MOORE, J.
On February 11, 2008, plaintiff Rene Rosales Jimenez filed a complaint for damages in the Orange County Superior Court against defendant Saddleback Memorial Medical Center (Saddleback), three named individuals, and 100 Does. The complaint alleged causes of action arising out of plaintiff's employment at Saddleback, including violations of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA); all undesignated statutory references are to the Gov. Code). His causes of action included harassment and retaliation, employment discrimination, failure to prevent employment discrimination and harassment, failure to accommodate his disability and failure to engage in a good faith interactive process to determine appropriate accommodations, wrongful and tortuous discharge in violation of public policy, unfair business practices (Bus. & Prof. Code, § 17200 et seq.), and intentional infliction of emotional distress. By the time the trial concluded, two of the three individuals named as defendants were no longer involved in the case, the court having sustained a demurrer and granted summary judgment in their favor. Rodney Butler was the sole remaining individual named as a defendant.
After a bench trial, the court found for defendants Saddleback and Butler on all causes of action. Plaintiff appealed. Defendants cross-appealed the denial of their request for attorney fees. We affirm.
Saddleback hired plaintiff in 1998 to work in the housekeeping department. In September of that year he was promoted to bus driver. As a driver, he provided "transportation services to [Saddleback] patients to their homes, off-site . . . facilities, throughout the hospital campus, and adjacent medical offices." An essential job function required demonstration of "the ability to safely and competently provide care and prevention in emergency situations and normal day to day procedures." The majority of Saddleback's patients are elderly. As a driver, plaintiff would be expected to assist the patients get on and off the bus. For some he may only need to lend an arm for guidance. For others, he may need to give moderate assistance.
While working for Saddleback, plaintiff was involved in a number of incidents that he claimed resulted in injuries. On October 1, 1999, he was instructing a new driver when the bus was rear-ended while stopped. Plaintiff claimed he experienced pain in his neck. He said the pain radiated into both arms and his low back. He filed a workers' compensation claim and received a stipulated award of $3,000 and future medical care at a 10 percent disability. In 2005, when examined by Dr. Arthur Leupold, plaintiff said he remained in constant pain from that incident, rating his pain as a seven on a scale of one to 10.
In February 2000, plaintiff claimed to have stepped in a hole while walking across grass at work. X-rays revealed a fracture in his right ankle. He underwent two surgeries on the ankle and received a stipulated award of $23,800 for a 32 percent disability. When he returned to work, he was restricted to driving only six hours a day. At the end of 2000, he was driving the bus at 25 miles an hour when the brakes purportedly locked and the bus stopped. Plaintiff claimed he suffered sharp pain in his neck, head, and low back as a result.
In April 2003, there was another traffic accident. Plaintiff claimed a vehicle struck the bus on the driver's side. He said it caused extreme pain in his neck (plaintiff rated it a 10 on a scale of one to 10), and resulted in his missing work for a "couple of days." In September of the same year plaintiff claimed to have injured his right knee while walking in a parking lot at Saddleback.
In March 2004, plaintiff's left ankle was injured when a car backed into him while he was loading a patient onto a lift. In October 2005, a bus again purportedly had a mechanical problem resulting in the bus stopping abruptly and hitting a curb, causing pain in plaintiff's neck, left shoulder, arm, and wrist.
On February 13, 2006, plaintiff was involved in a traffic collision while driving a patient home. He claimed the bus was struck twice on the front passenger side by a vehicle driven by a woman with dilated eyes and who was not supposed to be driving. He said that when the bus was struck his wrists bent and his entire body was shaken. He said he felt pain in both wrists and hands, and increased pain in his neck, back, right knee and both ankles. Three weeks later, on March 8, 2006, plaintiff was involved in another traffic collision while driving a patient home. This time the bus was struck on the driver's side door. Plaintiff said his wrists bent during the collision and the pain in his wrists increased, as did the pain over his entire body, including both ankles, knees, his neck and lower back.
There were patients in the bus each time plaintiff was involved in a traffic accident, yet he was the only person ever injured. Over the years he filed a number of workers' compensation claims as the result of his various injuries. He also obtained work restrictions from doctors. From time to time, restrictions included no heavy lifting or repetitive overhead work, no prolonged walking or standing, a six hour work day, no lifting over 40 pounds or prolonged weight bearing, no repetitive kneeling, squatting or stair climbing, and no bending, stooping, running, jumping, or walking on uneven ground. The restrictions were based in part on plaintiff's representations of his pain levels and physical limitations.
Saddleback accommodated plaintiff's purported injuries in a number of ways over the years, including modifying his work duties. He went on and off modified duty "on a fairly regular basis" from 2004 until March 2006. While on modified duty, he worked in the linen department for 30 minutes to two hours after completing his driving duties, folding small hand towels, baby clothes, and linens while seated. Additionally, Saddleback granted plaintiff a number of leaves of absence. While on short-term disability, Saddleback pays employees at least 60 percent of their salary, less payments received from state disability.
In March 2006, after plaintiff's last two vehicle accidents, Saddleback placed him on leave of absence for medical disability. The paperwork reflecting the leave stated his anticipated return date was April 26, 2006. The employee health coordinator, Lynne Kelleher, testified plaintiff was paid 60 percent of his salary in nontaxable temporary benefits for "many, many months." In addition to plaintiff receiving disability, Saddleback continued to pay its portion (approximately 90 percent) of the premium on plaintiff's medical, dental, and vision benefits for the first 12 weeks of leave. Records show short-term disability payments were made to plaintiff through December 2006, and over $4,800 in vocational rehabilitation payments were made in 2007. The payments would not have been made had Saddleback fired plaintiff; he remained an employee. In April 2007 Saddleback paid plaintiff for 42 hours of accrued paid time off. And in May 2008 Saddleback paid plaintiff a bonus as a service award for having been employed by Saddleback for 10 years. Kelleher said plaintiff was still on a leave of absence from Saddleback as of the time of the trial.
The executive director of Saddleback, Ronald Salzberg, said plaintiff's recent accidents were not deemed to have been plaintiff's fault. But Salzberg, who approved the leave of absence, had a question as to whether plaintiff could safely perform his job of transporting elderly patients. This concern included whether plaintiff could physically perform those acts required by the job. In an effort to determine whether plaintiff's numerous work restrictions conflicted, Salzberg had Kelleher prepare a summary of plaintiff's various work restrictions. He found in the summary what he perceived to be conflicting restrictions. Newer restrictions stating plaintiff could drive did not address older restrictions. A March 2006 restriction prohibited plaintiff from lifting greater than 50 pounds, but the job description indicated lifting and carrying were involved. Salzberg was also concerned about restrictions placed on plaintiff walking, standing, stooping, and kneeling.
Salzberg wrote to plaintiff on June 23, 2006, stating that Saddleback had received his complaint stating his desire to return to work as a driver. The letter explained that Saddleback had received a number of medical statements, some of which were difficult to decipher and were conflicting. The letter further stated that Saddleback was willing to engage in an interactive process to determine what accommodations, if any, were required. Salzberg and plaintiff met in July 2006. Plaintiff wore two ankle braces to the meeting. He said his wrist and ankle "were messed up" and "swollen," but he could drive the bus and check seatbelts. According to Salzberg's notes, plaintiff said he helps support patients from behind, but could not hold the patient up if the patient fell.
Salzberg sent plaintiff a letter the week after the meeting. The letter stated there were conflicting medical opinions regarding restrictions, and the medical opinions conflicted with plaintiff's own representation that he does not need accommodations. The letter suggested a third medical opinion based upon the unique physical demands of the job and stated Saddleback would pay for the doctor visit and for plaintiff's time. The letter requested plaintiff to call Salzberg and let him know if he was in agreement, in which case Salzberg would set up the appointment.
It was agreed a job analysis would be performed and then reviewed by Dr. Leupold, the agreed medical examiner, who would then give his opinion as to whether plaintiff was "physically capable of returning to his usual and customary job duties." It was also agreed plaintiff would be "deemed unable to return to work prior to the date of the opinion."
So Salzberg would have a "clear picture" of what the job required, an ergonomic job analysis was performed in September 2006. The report's findings were agreed to by plaintiff and his attorney. Among other things, the report concluded the job required occasional standing, walking (with a patient), stooping, squatting/crouching, kneeling, twisting, and infrequent carrying of boxed supplies weighing 26 to 50 pounds, although the heaviest item lifted by an employee alone was approximately 34 pounds.
Plaintiff did not show up for his scheduled appointment with Dr. Leupold after the job analysis had been concluded. It took several months to reschedule the appointment and plaintiff was finally examined in July 2007. Dr. Leupold limited his discussion to plaintiff's right ankle because he believed that was to be the scope of his examination per the agreed upon medical examination letter he received.
During his examination, plaintiff complained of constant pain in his right ankle (10 on a scale of one to 10) and an inability to lift over 40 to 50 pounds without pain. During testing, he claimed to be unable to flex his right foot or toes in one direction, although the doctor observed plaintiff was clearly able to do so. Plaintiff also claimed car accidents increased his pain in areas, including his ankles. Dr. Leupold noted, however, that records of Dr. Nottage's treatment of plaintiff did not support an aggravation to the right ankle. For purposes of the right ankle, Dr. Leupold said plaintiff was precluded from "heavy lifting, walking on uneven ground, prolonged weightbearing, repetitive squatting, repetitive climbing and running and jumping." The doctor concluded plaintiff could perform the activities set forth in the job analysis with his current work restrictions.
Salzberg did not receive Dr. Leupold's report. On May 6, 2009, after being advised that Dr. Leupold testified in a deposition that plaintiff did not have any restrictions that would prohibit him from working, Salzberg wrote to plaintiff and asked plaintiff to contact him about being able to return to work. On May 19, 2009, not having heard back from plaintiff and having been informed by Saddleback's benefit specialist that plaintiff had called her twice asking for a resignation form he could fill out and return to Saddleback, Salzberg again wrote to plaintiff about returning to work.
On March 19, 2008, plaintiff was again examined by Dr. Leupold based upon the parties' agreement. Plaintiff wore a brace on his left wrist and braces on both ankles. He told the doctor he left his cane in the car. The doctor noted plaintiff remained temporarily totally disabled.
Plaintiff stated he felt he was able to do the job of a driver and would like to return to work. However, he had a number of physical complaints. He said he had constant pain in his neck (rated as eight to nine on the scale of one to 10) and constant pain in his right hand and wrist (rated as seven to eight) that increases with gripping and grasping. He also said he has constant pain in his left hand and wrist (rated at nine) and almost constant pain in his mid-back (rated at eight) that increases with prolonged walking and standing. The pain in his back radiates to his low back where he also has constant pain (rated eight to nine) that also increases with prolonged standing, walking, sitting, and lifting. The pain also radiates down his legs and into his feet. Plaintiff claimed intermittent pain in his left rib cage (rated at seven), intermittent pain in knees (right — rated seven, left — rated six) that increases on prolonged standing, walking, and kneeling, and constant pain in his ankles (right — nine to 10, left —eight to nine) that increases with prolonged standing and walking. The doctor noted plaintiff walked at times with an "artificial gate." Dr. Leupold also observed plaintiff "is very well muscled and certainly not what you would expect from somebody who has such severe diffuse pain in so many body parts."
During the week prior to that examination, a sub rosa video was made of plaintiff washing a dark BMW, driving, and walking over a three-day period. At no time during the recorded events did plaintiff use a cane, wear a wrist brace, or show the slightest discomfort in any part of his body, even while carrying a bucket of water or while squatting for minutes as he cleaned the tires of the BMW. Neither did plaintiff walk with a limp, contrived or otherwise.
Dr. Leupold was not aware of the sub rosa video when he examined plaintiff. He subsequently watched the video and prepared a supplemental report in October 2008. He observed plaintiff squatting, use both hands interchangeably cleaning the windshield without apparent difficulty, bend easily, squat down fully and kneel easily without apparent difficulty and vigorously brush a wheel with his right hand while squatting. The video showed plaintiff "working quite energetically without apparent difficulty or evident discomfort." The doctor stated the video demonstrated plaintiff's ability "to perform activities greater than what he indicated."
In May 2008, plaintiff was hired by Wellington as a shuttle bus driver. The job involved driving elderly patients. Plaintiff took his physical for the job on May 19, 2008. He represented his general health as "overall excellent." He reported no history of spine or back problems and was evaluated as having "no work restrictions."
The trial court issued its statement of decision (Code of Civ. Proc., § 632) and found plaintiff failed to prove by a preponderance of the evidence each and every cause of action against the Saddleback and Butler. The court further found plaintiff's entire testimony lacked credibility and that he had "lied about and exaggerated his work restrictions and limitations and need for workplace accommodation."
In finding for Butler on the harassment claim, the court stated plaintiff failed to prove Butler's conduct was "so severe or pervasive as to alter the conditions of his employment and create a work environment that qualifies as hostile or abusive to him because of his alleged disability or perceived disability." (Italics omitted.) The court found plaintiff's testimony regarding Butler's conduct was not credible and was belied by plaintiff's other testimony that Butler thought plaintiff was a good employee.
The court also found plaintiff failed to prove the claim against Butler for intentional infliction of emotional distress because plaintiff's testimony about his alleged distress was not credible, there was no expert evidence of emotional distress and no evidence Butler's conduct was outrageous and extreme. As an independent ground for denying relief, the court held relief was barred by the exclusive provisions of the Workers' Compensation Act.
As to his claims against Saddleback, the court found that plaintiff was not disabled within the meaning of the FEHA in that no physical condition limited his ability to participate in any life activity. Plaintiff's representations about his physical state were not credible and the court stated the physician's findings were not binding because they were based "in part" on plaintiff's false representations. The court concluded plaintiff had no physical impairment of any consequence and lied about or exaggerated his injuries. The court further found that, contrary to plaintiff's testimony, he was not fired in March 2006. Rather, he had been placed on a paid leave of absence.
The court stated plaintiff's testimony about discrimination, harassment and requests for accommodation was not credible and that there was no evidence he ever complained about such matters. The court found the evidence established plaintiff was paid while on leave, that Saddleback worked with plaintiff's workers' compensation attorneys to obtain a job analysis and the medical opinion of a mutually agreeable physician to determine if plaintiff could return to work, and that plaintiff did not present any evidence to refute Saddleback's efforts.
Plaintiff's testimony regarding the harassment claim against Saddleback was likewise found to lack credibility. The court found that even if the complained of conduct occurred, it was neither severe nor pervasive. Additionally, the employees plaintiff claimed had animus toward him all testified to trying to assist plaintiff get his job back. Moreover, the court found plaintiff did not prove Saddleback failed to take reasonable steps to prevent discrimination.
The court also found plaintiff failed to present any credible evidence on any element of his intentional infliction of emotional distress claim. His own testimony was not credible and he presented no evidence of severe emotional distress. The court noted that no employee of Saddleback harbored any animus toward plaintiff.
The court concluded that the doctrine of unclean hands barred all of plaintiff's claims against Saddleback. In addition to plaintiff's acts of lying and exaggerating about injuries, Saddleback introduced evidence that plaintiff lied to his new employer about his injuries, work restrictions, and workers' compensation claims.
Plaintiff filed a motion for a new trial alleging among other things, that the finding that plaintiff's causes of action were frivolous was not supported by the evidence. Defendants' counsel filed a motion for attorney fees. The motion alleged attorney fees incurred in defending plaintiff's action amounted to $464,704 plus an anticipated additional $30,000 in attorney fees and costs in litigating the motion for attorney fees.
The court took the motions under submission and then denied each. The court struck from the statement of decision the characterization of plaintiff's action as "frivolous." "Finally, the Court reviewed its Notice of Tentative Decision and although the Court found plaintiff to be without credibility, the Statement of Decision incorporated the term `frivolous' to describe Plaintiff's case and [defendants] use it as a platform to support a claim for attorney fees. However, that was Defendants' choice of word and not the Court's so the Court hereby orders it stricken." The court did award defendants $29,631.03 in costs.
At the outset and before we address plaintiff's contentions, we affirm the judgment of the superior court in favor of defendant Butler and the judgment in favor of Saddleback on the intentional infliction of emotional distress cause of action. Butler was named as a defendant in the first cause of action alleging retaliation, intimidation, and harassment in violation of the FEHA. In the seventh cause of action, plaintiff alleged Butler and Saddleback intentionally inflicted emotional distress on him. At no point in plaintiff's opening brief did he raise any purported defect in the judgment as it related to Butler. The few references there were to Butler in the 72-page opening brief dealt with Butler holding a favorable opinion of plaintiff's performance as a bus driver and did not state Butler committed any actionable act. Neither did plaintiff raise any issue affecting the judgment as it relates to the cause of action alleging Saddleback intentionally inflicted emotional distress. Any argument that the judgments were improper has been waived because plaintiff did not raise the argument in his opening brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
In order to prevail in an action for intentional infliction of emotional distress, plaintiff must prove (1) defendants engaged in extreme and outrageous conduct with the intent of causing emotional distress or in reckless disregard of the likelihood of causing emotional distress, (2) that he suffered severe of extreme emotional distress, and (3) defendants' conduct was the proximate cause of that distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) The trial court found plaintiff's testimony about having suffered emotional distress was not credible, there was no other evidence of emotional distress, and no evidence Butler engaged in any outrageous conduct. These findings also support the judgment in favor of Butler and Saddleback on this cause of action.
Plaintiff makes much of the fact that the sub rosa video taken over a three-day period and showing him washing his car, squatting while cleaning the tires, and walking about was made two years after he was put on a leave of absence and therefore does not reflect his condition as of March 17, 2006. He also maintains the video had no impeachment value because he never concealed the fact that he washed his car.
The video was properly admitted and considered. While it is true plaintiff twice informed Dr. Leupold that he washes his car, on March 19, 2008, within a week of the recording of the sub rosa video, plaintiff was again examined by Dr. Leupold. During that visitation plaintiff made a number of statements about his physical condition that were irreconcilable with his actions on the video. He claimed constant pain in his neck (rated eight or nine on a scale of one to 10), constant pain in his right hand and wrist (rated seven to eight), constant pain in his left hand and wrist (rated nine), almost constant pain in his mid-upper back (rated eight), intermittent pain in his left rib cage a few times a week (rated seven), constant pain in his low back (rated eight or nine), intermittent pain in his right knee (rated seven) a few times a week and increasing on prolonged standing, walking and kneeling, constant pain in his right ankle and foot (rated nine to 10), and constant pain in his left ankle (rated eight or nine). During this same examination, he exhibited what the doctor concluded was a "contrived" and artificial gait. Further, plaintiff said he left his cane in his car.
He did not use a cane on any of the dates he was recorded washing his car or walking about. Neither did he exhibit even the slightest discomfort in any part of his body, even when repeatedly squatting for minutes to wash the tires of his car. At no time during any of the recorded activities did plaintiff wear a wrist brace, yet he wore one to the doctor's office.
Contrary to plaintiff's contention, the trial court was not required to accept Dr. Leupold's testimony that plaintiff was not malingering because plaintiff had objectively verifiable disabilities. The definition of malinger includes "to deliberately induce, protract, or exaggerate actual illness . . . as to avoid duty or work" (Webster's 3d New Internat. Dict. (1993) p. 1367, italics added), which is exactly what the court found plaintiff did. Whether the plaintiff was malingering was not a matter exclusively within the doctor's knowledge. The court viewed the sub rosa video, knew of plaintiff's incredible physical complaints made and contrived gait performed shortly after he was unknowingly recorded.
"`In general, in reviewing a judgment based upon a statement of decision following a bench trial, "any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]" [Citation.] In a substantial evidence challenge to a judgment, the appellate court will "consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]" [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]' [Citation.]" (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765.) The ultimate question is whether any reasonable trier of fact could have found for the prevailing party "based on the whole record" (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633) and not just the part or parts of the record the plaintiff deems favorable.
An appellate court will not draw inferences in favor of the judgment when the statement of decision does not resolve a controverted issue or is ambiguous and the omission or ambiguity was brought to the court's attention. (Code of Civ. Proc., § 634.) The statement of decision in this matter is not ambiguous and resolved each material controverted issue. We therefore reject plaintiff's urging to use a de novo standard of review.
To succeed in an action for wrongful and tortious discharge a plaintiff must prove he or she was discharged in violation of a policy that is: "(1) delineated in either constitutional or statutory provisions; (2) `public' in the sense that it `inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental." (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.) Although plaintiff testified he was "fired" in March 2006, the court found he had no credibility whatsoever and his employment had not been terminated. Saddleback placed plaintiff on a leave of absence in March 2006 and he was thereafter paid substantial sums in disability benefits. Further, Saddleback continued to pay toward his medical, dental, and vision benefits. In April 2007, Saddleback paid plaintiff for 42 hours for accrued paid time off. And in May 2008, Saddleback paid plaintiff a bonus as a reward for having been a Saddleback employee for 10 years. Kelleher testified plaintiff was still on a leave of absence as of the time of trial. Substantial evidence supports the court's conclusion that Saddleback did not terminate plaintiff's employment.
A person's right to hold employment without discrimination based on a physical disability is protected by the FEHA. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984.) "In the FEHA, the terms `discriminate' and `harass' appear in separate provisions and define distinct wrongs. [Citations.] As relevant here, subdivision (a) of section 12940 makes it `unlawful' (subject to certain exceptions) `[f]or an employer, because of the . . . physical disability . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.' (Italics [omitted].) Subdivision (j)(1) of the same statute makes it unlawful (again subject to certain exceptions) `[f]or an employer . . . or any other person, because of . . . physical disability . . . to harass an employee . . . .' (§ 12940, subd. (j)(1), italics [omitted].)" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705-706.) It is not, however, a violation of the FEHA to discharge an employee because the employee is unable to perform essential duties even with reasonable accommodations. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002 (Scotch).)
The court found for Saddleback on plaintiff's harassment claims (§ 12940, subd. (k)). Plaintiff's testimony regarding objectionable comments made to him by employees of Saddleback was disregarded because the court found he lacked credibility. We are bound by the trial judge's evaluation of credibility. (People v. Troyer (2011) 51 Cal.4th 599, 613.) There was no other evidence of harassment. Thus plaintiff failed to prove he had been harassed, a necessary element of that cause of action. (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 208.) Accordingly, substantial evidence supports the defense judgment in the harassment cause of action.
In plaintiff's fourth cause of action he alleged Saddleback failed to accommodate his disability and failed to engage in a good faith interactive process to determine reasonable accommodations. (§ 12940 subds. (m) [duty to make reasonable accommodations] and (n) [duty to engage in good faith interactive process to determine reasonable accommodations].) We first address whether Saddleback engaged in a good faith, interactive process.
"The `interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not required." (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) The process places burdens on the employee as well as the employer. (Scotch, supra, 173 Cal.App.4th at p. 1013.) Here, approximately three months after Saddleback placed plaintiff on leave of absence following his last two traffic accidents, Saddleback initiated the process when Salzberg wrote to plaintiff about participating in a good faith interactive process to determine effective reasonable accommodations.
The obligation to initiate the process is on the employee "unless the disability and resulting limitations are obvious. `Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.' [Citation.]" (Scotch, supra, 173 Cal.App.4th at p. 1013.) Plaintiff claimed no disability and no need for accommodation. It was not evident what plaintiff's limitations were. The initial delay was plaintiff's doing.
Salzberg informed plaintiff there were conflicting reports from doctors regarding work restrictions and that there was the question of whether plaintiff could perform the essential duties of his job without endangering himself or the patients he is responsible for transporting. Plaintiff responded within three weeks, but his response did not address the issues of accommodation or essential duties.
Plaintiff and Salzberg met a few days later to discuss the matter. Plaintiff said he could drive and check patients' seatbelts, but that his wrist and ankles "were messed up" and "swollen." A week later, Salzberg wrote to plaintiff reiterating there were conflicting medical opinions and that those opinions also conflicted with plaintiff's representation that he does not need accommodation. Salzberg suggested another medical opinion based upon the unique physical demands of the job and an examination of plaintiff. Saddleback offered to pay for the examination and plaintiff's time.
The parties subsequently agreed to the procedure and further, that plaintiff would "be deemed unable to return to work prior to the date of that [medical] opinion." An ergonomic job analysis was performed two months later. Plaintiff agreed to its findings. An appointment was set up for plaintiff to be examined by the agreed medical examiner, Dr. Leupold, but plaintiff failed to appear for the appointment. Plaintiff's failure to appear for the medical examination again delayed the process. Accordingly, based upon this record, we cannot say Saddleback did not make a good faith effort to participate in an interactive process to determine appropriate accommodations.
"The elements of a failure to accommodate are (1) the plaintiff has a disability under FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1192.)" (Scotch, supra, 173 Cal.App.4th at pp. 1009-1010.) A reasonable accommodation is "`a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held . . . .'" (Id. at p. 1010.) Saddleback accommodated plaintiff's alleged injuries for years prior to the two traffic accidents immediately preceding his being placed on a leave of absence.
Plaintiff failed to prove he was qualified to perform the essential functions of the position as driver for elderly patients. His job was to safely transport Saddleback's patients. (See § 12926, subd. (f)(l)(A) ["function may be essential because the reason for the position exists to perform that function"].) Immediately prior to being placed on a leave of absence, he was involved in two traffic accidents. He also had other accidents with a bus in 1999, 2000, 2003, and 2005. Although he had not been found to be at fault in any of the numerous incidents, there were patients in the bus each time he had a traffic accident or incident and Saddleback was entitled to be concerned about whether plaintiff could perform the essential functions of the job. The evidence supports the trial court's finding that plaintiff did not prove the elements of this cause of action.
The cause of action for disability discrimination required plaintiff to prove he (1) suffered from a disability, or that Saddleback perceived him as suffering from a disability (2) that he could perform the essential duties of his job with or without reasonable accommodations, and (3) Saddleback subjected him to an adverse employment action — such as failing to reinstate him — because of his physical disability or perceived disability. (Wills v. Superior Court (2011) 194 Cal.App.4th 312, 328-329.) As plaintiff failed to prove he could perform the essential duties of his job of safely transporting elderly patients, the evidence supports the defense judgment on this cause of action as well.
In conclusion, we find the evidence supports the defense judgment on each of plaintiff's FEHA claims and his intentional infliction of mental distress and tortuous discharge claims. Because the evidence supports those judgments, it also supports the defense judgment on the cause of action alleging Saddleback engaged in unfair business practices by failing to make reasonable accommodations; failing to engage in a timely, good faith interactive process; harassing, retaliating, or discriminating against plaintiff.
Lastly, the trial court found all of plaintiff's causes of action against Saddleback to be barred by the doctrine of unclean hands. As demonstrated above, the evidence supports the trial court's finding that plaintiff "lied about the extent of his injuries, work restrictions and limitations, and need for accommodations for many years and that he has been `working' the system in this regard for quite a while." Plaintiff argues the doctrine of unclean hands is not a "total bar" to discrimination lawsuits. However, because we find the evidence supports the judgment below, we need not decide this issue. Neither do we decide whether one who fraudulently claims injuries is damaged when the employer relies upon the fraudulent claim and places the employee on a leave of absence (with disability payments) while the employer determines whether the employee can physically fulfill the essential duties of the job.
The trial court denied defendants' request for almost $500,000 in attorney fees. Defendants were awarded costs in the amount of $29,631.03. Defendants argue the trial court abused its discretion in not awarding them attorney fees because plaintiff's lawsuit was "unreasonable, frivolous, meritless, or vexatious" as a matter of law. (Italics added.)
The trial court issued its notice of tentative decision after the trial. In it the court found plaintiff "failed to prove each and every cause of action alleged in his complaint by a preponderance of the evidence" and that defendants were the prevailing parties. After plaintiff requested a statement of decision, the court signed the defendants' proposed statement of decision. Defendants' attorneys inserted into the statement of decision, at least 10 times, the word frivolous in describing plaintiff's various causes of action. In ruling on plaintiff's motion for new trial and defendants' motion for attorney fees, the court struck the word frivolous from the statement of decision, finding that word was not the court's and had been inserted "as a platform to support a claim for attorney fees."
Section 12965, subdivision (b) of the FEHA authorizes a trial court to award attorney fees and costs. "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees . . . ." (§ 12965, subd. (b).) A trial court's decision awarding or denying attorney fees to a prevailing defendant in a FEHA action is reviewed for an abuse of discretion. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.)
An award of attorney fees to a prevailing defendant in a FEHA lawsuit is based upon different considerations than an award of attorney fees to a prevailing plaintiff. An award to a prevailing plaintiff is made to the party designated by the legislature as the instrument to vindicate a strong public policy against discrimination and the award is against a party that has violated the law. (Rosenman v. Christensen, Miller, Fink, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 865 (Rosenman), citing Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412.)
The Christiansburg court held a federal district court "may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that plaintiff's action was frivolous, unreasonable, or without foundation . . . ." (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at p. 421.) Because the trial court has discretion to award fees in such a situation does not, of course, mean that it must award fees. There are situations where the refusal to make an award when an action is frivolous, unreasonable or without foundation does not result in an abuse of discretion. This is such a case.
"Even where a plaintiff's witnesses ultimately are not credible, this does not automatically establish the plaintiff's claims are frivolous, unreasonable, or without foundation." (Rosenman, supra, 91 Cal.App.4th at p. 872, fn. omitted.) Where the only evidence in support of a claim is the plaintiff's testimony and that testimony is not credible and intentionally false, an award of attorney fees to a prevailing defendant has been upheld. (Carrion v. Yeshiva University (2d Cir. 1976) 535 F.2d 722.)
In Carrion, the plaintiff claimed she failed to receive promotions and had been fired because of her race. At the conclusion of her case-in-chief, the court dismissed her complaint. The court later awarded attorney fees and costs to the defendant (Carrion v. Yeshiva University, supra, 535 F.2d at p. 723) after finding Carrion's testimony "`constituted an unmitigated tissue of lies; that no one had discriminated against her; and that the reason she was fired was that she had engaged in deliberately disruptive conduct having nothing to do with the exercise of any constitutional or statutory right (but was motivated solely by spleen) and because she had defied reasonable attempts to control her activities. [Citation.]" (Id. at p. 728.) Moreover, she had previously brought an action based upon the same facts in a state action and lost in a unanimous opinion by the appellate court, demonstrating that she and her counsel should have been aware of the possibility that another failure would expose her to an attorney fee award. (Ibid.)
Recognizing an award should be made to a prevailing defendant only if the action is found to have been "unreasonable, frivolous, meritless or vexatious" (Carrion v. Yeshiva University, supra, 535 F.3d at p. 727), the court in Carrion awarded defendant $5,000 in attorney fees, noting Carrion was employed elsewhere, earning five times the amount awarded ($25,000 a year) and has no dependants. (Id. at pp. 728-729.) While there are some comparisons between Carrion and the present matter, so too are there dissimilarities. The court did not find plaintiff's testimony credible here, but neither did it find plaintiff perjured himself in court. In addition, plaintiff did not previously bring an unsuccessful action on the same facts.
Furthermore, the award in Carrion did not subject her to financial ruin. Her yearly salary was five times the amount of attorney fees awarded and she had no dependants. Here, plaintiff's salary in his current employment is $14.42 an hour and he works approximately 40 hours a week. Working a full 40 hours a week for all 52 weeks of the year, plaintiff would gross less than $30,000 a year. The court awarded defendant over $29,000 in costs. A further award of attorney fees, much less an award of almost $500,000 as requested by defendants, would certainly financially ruin plaintiff. If he paid every penny he earned toward the sought after attorney fees and the costs awarded by the court, and did not buy or pay anything toward food, drink, clothing, shelter, education for his children, gas to drive to work, or bus fare, or pay the government its due, it would take plaintiff more than 17 years to pay off the debt. But it is not just plaintiff the award would effect. It would also have a devastating effect upon his three dependents, his wife and two children. An award of attorney fees should not result in the financial ruin of an unsuccessful plaintiff. (Rosenman, supra, 91 Cal.App.4th at p. 868.) Considering this plaintiff's finances, the trial court did not abuse its discretion in refusing to award attorney fees to defendants after having awarded them more than $29,000 in costs. We therefore need not address plaintiff's remaining reasons why an award of attorney fees was not warranted.
The judgment and the order denying attorney fees are affirmed. Each party shall bear their own costs on appeal.
RYLAARSDAM, ACTING P. J. and O'LEARY, J., concurs.
