Filed 11/26/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOHN RUS SO INDUSTRIAL SHEETMETAL, INC., Plaintiff, Cross

- d efendant and Respondent,

v. CITY OF LOS ANGELES DEPARTMENT OF AIRPORTS , Defendant, Cross

- complainant and Appellant. A151729
(San Mateo County Super. Ct. No. CIV518872)

John Russo Industrial Sheetmetal, Inc. ( doing business as JRI, Inc.; hereafter JRI)
contracted with the City of Los Angeles Department of Airports ( also known as Los Angeles World Airports ; hereafter LAWA), to provide LAWA specialized airport firefighting trucks

. Each sued the other for breach of the contract. In a consolidated action, LAWA further alleged JRI violated the California False Claims Act ( CFCA ),
Gove rnment Code section 12650 et seq

. , 1 with respect to the sale

. LAWA was awarded $1 in contract damages, and its CFCA claim was rejected by the jury

— as were JRI’s claims against LAWA. The court awarded LAWA costs as prevailing party on the contract claims, but awarded JRI attorney fees on the CFCA claim, finding the claim
frivolous and harassing . LAWA challenges the fee award

. We conclude JRI “ prevail [ed] in the action ” under the relevant CFCA fee provis ion (§ 126 5 2, subd. (g)(9)(B); hereafter section 12652(g)(9)(B) ) regardless of its

1 U ndesignated statutory references are to the Government Code.

1failure to prevail in the action as a whole . We reject other challenges LAWA presents to the f ee award and affirm

. I. B ACKGROUND 2 “JRI and LAWA entered into a contract for JRI to build and provide four ARFF [ ( Aircraft Rescue and Fire Fighting ) ] vehicles for airports owned and operated by LAWA. JRI provided and LAWA accepted and paid in full for Trucks #3 and #4, but [LAWA] terminated the contract and refused to pay for Trucks #1 and #2 before they

w ere physically delivered to LAW A. At that tim e Trucks # 1 and #2 were substantially comple ted, and JRI sought to have LAW A make the contractual payments of approximately $2 million. [¶] .

. . LAWA filed a lawsuit against JRI for breach of

contract

. . . demanding the return of more than $2 million it had paid for the two ARFFs.

. . . JRI file[d] this lawsuit for breach of contract against LAWA. The cases were then subsequently consolidated [, .

. .] a nd the LAWA lawsuit was treated as a cross

- complaint. [¶]

. . . LAWA amended its cross

- complaint to add causes of action against JRI, including
a claim for violation of the [ CFCA , ] .

. . assert [ing] that when JRI submitted it[s] invoices for progress payments and final payments on the ARFFs, JRI knew that it was not in compliance with the contract and sough t to defraud the government entity LAWA into making payments. [¶]

. . . [JRI then ] tacked on a cause of action against LAWA for
violation of civil ri ghts

. . . . ”
“LAWA’s CFCA claim was based on two [legal] theories: (1) that JRI fraudulently induced LAW A to enter into the contract, making all subsequent claims for payments violative of the CFCA , and (2) JRI impliedly and falsely certified compliance with applicable contract requirements w hen it requested progress and fin al payments.”
The CFCA claim surv ived demurrer and a motion for summary adjudication, but at the summary adjudication stage the court observed that the claim was “ ‘weak.’ ” T he court granted in part JRI’s motion in limine to exclude evidence LAWA proffered in support of

2 For the relevant factual and procedural background, we quote from the trial court’s order awarding attorney fees.

2the claim. Duri ng trial, JRI moved for nonsuit on the claim. LAWA voluntarily
dismissed the fraudulent inducement aspect of the claim (and a related fraudulen t inducement of contract claim) and the CFCA claim went to the jury solely on the implied
certification theory . The jury unanimously found against LAWA on that theory .

. . .”
LAWA prevailed only on its cross

- claims for breach of contract and enforcement of a performance bond
, and the jury awarded LAWA only $1 on those claims, thus “reflect[ing] the conclusion t hat JRI did not have to give back to LAWA any of the progress or final payments that LAWA made.” JRI was unsuccessful on all of its claims against LAWA. After entry of judgment, JRI sought attorney fees under the relevant
defendant ’s attorney fees provis ion of CFCA , section 12652(g)(9)(B) , on the ground
LAWA’s CFCA claim was frivolous and harassing. The court granted the motion but
reduced the amount of requested fee s

. The court ruled the “ CFCA claim has been a ‘junk’ claim all along.

. . . The
evidence was overwhelming and uncontradicted that LAWA affirmatively knew that Truck #3 was not built exactly as the contract terms [required, yet] LAW A desperately
insisted that it needed an ARFF to avoid a federal shut

- down, and .

. . was willing to take
the non

- conforming model

— which LAW A inspected before delivery and prior to full payment. LAW A then used T ruck #3 at the airports for years

— without b ringing any claim against JRI. [¶] As for Truck #4, it was the subject of pre

- delivery and delivery inspections by LAW A prior to progress payments and final payment, and was used at the
Ontario Airport until LAW A decided to move it to LAX [(Los Angeles International Airport)]

. At LAX, the firefighters didn’ t like this new model of ARFF and wanted to have configura tion changes before any acceptance of Trucks #1 and #2. ”
The court also found “LAWA’s fraudulent inducement theory failed because there was no evidence at all of any reliance by LAWA and no evidence at all of any scienter by JRI. Similarly, as for the

. . . implied certification theory, the evidence was undisputed that JRI believed it was entitled to payments when it presented the claims, and the evidence was overwhelming that LAWA did not rely upon JRI in paying the claims
because LAWA had the contractua l right to and did verify compliance with the contract

3before making progress and final payments. In order to prove the implied certification theory, LAWA would basically h ave to prove fraud against JRI

— the reality is that this
was a breach of c ontract si tuation, not a fraud. [¶] .

. . [¶] LAWA’s argument .

. . that it had evidence in support of the claim but was barred from presenting such due to rulings
on motions in limine is unfounded. .

. . The focus of LAWA’s argument is that JRI did not give full di sclosure on its ‘Questionnaire’ on the ARFF bid to LAWA. The evidence at trial was that the Questionnaire (a) was not relied upon as LAWA conducted its own investigation of JRI, and (b) was not material because the reality of the situation was that
JRI wa s the one and only supplier offering an ARFF that met the physical specifications in LAWA’s bid solicitation. [¶] It had to have been evident to LAWA at some time during this lawsuit

— if it wasn’t from the start

— that the CFCA claim was not meritorious
under the facts. Persisting in prosecuti[ng] a claim that you know you don’t have evidence to support constitutes harassment and a frivol ous claim.” Regarding the “harassment” finding, the court further found that LAWA had

“ ‘upped the ante’ ” by adding the CFCA claim to the lawsuit, causing the case to “mushroom[] from a simple breach of contract case, albeit for $2 million, into an
unsettleable war

— with the government entity seeking treble damages, while JRI (a family owned business) tacked on a [civil rights claim] seeking punitive damages!” (Italics added.)
II. D ISCUSSION The CFCA “is intended to ‘ “supplement governmental efforts to identify and prosecute fraudulent claims made against state and local governmental entities.” ’ ” ( State of Californi a ex rel. Hindin v. Hewlett

- Packard Co. (2007) 153 Cal.App.4th 307, 312, quoting American Contract Services v. Allied Mold & Die, Inc . (2001)
94 Cal.App.4th 854, 858.) “In general, the [CFCA] permits a governmental agency, or a qui tam plaintiff bringing an action on behalf of the governmental agency, to recover civil penalties and damages from any person who, for example, knowingly presents to the state or one of its political subdivisions a false claim for payment or approval.” ( Hewlett

Packard , at pp. 312

– 313.)

4The CFCA provides: “[T] he court may award the de fendant its reasonable attorney’ s fees and expenses against the state or political subdivision that proceeded with
the action [ 3 ] if the defendant prevails in the action and the court finds that th e claim was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment

. ” (§ 12652(g)(9)(B) , italics added .) 4 In other words, the CFCA incentivizes plaintiffs to pursue potentially meritorious claims f or fraud on government enti ties b ut penalizes clearly frivolous claim s.

“ ‘ On review of an award of attorney fees after trial, the normal standard of review
is abuse of discretion. However, de novo review of such a trial court order is warranted
where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of
law. ’ ” ( Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
A. JRI ’s Prevailing Party Status
LAWA fir st argues JRI was not entitled to fees because JRI d id not “prevail[] in
the action ” as required by section 12652(g)(9)(B). LAWA relies on the trial court ’s
determination that it was the “ prevailing party ” for purposes of general costs, based on its

recov ery of at least nominal damages on its breach of contract and performance bond
claim s . (See Code Civ. Proc., § 1032, subd. (a)(4) [ “ ‘ [p] revailing party’ includes the party with a net monetary recovery ”].) In awarding fees to JRI, t he trial court found t hat
the requirement in section 12652 (g)(9)(B) that a defendant “prevails i n the action” refers only to success on the CFCA claims a nd not on the action as a whole

. We agree with the trial court’s interpretation

.

3 The phrase “proceeded with the action” appears to refer to other provisions in section 12652 that allo w government entities to take over conduct of C FCA actions filed by qui tam plaintiffs. (See § 12652, subd. (c)(6), (7)(D), (8)(D).) Although LAWA initiated the C FCA cross

- complaint itself rather than assuming control of an action filed by a qui tam plaintiff, LAWA does not contend that section 12652(g)(9)(B) is inapplicable to this case

. 4 An almost identical provision applies to actions conducted by a qui tam plaintiff. (§ 12652 , subd. (g)(9)(A).)

5“The definition of ‘prevailing party’ in [Code of Civil Procedure] section 1032 is particular to that statute and does not necessarily apply to attorney fee statutes or other statutes that use the prevailing party concept.” ( DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147.) LAWA argues our colleagues in
Division Four construed “prevails in the action” in section 12652(g)(9) 5 “according to” Code of Civil Procedure section 1032, subdivision (a)(4) in State of California ex rel. Standard Elevator Co. v. West Bay B uilders, Inc. (2011) 197 Cal.App.4th 963 , 979

– 980. That case, however, involved only a CFCA cause of action. ( Id . at pp. 970

– 971.) This case raises the issue of what constitutes the “action” in section 12652(g)(9) when CFCA
claims are combined with othe r claims in a single lawsuit. To answer this question, we first examine the language of the CFCA.
W e review question s of statutory interpretation de novo. ( Connerly v. State
Personnel Bd. , supra, 37 Cal.4th at p. 1175.) “[O] ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to th e language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory pur pose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascert aining the legislative intent.” ( Dyna

- Med, Inc. v. Fair Employment & Housing Com

. (1987) 43 Cal.3d 1379,
1386

– 1387.) In reading and interpreting statutory provisions, we are mindful that the

5 The court construed Government Code former section 12652, subdi vision (g)(9) ( Stats. 1999, ch. 83, § 70 ) . ( State of California ex rel. Standard Elevator Co. v. West Bay Builders, Inc., supra, 197 Cal.App.4th at p. 972 & fn. 6.)

6words are to be given their plain and commonsense meaning. ( Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) In our view, when read in context
, the term “action” as used in
section 12652(g)(9)(B) is logically and reasonably understood as referring specifically to the CFCA cause or causes of action brought in a civil lawsuit without re gard to other
causes of action that may be bro ught in the same lawsuit

. The statute recognizes that

g overnment entities may punish or seek relief for false claims through a criminal prosecution
, administrative proceeding
, or “civil action

. ” (S ee § 12651, subd. (b)(3)

. )
The CFCA expressly provides t hat its remedies are cumulative to other lega l remedies (§ 12655, subd. (a)) and does not prevent CFCA causes of action from being joined with
other statutory, tort, or contract causes of action in a single lawsuit

. Section 12652 governs the conduct of CFCA actions . Many of its provisions

g overn the respective roles of the government and a private plaintiff in a qui tam lawsuit

. (See, e.g., § 12652, subds. (c) & (f) [ government authority to assume conduct of , or intervene as a party in, qui tam action ] , ( e ) [government authority to dismiss or settle
action over qui tam plaintiff’s objections ]. ) In these provisions, the statute refers to “the action” or an “action” brought under the CFCA without expressly limiting the term to CFCA causes of action. How ever, a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. There is no apparent reason why the Legislature would have given the government power to take over, dismiss or settle non

- CFCA causes of action joined with CFCA causes of action in a qui tam lawsuit. 6 Similarly, section 12652, subdivisions (g) (1)(A)

– (B), (g) (2), (g) (3) ,

6 At oral argument, LAWA argued the section 12652 subdivisions that address intervention logically refer to an “action” without limiting the term to CFCA claims because parties intervene in actions not claims. LAWA also argued the phrase “[t]he court shall dismiss an action or claim under this section” in section 12652, subdivision (d)(3)(A) suggests the Legislature understood CFCA claims might be joined with non

- CFCA claims in a single lawsuit and thus impliedly directed dismissal of an “action” if only CFCA claims were involved and “claim” if non

- CFCA claims were also involved. However, man y other subdivisions of section 12652 that do not involve intervention refer to “action” alone, with no “claim” alternative, in contexts where it

7and (j) govern the allocation of “proceeds of the action or settlement of the claim” to government entitie s and qui tam plaintiffs

. It would make no sense to allocate recovery of “proceeds of the action” that mig ht flow from non

- CFCA causes of action merely because a plaintiff elected to bring them in the same proceeding. 7 S ection 12652’s
references t o an “action” are logically understood as referring only to the CFCA causes of
action in a lawsuit. We believe our reading of the statute is consistent with its legislative purpose. (See § 12655, subd. (c) [CFCA “shall be liberally construed and applied to promote the public interest”].) The purpose of the CFCA’s defendant attorney fee provision, logically, is to “ ‘deter the bringing of lawsuits without foundation

. ’ ” ( Christiansburg
Garment Co. v. EEOC (1978) 434 U.S. 412, 420 ( Christiansburg ) .) The fortuity of whether frivolous, vexatious or harassing CFCA claims have bee n joined with non

- CFCA
claims

— whether meritorious or nonmeritorious

— i n a single civil action has no logical relevance to this purpose and therefore should have no effect on a defenda nt’s statutory entitlement to fees. As the trial court wrote, “the most logical and reasonable interpretation is that fees may be awarded to the party who prevailed on the CFCA claim itself[,] as it does not make sense .

. . that statutory fees would or w ould not be awarded based upon the outcome of other non

- [ CFCA ] claims.”

would make no sense for “action” to r efer to an entire lawsuit that included both C FCA and non

- CFCA claims. ( See § 12652, subds. (b)(3)(A) [“shall assume primary responsibil ity for conducting the action”], (c)(1) [“[o] nce filed, the action may be dismissed”], (c)(6)(A) [“the action shall be cond ucted by the Attorney General”], (c)(7)(D)(i) [“the action shall be c onducted by the prosecuting authority”], (c)(8)(D)(i) [“the action shall be cond ucted by the Attorney General”], (c)(8)(D)(ii) [“the action shall be conducted by the prosecuting authority”], (e)(1) [“shall have the primary responsibili ty for prosecuting th e action”], (e)(2)(A) [“ state or political subdivision may seek to dismiss the action ”] , (e)(2)(B) [“ state or political subdivision may settle the action”]; see also § 12652, subd

. (i) [“[u] pon a showing .

. . that unrestricted participation during the cou rse of the litigation by the person initiating the action would interfere with .

. . the case, .

. . the court may

. . . impose limitations on the person ’s participation” ( italics added ) ]. )

7 For example, in this case, LAWA’s f irst amended cross

- c omp laint included causes of action for breach of warranty, common law fraud, and restitution under Bus iness and Prof essions Code section 17200.

8LAWA notes that section 12652(g)(9)(B) refers to both “the action” and “the claim” and argues the terms must be construed to have different meanings. (See In re
Austin P. (2004) 118 Cal.App.4th 1124, 1130 [“[w] hen different terms are used in parts of the same statutory scheme, they are presumed to have different meanings” ].) It proposes that “action” refer s to the lawsuit as a whole and “claim” refers to a CFCA

cause of action. We d isagree

. “Claim” is used in two different senses in the CFCA . First, it refers to a claim (i.e., request or demand) for money, property or services from the government that is
unlawful under the CFCA . (See , e.g., §§ 12650, subd. (b)(1), (2) [defining “c laim” in this sense] , 12651 [prescribing penalties for a “false or fraudulent claim”] .) In
section 12652 , “claim” is used in this sense in the phrases “false claim ( s ) ” or “falsely claimed.” (§ 1 2652, subd s

. (c), (g) , (j) .) Second, “claim” is used to ref er to a cause of action for a violation of the CFCA . (See § 12652, subd s

. (c)(1) [“claim for any violation
of Section 12651”; “claim brought under this section”] , (d)(3)(A) [“an action or claim under this section”; “the action or claim”] , (d)(3)(C)(i) [“information on which allegations or transactions in a claim are based”] , (g)(1)(A)

– (B) [“settlement of the claim”], (g) (2) [same], (g) (9) , (j) [“settlement of the claim”]; see also §§ 12654, subd. (e) [ statutory litigation privilege inapplicable to “any claim subject to t his article”] , 12654.5 [“ claim of the state or political subdivision”]

. ) As noted, section 12652 , subdivision (g)(9) uses “claim” in the latter sense. In section 12652(g)( 9 )(B) , the distinction between
“action” as we have construed tha t term and this second meaning of “claim” makes sense : a defendant who prevails on a CFCA cause of action may recover only those fees
incurred exclusively to defend against frivolous CFCA claims and not for fees incurred to defend against non frivolous CFC A claims . (See Fox v. Vice (2011) 563 U.S. 826, 829 ( Fox ) [in civil rights actions, defendants may recover only those fees they would not have
incurred but for the frivolous claims] .) In other words, the fee claimant must have prevailed in the CFCA action (i.e., on the CFCA claims) to be eligible for fees, but fees

may be recover ed only for those CFCA claims that were frivolous.

9Our reading of section 12652(g)(9)(B) is supported by comparison to the analogous federal False Claims Act (FFCA; 31 U.S.C. § 3729 et seq.)

. ( State of California v. Altus Finance (2005) 36 Cal.4th 1284, 1299 [“CFCA ‘ is patterned on similar federal legislation’ and it is appropriate to look to precedent constr uing the equivalent federal act”] .) The FFCA section entitled “Civil actions for false claims ” (31 U.S.C. § 3730), uses “action” and “claim” in the same manner as section 12652 , 8 including in an almost

- identical ly

- worded defendant’s attorney fee provision applicable to qui tam actions. (Compare § 12652 , subd. (g)(9) with 31 U.S.C. § 3730 (d)(4) .) 9 As with the analogous CFCA provisions in section 12652 , it would make no sense for the
federal government to be able to take over, dismiss or settle non

- FFCA causes of action joined with FFCA cause s of action in a single lawsuit or to be required to share proceeds
of non

- FFCA causes of action with a qui tam plaintiff.
We have not found federal cases interpreting the relevant terms of the parallel
FFCA defendant’s attorney fee provision , and the parties cite none . However, we may

8 Compare, for example, section 12652, subdivisions (a) through ( c ) (authorizing government or qui tam plaintiff to file false claims action) with title 31 of the United States Code, section 3730(a) , (b) (“civil action under this section” ; “civil action for a violation of section 3729”; “the action”). Other provisions of the CFCA and FFCA similarly use “action” and “claim” as described ante

. ( Compare § 12650, subd

. (b)(1), (2) [ defining “claim” in sense of a false claim] wit h 31 U.S.C. § 3729(b)(2) [same]; § 12651 [defining liability and using “claim” in sense of a false claim] with 31 U.S.C. § 3729(a) [same] ; § 12654, subd s

. (a)

– ( b ) [ “civil action under Section 126 52” inferably referring to CFCA caus e of action] with 31 U.S.C. § 3731(b) [ “civil action under [31 U.S.C. §] 3730” inferably FFCA cause of action] ; and § 12654.5 [ “claim” inferably CFCA cause of actio n] with 31 U.S.C. § 3731(c) [ “claim” inferably FFCA cause of action ]. )

9 Title 31 of the United States Code section 3730(d)(4) provides: “ If the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the de fendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. ” Th e federal defendant’s attorney fee provision applicable to actions brought by the government incorporates the provisions of the Equal Access to Justice Act ( 28 U.S.C. § 2412 ) . (See 31 U.S.C. § 3730 (g); Casta ñ eda

- Castillo v. Holder (2013) 723 F.3d 48, 56

– 57 .)

10look to federa l cases on defendant’s attorney fee award s under federal civil rights statutes for guidance, as the FFCA defendant’s attorney fee provision “ appl[ies] the familiar standards applied under [section 1988 of title 42 of the United States Code ] .” ( United States ex rel. Onnen v. Sioux Falls Indep

. Sch

. Dist. No. 49

- 5 (8th Cir. 2012) 688 F.3d 410, 415.) F ee awards are authorized for “the prevailing party” in “any action” to enforce specified federal civil rights laws ( 42 U.S.C. § 1988(b)), and the Supreme Court
has held a defendant’s fee award is authorized if “a court finds that [a] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” ( Christiansbur g , supra, 434 U.S. at p. 422 .) T he Supreme C ourt also has held a defendant could recover fees incurred in defending against a frivolous civil rights claim even when other claims in the lawsuit we re remanded to state court for
resolution . ( Fox , supra, 563 U.S. at pp. 839

– 841 [“ defendant may recover the reasonable attorney’s fees he expended solely becau se of the frivolous [federal] allegations”] ; see id.

at pp. 830

– 831 ; see also Kohler v. Bed Bath & Beyond of California, LLC (9th Cir. 2015) 780 F.3d 1260, 1262, 1266

– 1267 [implicitly accepting that defendant prevailed on
federal d isability claims for purposes fee

- shifting under 42 U.S.C. § 12205, even though
other claims remanded to state court ; fee award reversed because 8 of 10 claims not frivolous ]; Jankey v. Lee (2012) 55 Cal.4th 1038, 1047

– 1048 [award of fees to defendant
under 42 U.S.C. § 12205 governed by Christian s burg ] .) That is, the Fox court implicitly held the defendant was entitled to fees after prevailing on the civil rights claim even though it was not yet known who would prevail on the action as a whole.
Fox ’s rationale also provides guidance on the issue before us. In Fox , the Supreme Court held that section 1988 of title 42 of the United States C ode “ serves to relieve a defendant of expenses attributable to frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may shift to him the reasonable costs that those claims imposed on his adversary. [Citation

. ]

. . . [T] he presen ce of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees tha t his frivolous claims imposed. [¶]

. . . Fee

- shifting to recompense a defendant (as to recompense a plaintiff) is not all

- or

- nothing: A defendant need n ot show that every claim

11in a complaint is frivolous to qualify for fees.” ( Fox, supra, 563 U.S. at pp. 834

– 835.) As Justice Kagan aptly observed in Fox , “[I]n the real world, litigation is .

. . complex, involving multiple claims for relief that implicate a mix of legal theories and have
different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.” ( Id. at pp. 833

– 834.) Like the trial court, we find that Fox supports our interpretati on of the CFCA attorney fee provision. Thus, w e conclude a court may award a defendan t fees under
section 12652(g)(9)(B) when the defendant prevails on CFCA claims found to be
frivolous , even if the plaintiff “ prevails ” in the action as a whole under Code of Civil
Procedure section 1032 , subdivision (a)(4)

. B. Frivolous, Vexatious or Haras sing CFCA Claim LAWA also argues the court erred in finding its CFCA claim w as frivolous and harassing. We reject LAWA’s argument that the mere fact its CFCA claim survived

pre verdict motions demonstrates the claim was not frivolous, vexatious or harassing, and we conclude LAWA has otherwise forfeited any challenge to the court’s evidentiary
assessment of the claim ’ s merits

. Section 12652(g)(9)(B) authorizes a fee award to an CFCA defendant only if “ the
court finds tha t the claim was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. ” As noted ante , we may look to cases applying section 1988
of title 42 of the United States Code for guidance in interpreting this provision . In
Christ iansburg , the Supreme Court explained that “ ‘meritless’ [ ( i.e., ‘ frivolous ’ ) ] is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case .

. . . [¶]

. . . [I]t is important that a [t rial] 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 discourag e all but the most airtight claims, for seldom can a prospective plaintif f be sure of ultimate success .” ( Christiansburg, supra, 434 U.S. at pp. 421

– 422.)

12To argue its CFCA claim w as not frivolous, vexatious or harassing, LAWA relies almost entirely on t he fact the claim survived demurrer and a motion for summary adjudication before trial , and partially survived motion s in limine and nonsuit at trial,
before unanimous reject ion by the jury. The mer e fact a claim survive s preverdict
motions , however, is not dispositive. A case involving section 1988 of title 42 of the
United States Code case is illustrative. I n Hutchinson v. Staton (4th Cir. 1993) 994 F.2d 1076, the plaintiffs alleged a conspiracy to fix an election. “The court dismissed one [defen dant]

. As to the remaining defendants, the court ruled that the limitations period had expired for their alleged individu al acts, and limited plaintiffs’ complaint to the claim of conspiracy. The court remarked that even this portion of plaintiffs’ compl aint barely
survived dismissal. [¶] Following extensive discovery, defendants moved for summary judgment. The court granted summary judgment to three more of the individual defendants, and ruled that [one aspect of the conspiracy claim] was time

- barred. The case then went to trial, which last ed fifteen days. During trial, plaintiffs voluntarily
dismissed two defendants

. . . . At the close of plaint iffs’ evidence, the court directed verdicts for all of the remaining defendants, finding that the only evi dence of election

rigging was ‘purely speculative’ and ‘mere suspicion.’ ” ( Id. at pp. 1078

– 1079.) The court of appeal held the defendants were entitled to a fee award. ( Id. at p. 1082.) “ Not surprisingly, the district court found it difficult before t rial to determine which elements of this theory had some evidentiary foundation, and which were based on mere speculation. Even so, the court gave plaintiffs ample notice that they were skating on
thin ice: in denying defendants’ motions to dismiss, the court warned plaintiffs that their conspiracy claim had barely survived dismissal. The court gave plaintiffs the benefit of the doubt by allowing their conspiracy claim to go to trial, but this gener osity did not negate plaintiffs ’ responsibility to litigate a factually grounded claim. ” ( Id. at p. 1081.) Here too, the pre verdict motions whittled away at LAWA’s CFCA cause of action
and the court put LAWA on notice at the summary adjudication stage that its CFCA
claim was , at best, “ weak. ” That the court allowed the CFCA claim to go the jury on the

one remaining theory did not relieve LAWA of responsibility to litigate a factu ally

13grounded claim. (See Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 923 [in state employ ment discriminatio n case, rejecting argument a claim that survived summary judgment cou ld not be frivolous for purpose of defendant ’s attorney fees :

“ [d] eclarations sufficient to create a triable issue in a summary judgment proceeding may, in the crucible of a trial, be revealed to be spurious and the litigant’s claim
frivolous” ] .)
LAWA does not seriously contest the trial court’s assessment of the evidence presented on its CFCA claim. LAWA’s opening brief devotes a three

- sentence paragraph and footnote to discussing the factual background and evidentiary landscape of the case
, as distinct from its procedural history, and makes only a cursory reference to purported “substantial evidence” in support of its implied c ertification theory

. LAWA briefly cites testimony excluded in limine
, related to its voluntarily dismissed fraudulent inducement theory , but does not address the trial court’s ruling on the evidence

. A lthough JRI devoted 16 pages of its respondent’s brie f to review ing and analyzing the evidence in the

case, including a discussion of the excluded testimony, LAWA did not bother to respond
with its own review and analysis of the evidence in its reply brief. By failing to discuss
all relevant evidence, LAWA failed to meet its burden on appeal to show trial court erred in finding the claim was frivolous and harassing

. (See Hoffman Street, LLC v. City of West Hollywood (2009) 179 Cal.App.4th 754, 772

– 773 [appellant bears burden to show trial court error and pr ejudice]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [“appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ‘ “are required to set forth in their brief all the material evidence on the po int ” ’ ”].)
III. D ISPOSITION The attorney fee award is affirmed. LAWA shall bear JRI’s costs on appeal.

14_________________________ BRUINIERS, J.

WE CONCUR:

_________________________ JONES, P. J.

_________________________ SIMONS, J.

A151729

15Superior Court of San Mateo County, No. CIV518872, Marie S. Weiner, Judge.
Morrison & Foerster, Miriam A. Vogel, Arturo J. Gonz á lez, Derek F. Foran, Nicholas A. Roethli sberger, Elizabeth Balassone, R. Benjamin Nelson and James R. Sigel for Defendant, Cross

- complainant and Appellant.
Duane Morris, Oliver L. Holmes, William J. Baron and Justin J. Fields for Plaintiff, Cross

- defendant and Respondent.

16