatory

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United States District Court

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However, after yelling at a customer in his store (including the phrase “fuck you and your

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BMW”), plaintiff cannot raise a triable issue as to whether his termination was actually the

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result of discrimination.” Id. at 41. Here, the court notes that while plaintiff’s conduct was

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egregious, that does not mean that his claims were “frivolous, unreasonable, or

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groundless.”

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Even if the court were to find that some of plaintiff’s claims not specifically mentioned

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in this order were frivolous, the Supreme Court has held that, in order to award fees, the

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court must determine “whether the costs would have been incurred in the absence of the

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frivolous allegation,” and may only award to a defendant the “portion of his fees that he

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would not have paid but for the frivolous claim.” Fox v. Vice, 131 S.Ct. 2205, 2209-10

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(2011). The Ninth Circuit does not allow the court to “simply divide[] a defendant’s total

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attorneys’ fees equally across plaintiff’s frivolous and non-frivolous claims and attribute[] to

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the frivolous civil rights claims a pro-rata share of those total fees (with no demonstration

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that such fees were in fact incurred solely to defend against the frivolous claims.” Harris v.

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Maricopa County Superior Court, 631 F.3d 963, 972 (9th Cir. 2011). Instead, because the

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defendant bears the burden of establishing entitlement to fees, it must “demonstrate that

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the work for which it asserts that is entitled to fees would not have been performed but for

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the inclusion of the frivolous claims in the complaint.” Id.
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Defendant instead seeks to recover all fees incurred in the case, arguing that the

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entirety of both Yoshimoto I and Yoshimoto II were “frivolous, unreasonable, groundless, or

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vexatious at the outset.” As set forth above, the court disagrees with that characterization.

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The court further notes that defendant seeks fees incurred in connection with a motion for

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summary judgment that the court largely denied and ordered defendant to re-file, because

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the original motion resulted in a “muddling of the issues, theories and arguments,” making it

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“impossible for the court to rule definitively on any particular cause of action.” Yoshimoto I,

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Dkt. 107; Yoshimoto II, Dkt. 70. In short, defendant has failed to demonstrate that it is

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entitled to any of its requested fees, let alone all of its requested fees. For these reasons,

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For the Northern District of California

United States District Court

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the court finds that defendant’s motion must be DENIED.
The court’s ruling is further strengthened by the fact that plaintiff lacks the ability to

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pay any fee award. See Miller v. Los Angeles County Bd. of Education, 827 F.2d 617, 621

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(9th Cir. 1987); Villanueva v. City of Colton, 160 Cal.App.4th 1188, 1203 (2008). Plaintiff

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has submitted a declaration stating that his total compensation in 2013 was approximately

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$800, that he owns no real property, and that his checking account balance is $200. See

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Yoshimoto I, Dkt. 153; Yoshimoto II, Dkt. 111. The court finds that any award that even

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approaches the $398,145.51 sought by defendant would subject plaintiff to “financial ruin.”

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See Miller at 621. Even the reduced amount of $79,629.10 that defendant suggests in its

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reply extends beyond plaintiff’s ability to pay. While the court’s ruling is not based solely on

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plaintiff’s inability to pay, the court does consider it as a factor, especially in light of the

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sizeable nature of the award sought by defendant.

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Finally, the court DENIES plaintiff’s request for sanctions.

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IT IS SO ORDERED.

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Dated: May 5, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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