In Bustos v. Global P.E.T., Inc., (E065869, Cal. Ct. App. January 16, 2018), Plaintiff William Bustos and a number of his co-workers were terminated by Global in an economic layoff.  Bustos sued Global alleging his disabilities were a substantial motivating reason for his termination.

At trial, the jury awarded Bustos nothing, although the jury answered “Yes” to the special verdict form question: “Was [Bustos’ disabilities] a substantial motivating reasons for [Global’s] decision to discharge [Bustos]?”  The jury also answered “No” to the question of whether Global’s “conduct” was a “substantial factor in causing harm to [Bustos]”.

Based on the jury’s finding that Bustos’ disabilities were a substantial motivating reason for his termination, Bustos’ attorneys requested an award of about $454,000 in fees under the Fair Employment Housing Act, Government Code Section 12965. They cited Harris v. City of Santa Monica (2013) 56 Cal.4^th 203, 235, for the proposition that “a plaintiff subject to an adverse employment decision in which discrimination was a substantial motivating factor may be eligible for reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or deterring that discrimination,” even if that plaintiff did not sustain a compensable injury.

The trial court denied that request, finding that Bustos was not a “prevailing party” under Section 12965 because he failed to recover any economic or equitable relief. (Bustos, supra, *4.)  After reviewing the record and Harris, the Court of Appeal affirmed:  “It is not beyond reason to conclude that a plaintiff who obtains no relief at trial – either monetary or equitable – has not ‘realized [his] litigation objectives,’ regardless of whether one or more preliminary questions on a special verdict form were answered in his favor.”  (Id. at *7, citingCastro v. Superior Court (2004) 116 Cal.App.4^th 1010, 1023.)

The Bustos decision should discourage claims for attorney’s fees based only on favorable special verdict form questions where a plaintiff has no practical prevailing party status.  This decision, however, may also encourage the pursuit of more equitable claims – injunctive and declaratory relief – in which a plaintiff has another means of realizing prevailing party status.