Filed 9/1/16 Radakovic v. County of Los Angeles CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DIANA RADAKOVIC et al.,

Plaintiffs and Appellants,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

 B266194

 (Los Angeles County

 Super. Ct. No. MC024244)

APPEAL from an order of the Superior Court of Los Angeles County, Mark 

Mooney, Judge. Affirmed.

Law Office of George H. Jones and George H. Jones for Plaintiffs and Appellants.

Peterson Bradford Burkwitz, Avi Burkwitz and Richard Barrios, for Defendant 

and Respondent.
2

Plaintiffs and appellants Diana Radakovic (Radakovic) and Sean Rougeau

(Rougeau) are a married couple, and both worked for defendant and respondent County 

of Los Angeles (County or defendant). In 2011, Radakovic sued the County under the 

California Fair Employment and Housing Act (FEHA), alleging retaliation after 

Radakovic complained of racial discrimination. In 2012, a court granted summary 

judgment to the County in that action. In 2013, Radakovic, joined by her husband

Rougeau, filed another action against the County for retaliation and failure to prevent 

retaliation that was largely based on the same allegations presented in Radakovic’s 2011

complaint. A court again granted summary judgment to the County, this time also 

awarding attorney fees to the County under a FEHA provision that permits a prevailing 

defendant to recover attorney fees if the action was “objectively without foundation.” 

(Gov. Code1§ 12965, subd. (b); Williams v. Chino Valley Independent Fire Dist. (2015) 

61 Cal.4th 97, 115 (Williams).) We consider whether the award of attorney fees to the 

County was an abuse of the trial court’s discretion.

I. BACKGROUND2

A. Plaintiffs’ Complaints

Radakovic and Rougeau both worked as nurses for the County, albeit at different 

facilities. According to plaintiffs, after Radakovic’s supervisor, Katty Callender 

(Callender), learned Radakovic, a Hispanic woman, was married to Rougeau, who is

African American, Callender engaged in the following acts from mid-2010 to mid-2011, 

all of which Radakovic alleged to be discriminatory and retaliatory: forcing Radakovic to 

remove family photos from her office area, denying her requested vacation time off, 

 

1

Undesignated statutory references that follow are to the Government Code.

2 Multiple documents that were filed in the trial court are not in the record on 

appeal. Our summary of the relevant background facts is taken primarily from plaintiffs’ 

2013 complaint and, where the evidence appears to be undisputed, from the County’s 

separate statement of material facts submitted in support of its motion for summary 

judgment. Plaintiffs did not include their own separate statement, or any response to the 

County’s, in the record.
3

issuing evaluations of Radakovic’s work performance that were more negative than those

she received prior to Callender’s supervision, and assigning her to a less favorable work 

schedule. 

In August 2011, Radakovic sued the County for retaliation based on these 

allegedly unlawful actions.

3

A year later, a court granted summary judgment in full to the 

County. Radakovic did not appeal.

Radakovic, this time joined by Rougeau, again sued the County in 2013, with both 

plaintiffs alleging causes of action for retaliation and failure to prevent retaliation under 

FEHA. The bulk of their complaint describes the aforementioned actions by Callender in 

2010 and 2011. Plaintiffs also asserted, however, that after Radakovic sued the County 

in 2011, it retaliated against plaintiffs in the following ways: (1) Callender denied 

Radakovic a two-day vacation request made in September 2011, (2) Callender “falsely 

initiated” an investigation into Radakovic in October 2011, which ultimately resulted in 

the County suspending her for 15 days in May 2013, (3) Callender unfairly rated

Radakovic’s work performance as merely “competent” in December 2011, (4) 

Callender’s assistant continued to pressure Radakovic to remove family photos from her 

workspace, and (5) the County commenced a “wrongful[]” investigation into Rougeau in 

December 2011 that ultimately resulted in his “forced” resignation in February 2013. 

Radakovic continues to work for the County, but she is now at a different facility where 

she is no longer supervised by Callender.

B. Defendant’s Motion for Summary Judgment

In August 2014, the County moved for summary judgment on all of plaintiffs’ 

causes of action, contending res judicata barred the greater part of their claims and those 

that remained were meritless. The County argued that plaintiffs’ allegations predating 

 

3

Radakovic’s 2011 complaint is not included in the record but the County provides 

a chart documenting the similarity of allegations made in the 2011 and 2013 complaints, 

and there is no evidence in the record plaintiffs disputed the County’s comparison of the 

allegations in the two suits. 
4

the 2011 complaint had been adjudicated on the merits against Radakovic or were now 

precluded because they could have been raised in that action. As to the allegations 

concerning events that occurred after the 2011 complaint, the County contended plaintiffs 

could not state a prima facie case for retaliation or rebut the County’s legitimate business 

reasons for its actions, namely, that the County initiated disciplinary procedures against 

plaintiffs based on uncontroverted evidence plaintiffs misused County property. 

The County argued Radakovic could not establish a prima facie case of retaliation 

based on her December 2011 performance evaluation because the evaluation did not 

constitute an adverse employment action, citing Pinero v. Specialty Restaurants Corp.

(2005) 130 Cal.App.4th 635, 646 (oral or written criticism of employee’s work 

performance not an adverse employment action where criticism was supported by 

legitimate business reasons and employee did not experience any changes in 

responsibilities, title, salary, or other forms of compensation). Here, Callender rated 

Radakovic “competent” after observing deficiencies in Radakovic’s work efficiency, 

documentation, and compliance with County policies and instructions. The County 

asserted Radakovic was not disciplined, demoted, or otherwise subjected to any change in 

her employment on account of the evaluation and argued Radakovic could point to no 

evidence suggesting the evaluation was retaliatory. 

As to Radakovic’s suspension in 2013, the County contended she could not 

adduce evidence supporting an inference of retaliation. The County explained it began 

investigating Radakovic for sending inappropriate e-mails after one of Radakovic’s 

coworkers, Emilia Ramos, complained about receiving such an e-mail from Radakovic. 

After Ramos reported the e-mail to her manager (who was not Callender), an unknown 

person called the County Auditor Fraud Hotline (Fraud Hotline), which investigates 

misuse of County resources. Two employees in the County’s Administrative Deputy’s 

office opened an investigation, and they discovered Radakovic had sent numerous 

inappropriate e-mails to both fellow employees and outside parties, some of which were 

provocative or sexual in nature and one of which disclosed a juvenile’s private protected 
5

information. Radakovic did not deny sending the e-mails. On the basis of its 

investigation, the County suspended her for 15 days in May 2013.4

Addressing Rougeau’s retaliation claims, the County contended they were 

meritless because he presented no proof he had exhausted his administrative remedies by 

submitting a complaint to the Department of Fair Employment and Housing (DFEH) 

(§ 12960, subds. (b) & (d)), the County took no adverse employment actions against him, 

and Rougeau could point to no evidence implying the County decided to discharge him

because he engaged in protected activity. 

Instead, the County submitted evidence to demonstrate it began investigating 

Rougeau’s use of e-mail after noticing “thousands” of non-work-related e-mails to and 

from his account during its investigation of Radakovic. In looking into Rougeau’s e-mail 

activity, the County found graphic, sexually explicit images, videos, and messages,

including pictures of nude bodies, genitalia, and people engaged in sexual activity; sexist 

and offensive jokes; and personal communications of a graphic and sexual nature. 

Upper-level County administrators supported terminating Rougeau, and the County 

notified him of its intent to do so. Rougeau resigned before the County finalized his 

discharge, stating that he was doing so in order to go back to school, which he apparently 

did.

In opposition to the County’s motion for summary judgment, plaintiffs argued 

material, triable issues of fact existed as to whether the County’s suspension of 

Radakovic and Rougeau’s “forced” resignation were retaliatory.5 With respect to 

Radakovic, plaintiffs argued that because her suspension was purportedly initiated by a 

call to the Fraud Hotline, the source of the call could reveal a retaliatory motive. 

Plaintiffs asserted there was conflicting evidence on that issue and that a jury could infer 

 

4

A hearing officer of the Civil Service Commission upheld Radakovic’s 

suspension. She did not appeal the decision.

5

In opposing the County’s motion, plaintiffs limited their arguments to these two 

actions; they did not address any of the other allegations made in their complaint. 
6

from the conflict that no one in fact did call the Fraud Hotline, which would mean the 

County lied about the basis for Radakovic’s suspension. As to Rougeau, plaintiffs argued 

he engaged in protected activity by serving as a potential witness in Radakovic’s 2011 

lawsuit, his resignation should be deemed a constructive termination, and a factfinder 

could surmise that Callender, motivated by hostility toward Radakovic’s interracial 

marriage, somehow had a hand in the investigation of Rougeau.

The summary judgment hearing before the trial court, which took place over two 

days in November 2014 and January 2015, was not transcribed by a court reporter and no 

settled statement of the proceedings is included in the record. After the November 

hearing, the court granted summary judgment to the County as to Radakovic’s claims. It 

continued the hearing as to Rougeau to allow him to prove he had filed a timely 

complaint with DFEH.

Neither Rougeau nor his attorney appeared at the continued hearing, nor did either 

submit any evidence of Rougeau’s DFEH filing. The court accordingly “adopted its 

tentative ruling of November 18, 2014 as the final ruling” of the court. The tentative 

ruling the court adopted is not included in the record on appeal, but the final judgment, 

which is, reads: “[p]ursuant to Section 437c(g) of the Code of Civil Procedure, the Court 

finds that there are no triable issues of material fact and that [the County] is entitled to 

summary judgment as to both [Radakovic’s and Rougeau’s] causes of action . . . .” The 

record further indicates that the grant of summary judgment as to Rougeau’s claims was 

based on his failure to exhaust administrative remedies. Plaintiffs did not appeal the 

judgment.

C. Defendant’s Motion for Attorney Fees

In April 2015, the County brought a motion to recover its attorney fees. It 

acknowledged that prevailing defendants in FEHA actions were not routinely awarded 

fees but argued—with citation to applicable authority—an award was appropriate in this 

case because plaintiffs’ claims were frivolous, vexatious, and without merit.
7

With regard to Radakovic’s claims, the County argued that by opposing summary 

judgment solely on the basis of her temporary suspension, Radakovic “abandon[ed] the 

vast majority of [her] allegations” in support of retaliation, demonstrating she “knew the 

facts contained in the instant lawsuit were previously litigated as part of her previous 

lawsuit and were therefore barred under res judicata and claim preclusion.” It argued 

further that Radakovic’s suspension-based retaliation claim was frivolous because there 

was no evidence from which a factfinder could infer any of the parties involved in 

Radakovic’s suspension bore retaliatory animus against her and Radakovic offered no

argument to suggest the underlying basis for her suspension, which was supported by

uncontroverted evidence, was pretextual. 

The County argued Rougeau’s claims were likewise frivolous because he provided 

no evidence he had filed a complaint with DFEH, which was a prerequisite to bringing

his FEHA claims in the first place, and he failed to appear at the continued summary 

judgment hearing. The County also asserted Rougeau did not deny sending inappropriate 

videos, images, and jokes through his work e-mail account, which was the basis for the 

County’s decision to discharge him, and Rougeau pointed to no evidence suggesting the 

County’s decision was pretextual.

The County requested attorney fees based on a reasonable hourly rate calculated 

under the lodestar method or, in the alternative, actual fees billed to date. The County 

said it spent 455 attorney hours defending against plaintiffs’ suit and sought to recover 

$141,000 based on a rate of $400 per hour for the 45 hours ($18,000) billed by the 

partner who worked on the matter and $300 per hour for the 410 hours ($123,000) billed

by the associate on the case.6 The County acknowledged its attorneys actually charged a 

lower billing rate ($155 per hour) than it sought to recover but argued that counsel’s 

 

6

The County’s attorneys attributed the time spent on the action to taking and 

defending depositions, reviewing documents, conducting discovery, attending hearings, 

meeting with witnesses, and preparing motions, including the motion for summary 

judgment, on which they spent 75 hours, and the motion for attorneys’ fees, which took 

10 hours.
8

actual billing rate was far below market rate for employment attorneys in the Los Angeles 

area. As an alternative to recovery under the lodestar method, the County sought actual 

fees at a rate of $155 per hour for 455 hours billed, totaling $70,525. 

In their opposition to the County’s motion for attorney fees, plaintiffs argued their 

case had merit by emphasizing the same allegations and contentions they had made in 

previous filings. In addition, they contended Radakovic’s claims were not entirely barred 

by res judicata, that vigorously pursuing their rights did not render the litigation 

frivolous, and that the number of hours the County’s counsel claimed to have worked on 

the case belied their argument the suit was without merit. Plaintiffs also provided, for the 

first time, evidence Rougeau had filed a complaint with DFEH before bringing suit. 7

The trial court held a contested hearing on the motion, but the record on appeal 

contains no reporter’s transcript or settled statement of the proceeding. In a minute order, 

the court indicates it read and reviewed the parties’ submissions and considered their oral 

arguments. The court granted the County’s motion for attorney fees in the amount of 

$35,185, and its written order states: “The Court hereby rules that good cause has been 

shown to grant Defendant’s Motion for Attorney’s Fees. In particular, this Court finds 

that Plaintiffs failed to present any admissible evidence in opposition to Defendant’s 

Motion for Summary Judgment, especially with regard to Legitimate Business Reason, 

and further find that Plaintiffs’ counsel’s failure to appear at the continued MSJ hearing 

was a tacit admission that the case had no merit.” 

 

7

Rougeau apparently filed a complaint with DFEH in July 2012 but his name was 

misspelled on the submission. Thus, when the County requested a copy of Rougeau’s 

filing from DFEH, it was told no records were available. In a declaration executed in 

November 2014, prior to the first summary judgment hearing, plaintiffs’ counsel stated 

Rougeau’s complaint was “in the process of being produced.” There is evidence DFEH 

sent a copy of Rougeau’s complaint to plaintiff’s counsel on November 21, 2014, but 

plaintiffs did not actually provide a copy of Rougeau’s DFEH complaint until after 

summary judgment, when the County brought its motion for attorney fees.
9

II. DISCUSSION

Plaintiffs contend their suit had merit such that an award of attorney fees for a 

prevailing defendant under FEHA was an abuse of the trial court’s discretion. We 

conclude, on the basis of the limited record before us, that plaintiffs have failed to carry 

their burden to demonstrate the trial court erred. We therefore affirm the fee award.

A. Operative Legal Principles and Standard of Review

FEHA authorizes courts to award prevailing parties their “reasonable attorney’s 

fees and costs.” (§ 12965, subd. (b).) It is well settled, however, that a prevailing 

defendant in a FEHA action may only recover attorney fees if “the action was objectively

without foundation when brought, or the plaintiff continued to litigate after it clearly 

became so.”8(Williams, supra, 61 Cal.4th at p. 115; accord, Leek v. Cooper (2011) 194 

Cal.App.4th 399, 419 [defendant in a FEHA action may only recover attorney fees if “the 

action was unreasonable, frivolous, meritless or vexatious”]; Mangano v. Verity, Inc.

(2008) 167 Cal.App.4th 944, 949 [suit must be “groundless or without foundation”].) A 

plaintiff’s lack of success, by itself, does not justify an award of fees to the defendant, but 

the prevailing defendant need not show the plaintiff initiated the suit in bad faith to 

recover fees. (Christiansburg, supra, 434 U.S. at p. 421.) 

Where a court concludes a prevailing party should recover attorney fees under 

section 12965, subdivision (b), it ordinarily proceeds by “first determin[ing] a touchstone 

or lodestar figure based on a careful compilation of the time spent by, and the reasonable 

hourly compensation for, each attorney, and the resulting dollar amount is then adjusted 

upward or downward by taking various relevant factors into account. [Citations.]” 

(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985.) In awarding attorney fees to 

 

8

This standard derives from Christiansburg Garment Co. v. Equal Employment 

Opportunity Com. (1978) 434 U.S. 412 (Christiansburg), in which the United States 

Supreme Court held that prevailing defendants in federal civil rights actions must meet a 

higher bar when seeking attorney fees than prevailing plaintiffs in order to deter meritless 

litigation without discouraging plaintiffs from filing claims with a reasonable basis. (See 

Williams, 61 Cal.4th at pp. 109-112.)
10

a prevailing defendant under FEHA, the trial court “must make ‘express written findings’ 

demonstrating that it has applied the proper standards. [Citation.]” (Robert v. Stanford 

University (2014) 224 Cal.App.4th 67, 70 (Robert).) We review an award of attorney

fees to a prevailing defendant in a FEHA action for abuse of discretion (see id. at p. 73), 

keeping in mind such discretion must be exercised within the boundaries of the standards 

enunciated above.

B. Analysis

The party challenging an award of attorney fees bears the burden of providing an 

adequate record to demonstrate error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)

Here, there are certain materials not included in the record, most significantly, a 

reporter’s transcript or settled statement of relevant court proceedings. We do not 

presume error on appeal; rather, the opposite is true: we presume that the court’s fees 

order is correct unless plaintiffs can demonstrate otherwise. (Hearn v. Howard (2009) 

177 Cal.App.4th 1193, 1201; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 

Cal.App.4th 440, 447 (Vo).)

Although the court’s written attorney fees order was not detailed, when combined 

with the statement that the court considered the parties’ comprehensive briefing and oral 

arguments—which set forth, without dispute or objection, the applicable legal standard—

the order sufficiently demonstrates the court concluded both plaintiffs’ claims were 

objectively without foundation.

The bulk of Radakovic’s claims largely stemmed from conduct predating her 2011 

complaint and could be found, therefore, to have been precluded by the prior adjudication 

on the merits against her. The trial court reasonably concluded that pursuing a second 

lawsuit on the basis of those same allegations was unreasonable. Radakovic essentially 

conceded her claims were largely barred by res judicata and could survive only on the 

basis of her challenge to the County’s 15-day suspension of her employment in 2013.

The record before the trial court supported a determination that Radakovic’s 

decision to prosecute that challenge was objectively without foundation. To prevail on a 
11

claim of retaliation under FEHA, the plaintiff must show “(1) he or she engaged in a 

‘protected activity,’ (2) the employer subjected the employee to an adverse employment 

action, and (3) a causal link existed between the protected activity and the employer’s 

action. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) 

Radakovic adduced no evidence from which a factfinder could infer a causal link 

between her 2011 lawsuit and 2013 suspension. The only dispute of fact offered by 

Radakovic to support her claim is that it was unclear who made the anonymous call to the 

Fraud Hotline regarding Radakovic’s e-mail use. While Radakovic alludes to evidentiary 

support for that contention, the record before us is inadequate to support it. What the 

record does show is that the County began investigating Radakovic after a coworker 

complained to a manager about Radakovic’s e-mail use and that Radakovic pointed to no 

evidence suggesting she did not send the e-mails at issue or that the County’s grounds for 

her suspension were otherwise unmerited. Where a prior motion for summary judgment 

had been granted on similar, albeit not identical claims, this is a frivolous basis on which 

to mount a retaliation suit.

The record also supports a finding by the trial court that Rougeau’s claims were

objectively meritless. While the failure to exhaust administrative remedies is not a 

ground in itself for concluding a suit lacks merit (Hon v. Marshall (1997) 53 Cal.App.4th 

470, 477-478), the court in this case did not grant judgment against Rougeau solely on 

the basis of what then appeared to be a failure to file a complaint with DFEH. The 

court’s final judgment, in which it found “there [were] no triable issues of material fact” 

as to either of plaintiff’s claims, and its order awarding attorney fees, in which it ruled 

both plaintiffs failed to present any evidence to rebut the County’s legitimate business 

reasons for its actions, support a conclusion that the court determined Rougeau’s suit was 

groundless on its merits, regardless of whether or not he exhausted his administrative 

remedies. Plaintiffs confirm this interpretation in their opposition to the County’s motion 

for attorney fees, where they state the court “ruled on all issues in the [motion for 
12

summary judgment] on November 18, 2014.”9 The court’s presumed conclusions are 

further supported by the record. There was no evidence from which a factfinder could 

infer Rougeau engaged in protected activity or, a fortiori, that the County forced him to 

resign because he engaged in protected conduct. Nor did Rougeau point to any evidence

susceptible to an intimation of pretext. Rougeau did not work at the same facility as 

Radakovic and he had no connection to Callender, the alleged source of discriminatory 

and retaliatory motive. Finally, the court was justified in concluding that Rougeau’s 

failure to appear at his continued summary judgment hearing “was a tacit admission that 

the case had no merit.” On the limited record before us, we cannot evaluate Rougeau’s 

assertion that he was not required to appear at the hearing. All we have to rely upon is 

the court’s order awarding attorney fees, which clearly conflicts with Rougeau’s 

statement. Nor has Rougeau offered any explanation for why he waited so long to 

provide a copy of his DFEH complaint. 

We also see no abuse of discretion in the amount of attorney fees the court 

awarded to the County. Plaintiffs generally challenge the number of hours the County’s 

attorneys claimed to have spent on the case but do not otherwise question the trial court’s 

method of calculating fees. Without a reporter’s transcript or settled statement of the 

hearing, we cannot examine the court’s methodology in awarding fees nor do we know 

whether plaintiffs made any specific objections to the County’s breakdown of time 

expended on the litigation. The lack of an adequate record therefore precludes us from 

holding the Court abused its discretion in making its specific award. (Vo, supra, 79 

Cal.App.4th at p. 448.)

Furthermore, even on the inadequate record we do have, we see no error. By 

declaration, the County’s attorneys stated they performed 455 hours of work defending 

against plaintiffs’ suit and asked for $141,000 in fees under the lodestar method. The 

court’s award reflects a decision to give the County only their actual fees, and based on 

 

9

In fact, plaintiffs argue they did not believe they needed to appear at the January 

hearing for this very reason, that the court had already made its summary judgment ruling 

as to both plaintiffs’ claims in November. 
13

half the claimed hours worked. While we do not know whether the court halved the 

number of hours requested because it determined only some of plaintiffs’ claims were 

meritless or because it determined that such smaller number of hours more reasonably 

reflected the nature of the lawsuit, in either case the court’s decision to reduce the 

requested fees by approximately 75 percent strikes us as a proper exercise of its

discretion.

DISPOSITION

The judgment is affirmed. Respondent is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

KRIEGLER, Acting P.J.

RAPHAEL, J.



 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.