Filed 12/29/23 Redondo v. County of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

CYNTHIA REDONDO et al.,

Plaintiffs and 

Appellants,

v.

COUNTY OF LOS ANGELES,

Defendant and 

Respondent.

 B323026, consolidated with 

 B324398

 (Los Angeles County

 Super. Ct. No. 

 21STCV07421)

APPEAL from a judgment and postjudgment order of the 

Superior Court of Los Angeles County, William F. Fahey, Judge. 

Affirmed.

Alexander Morrison + Fehr, Tracy L. Fehr; Romero Law, 

Alan Romero and Lucas Rowe for Plaintiffs and Appellants.
2

Peterson, Bradford, Burkwitz, Gregorio, Burkwitz & Su, 

Avi Burkwitz, Sherry Gregorio, Gayane Muradyan and Jade 

Yang for Defendant and Respondent. 

* * * * * *

Three female Los Angeles County Sheriff’s deputies alleged 

they were subjected to unchecked sexual harassment, 

discrimination, retaliation, and intimidation by their coworkers

at the courthouse where they were stationed. The trial court 

dismissed all of the deputies’ claims on summary judgment and 

then granted the employer attorney fees because the deputies 

persisted in pressing their lawsuit even after it became obvious 

there was “no evidence” supporting certain key elements of their 

claims. We independently agree with the grant of summary 

judgment and find no abuse of discretion in the award of fees. 

Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Plaintiffs’ employment

Cynthia Redondo (Redondo), Daisy Funes (Funes), and 

Jennifer Khanna (Khanna) (collectively, plaintiffs) are all 

deputies with the Los Angeles County Sheriff’s Department (the 

Department) and, at the times pertinent to the claims in this 

case, worked at the Norwalk Courthouse (the Courthouse). 

Khanna began her employment with the Department in January 

2001 and was assigned to the Courthouse in September 2016. 

Funes began her employment with the Department in April 2012 

and was assigned to the Courthouse in June 2017. Redondo 

began her employment with the Department in October 2007 and 
3

was assigned to the Courthouse in April 2020. Above plaintiffs in 

the chain of command was a sergeant and, above him, a 

lieutenant. Plaintiffs enjoyed their work environment at the 

Courthouse until the fall of 2019, when Daniel Genao (Genao) 

and Dolores Guerrero (Guerrero) were transferred to that 

location.

B. Conduct by Genao

Genao was assigned to the Courthouse at the end of 2019. 

1. Inappropriate sexual conduct

Genao began making sexually inappropriate comments in 

January 2020. In front of Funes and Khanna, he made crude 

remarks about the judge for whom he served as a bailiff. Funes 

and Khanna also overheard Genao say that he was “confus[ed]” 

by Guerrero’s sexuality because, though she is a lesbian, she 

would look at Genao as if she wanted him to “grab her against 

the wall and just fuck her.”

While in the first-floor lockup of the Courthouse—where 

inmates are held pending their hearings—Genao would make 

bodily movements and loud noises as if he was having an orgasm. 

Funes and Redondo witnessed this offensive conduct a few times; 

Khanna did not personally witness it but was uncomfortable 

upon later learning it took place. 

2. Treatment of female deputies

Plaintiffs recounted other conduct by Genao that they 

found offensive. Among other things, Genao:

● once rejected assistance from Redondo, causing her to 

feel “belittled”;

● once contradicted the orders Funes had made to 

inmates Funes was transporting from lockup to the courtrooms;
4

● mocked Funes on one occasion for obeying COVID-19 

social distancing rules on an elevator, and on a different occasion 

for not participating with other deputies in monitoring a protest 

because she had a doctor’s appointment;

● once yelled at Redondo for completing one of Genao’s 

tasks for him;

● told other deputies that he “lost the little respect” he 

had for Khanna after she voiced disagreement with a patrol 

assignment; 

● once “threw a tantrum” and used profanity in 

referring to Khanna after she moved inmates to the first-floor 

lockup; and

● once criticized a different female deputy for making a 

mistake and stating that she is “stupid” and “needs to retire.”

Plaintiffs felt that Genao’s treatment of them and other female 

deputies was different than how he treated their male 

counterparts. His conduct also appeared to be infectious; a 

different male deputy called Funes a “fucking bitch” during a 

debate about politics, and another told her, “[Y]eah motherfucker, 

there’s a new sheriff in town and I suggest that you get the fuck 

out of here.”

3. Plaintiff’s report and the Department’s response

On June 19, 2020, plaintiffs together went to their 

sergeant’s office to report Genao’s conduct. The sergeant 

questioned plaintiffs’ allegations and initially attempted to 

explain away Genao’s behavior, suggesting that Genao was just 

having a “bad day” and that plaintiffs should have first discussed 

their issues with Genao directly. As required, however, the 

sergeant referred plaintiffs’ complaint to the County Office of 

Equity, which launched an investigation. 
5

A couple of days after they reported Genao, plaintiffs’ 

lieutenant put out radio calls to each of them to come to his office

for a meeting, at which he instructed them to submit written 

statements summarizing their allegations. Plaintiffs prepared 

their statements on the bank of computers in the Department’s 

office. The lieutenant separated plaintiffs from Genao while the 

investigation was pending: Specifically, Genao was ordered to 

remain in the first-floor lockup of the Courthouse, and plaintiffs 

were ordered to not go to that location, although plaintiffs still

occasionally encountered Genao in the Courthouse. To further 

“defuse the situation,” the lieutenant told Genao about plaintiffs’ 

report. The separation order lasted approximately one month.

After completing its investigation, the Department 

transferred Genao to a different courthouse (and hence away 

from plaintiffs).

C. Conduct by Guerrero

Guerrero was assigned to the Courthouse in August 2019.

1. Slashing of Khanna’s tire

On June 23, 2020, Khanna turned on her car to drive home 

at the end of her shift, and the tire pressure light turned on. 

Khanna kicked the tires, but did not see anything wrong. She 

drove home. By the time she arrived, the tire was flat, so 

Khanna’s husband took the car to a tire shop, where a “workman” 

informed him that the tire had been slashed. Khanna is “not a 

car person,” but concluded that the tire had been slashed by a 

blade and further concluded that Guerrero was responsible 

because (1) Guerrero was friends with Genao and showed 

“resent[ment]” for Khanna’s report about Genao by “roll[ing] her 

eyes” and “scowl[ing]” at Khanna; and (2) Guerrero had a “daily 
6

routine” of exercising in the parking structure during a late lunch 

break that hardly anyone else shared. 

The Department investigated, and issued an incident 

report regarding the damage to Khanna’s vehicle, but found no 

evidence that any Department employee was responsible. 

2. Interaction with Funes

Funes and Guerrero did not have a pleasant working 

relationship. According to Funes, Guerrero would “intentionally” 

make mistakes on paperwork to make Funes’s job harder and to 

“annoy” Funes, and would “single . . . out” Funes with 

“antagonistic” orders over the radio system. Sometimes Guerrero 

would bring pastries for all of the deputies except Funes, noting 

that Guerrero only brings them for her “friends”; Guerrero also 

organized a potluck despite social distancing rules and “excluded” 

Funes, Redondo, and Khanna. Guerrero would also “mad dog[]” 

Funes. Funes complained about Guerrero to her supervisors, and 

Guerrero was “counseled” about professionalism in the 

workplace. Funes also reported Guerrero to the sergeant and 

lieutenant for coming to work with a hangover and taking a nap 

on the clock.

In September 2021, Funes did a pat-down search of an 

inmate and found no contraband. When Guerrero later searched 

the same inmate, Guerrero found drugs. When a senior deputy 

confronted Funes about not finding the drugs, Funes argued with 

the senior deputy that it was not her job to conduct a thorough 

search. When Guerrero got fed up waiting for Funes to finish 

arguing with the senior deputy, Guerrero dropped the drugs into 

an open pocket on Funes’s uniform, said, “[H]ere are your drugs” 

to be booked into evidence, and walked away.
7

D. Khanna’s vacation request for religious 

observance

Khanna practices Judaism and attends temple services for 

the holiest Jewish holidays. Khanna’s requests for time off to 

observe the Passover holiday, as well as other Jewish holidays,

were consistently granted by the Department for the 10 to 15 

years prior to 2020. The Department initially granted her 

requests to use accrued vacation time on April 9, 2020 and April 

16, 2020 to observe the Passover holiday, but her requests were 

subsequently denied when the Department issued a policy on 

March 12, 2020 cancelling “all vacations” “in light of the threat 

of” COVID-19. Khanna used accrued sick time instead to observe 

Passover. 

II. Procedural Background

A. Plaintiffs’ complaint

Plaintiffs sued the County of Los Angeles (the County) on 

February 24, 2021. In the operative first amended complaint, all 

three plaintiffs alleged that Genao’s conduct and the 

Department’s response gave rise to causes of action for (1)

sex/gender harassment under the Fair Employment and Housing 

Act (FEHA) (Gov. Code, § 12900 et seq.); (2) discrimination on the 

basis of sex/gender under FEHA; (3) retaliation under FEHA and 

Labor Code section 1102.5; and (4) failure to prevent 

discrimination, harassment and retaliation under FEHA. 

Khanna also asserted separate causes of action for (1) religious 

creed discrimination under FEHA, based on the denial of her 

vacation request to observe Passover; and (2) violations of the 

Tom Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1 et seq.)

and the Ralph Civil Rights Act of 1976 (Ralph Act) (id., § 51.7 et 

seq.), based on the damage to her tire. 
8

B. The County’s motion for summary judgment 

The County moved for summary judgment. After further 

briefing, and an initial ruling by the trial court granting plaintiffs 

an opportunity to cure the deficiencies in their over 300-page 

separate statement, the court granted the County’s motion.

The trial court concluded that plaintiffs “fail[ed] to present 

competent evidence showing that there are material disputed 

issues to be tried.” (Italics in original.) The court ruled that

plaintiffs’ sex/gender harassment claim failed as a matter of law 

because the conduct alleged as harassment was committed by a 

nonsupervisory coworker, and on the undisputed facts, was not 

attributable to the Department. The court ruled that plaintiffs’ 

two claims for retaliation as well as their claim for sex/gender 

discrimination failed as a matter of law because the undisputed 

facts established that they did not suffer any adverse 

employment action. The court rejected Khanna’s separate claims 

because the undisputed facts showed that the Department did

accommodate her religious observance and because Khanna’s 

belief that Guerrero or any other deputy was responsible for 

slashing her tire was “mere speculation” based entirely on 

“inadmissible hearsay.” The court rejected plaintiffs’ failure to 

prevent FEHA harassment, discrimination and retaliation claims

as wholly derivative of their other, unsuccessful FEHA claims.

C. The County’s motion for attorney fees

On August 26, 2022, the County filed a motion seeking 

$28,215 in attorney fees incurred in connection with the 

summary judgment motion and trial preparation.1 After further 

1 The County also requested $40,989.84 in costs, but the trial 

court denied that request as untimely and the County does not 

challenge that ruling on appeal. 
9

briefing and a hearing, the trial court issued a ruling granting 

the County’s motion. 

D. Plaintiffs’ appeals

Plaintiffs appealed the trial court’s judgment for the 

County and the trial court’s attorney fee order. We consolidated 

the two appeals. 

DISCUSSION

Plaintiffs argue that the trial court erred in granting 

summary judgment on their claims and awarding the County 

attorney fees. 

I. Ruling on Summary Judgment

Summary judgment is appropriate when the moving party 

shows “[it] is entitled to a judgment as a matter of law” (Code 

Civ. Proc., § 437c, subd. (c)) because, among other things, the 

nonmoving party (here, plaintiffs) cannot establish “[o]ne or more 

of the elements of the[ir] cause of action” (id., subds. (o)(1) & 

(p)(2)). (QDOS, Inc. v. Signature Financial, LLC (2017) 17 

Cal.App.5th 990, 998.) In this way, summary judgment serves as 

“‘a vehicle to weed the judicial system of an unmeritorious case.’” 

(Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 299.) 

Summary judgment should be denied only when there are 

“genuine” or “triable” issues of fact to be resolved at trial—that is, 

when “the evidence would allow a reasonable trier of fact to find . 

. . in favor of the party opposing the [summary judgment] 

motion.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 

830, 860, (Serri), citing Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 845; Code Civ. Proc., § 437c, subds. (f)(1), (o)(1) & 

(p)(2).) In applying this standard, we independently review the 

evidence before the trial court except the evidence to which an 

objection was made and sustained (and when that evidentiary
10

ruling is not challenged on appeal), and we view that evidence in 

the light most favorable to the nonmoving party, “resolving . . . 

any doubts” against summary judgment. (Salas v. Sierra 

Chemical Co. (2014) 59 Cal.4th 407, 415; Wilson v. 21st Century 

Ins. Co. (2007) 42 Cal.4th 713, 716-717; Roe v. McDonald’s Corp. 

(2005) 129 Cal.App.4th 1107, 1113 [where party opposing 

summary judgment does not challenge trial court’s evidentiary 

ruling to evidence, we consider that evidence “‘“‘properly 

excluded’”’”].) Because our review is de novo, our focus is the trial 

court’s ruling, and we may therefore affirm on any ground 

regardless of whether the trial court relied on that ground. 

(Burgueno v. Regents of University of California (2015) 243 

Cal.App.4th 1052, 1057.)

As a threshold matter, plaintiffs assert that the trial court 

unfairly enforced the procedural requirements attendant to 

motions for summary judgment by, in their view, unfairly 

criticizing them for filing a 293-page response to the County’s 

separate statement of undisputed facts that included an 

additional 519 new factual assertions and that was riddled with 

procedural errors. (See Cal. Rules of Court, rule 3.1350(f)(2) 

[setting forth requirements of opposition separate statement]; 

Code Civ. Proc., § 437c, subd. (b)(3) [failure to comply with 

requirements for opposition separate statement “may constitute a 

sufficient ground, in the court’s discretion, for granting” summary 

judgment].) We reject this assertion for two reasons. First, any 

defects in the court’s procedural analysis are irrelevant because 

we are engaging in de novo review by looking at the admissible 

evidence in the record rather than whether—and how—that 

evidence was set forth in the parties’ separate statements. 

Second, the trial court did not commit any error that affected its 
11

ruling on the merits because the court also looked at the evidence

rather than focusing on the staggeringly inefficient way in which 

plaintiffs chose to summarize it. (See Collins v. Hertz Corp. 

(2006) 144 Cal.App.4th 64, 72-73 [purpose of separate statement 

defeated where trial court “is forced to wade through stacks of 

documents” and “cull through the arguments” to determine “what 

remains at issue”].) 

A. Sex/gender harassment claim (by all plaintiffs)

To prevail on a claim for sexual harassment under FEHA, a 

plaintiff must establish that (1) the employer subjected the 

plaintiff to verbal or physical contact of a sexual nature; (2) the

conduct was unwelcome; and (3) the conduct was sufficiently 

“severe or pervasive” to alter the terms and conditions of the 

plaintiff’s employment, thereby creating an abusive working 

environment. (Beltran v. Hard Rock Hotel Licensing, Inc. (Dec. 5, 

2023, G062736) __ Cal.App.5th __ [2023 Cal.App.Lexis 941]; 

Sheffield v. Los Angeles County (2003) 109 Cal.App.4th 153, 160-

161; Lyle v. Warner Brothers Television Productions (2006) 38 

Cal.4th 264, 283 (Lyle); Hughes v. Pair (2009) 46 Cal.4th 1035, 

1045; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 

121, 130; see also Gov. Code, §§ 12940, subd. (j), 12923.)2

2 Because, as explained below, the resolution of plaintiffs’ 

claims turns on whether the harassment is attributable to the 

employer—and not on whether the harassment itself is

sufficiently “severe or pervasive” to constitute harassment—our 

Legislature’s recent clarification of the standard of what 

constitutes harassment and its general pronouncement that 

“[h]arassment cases are rarely appropriate for disposition on 

summary judgment” is not implicated in this case (Gov. Code, § 

12923, subds. (b) & (e)); we are effectively assuming plaintiffs 

were subjected to unwelcomed conduct of a sexual nature by 
12

Whether the employer has subjected the plaintiff-employee to 

harassment—and thus can be liable for that harassment—

depends on who is doing the harassment: If the harasser is a 

“supervisor,” the employer is strictly liable for any conduct by 

that individual; if the harasser is not a supervisor, the employer 

is liable only if the employer (1) “knew or should have known of 

the harassing conduct,” and (2) “failed to take immediate and 

appropriate corrective action.” (State Dept. of Health Services v. 

Superior Court (2003) 31 Cal.4th 1026, 1040-1041; Chapman v. 

Enos (2004) 116 Cal.App.4th 920, 928; see also Gov. Code, § 

12940, subd. (j)(1).) 

With respect to the second element of “immediate and 

appropriate corrective action,” an employer avoids liability for 

sexual harassment by a nonsupervisory co-employee under FEHA 

by taking “prompt, reasonable and efficacious remedial action” in 

response to an employee’s harassment complaint. (Mathieu v. 

Norrell Corp. (2004) 115 Cal.App.4th 1174, 1185.) “The 

employer’s obligation to take prompt corrective action requires (1) 

that temporary steps be taken to deal with the situation while 

the employer determines whether the complaint is justified and 

(2) that permanent remedial steps be implemented by the 

employer to prevent future harassment once the investigation is 

completed.” (Bradley v. Department of Corrections & 

Rehabilitation (2008) 158 Cal.App.4th 1612, 1630 (Bradley).) 

“The most significant immediate measure an employer can take 

in response to a sexual harassment complaint is to launch a 

prompt investigation to determine whether the complaint is 

Genao that was severe and pervasive, and focus entirely on 

examining whether that harassment is attributable to the 

County.
13

justified.” (Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1193; 

Mathieu, at p. 1185.) To fulfill this function, the investigation 

need not be “perfect”; it is enough that the investigation is a 

“reasonable” one that is neither “rigged to reach a pre-determined 

conclusion” nor “otherwise conducted in bad faith.” (Swenson, at 

pp. 1197, 1193, 1196.) Thus, “when harassment is by a 

nonsupervisory employee, an employer’s liability is predicated 

not on the conduct itself, but on the employer’s response once it 

learns of the conduct.” (Bradley, at p. 1631.) 

Both in their operative complaint and on appeal, plaintiffs 

base their FEHA harassment claim solely on Genao’s conduct. 

Because it is undisputed that Genao is not a supervisor, 

plaintiffs’ FEHA harassment claim against the County turns on 

whether the Department (1) knew or should have known of 

Genao’s conduct, and (2) failed to take “immediate and 

appropriate action” once it learned of that conduct. 

The undisputed facts establish both that (1) the 

Department had no knowledge of Genao’s conduct until plaintiffs 

reported it in June 2020, and (2) the Department thereafter took 

“immediate and appropriate action” in response to plaintiffs’ 

report. With regard to the second point, after plaintiffs reported 

Genao’s conduct to their sergeant, the sergeant reported it to the 

lieutenant, who then referred the complaint to the County Office 

of Equity; while the Office of Equity investigated plaintiffs’ 

report, the Department took steps to immediately halt any 

further harassment by physically separating Genao and plaintiffs 

into different parts of the Courthouse; and once the Office of 

Equity completed its investigation, the Department 

“involuntarily transferred” Genao to a different courthouse, 

thereby eliminating the danger of further harassment by Genao. 
14

In sum, the Department’s response to plaintiffs’ complaints was 

reasonable as a matter of law, and thus precludes liability 

against the County.

Plaintiffs raise several arguments, only four of which speak 

to the Department’s liability for harassment inflicted by a 

nonsupervisory co-employee. 

First, plaintiffs argue that the sergeant was “openly 

antagonistic” toward plaintiffs when they initially reported 

Genao’s misconduct, the sergeant did not take “real notes” during 

the June 2020 meeting, and the lieutenant at one point thereafter

put his finger to his lips to “shush” Redondo. However, any 

factual dispute about whether the sergeant and lieutenant 

engaged in this conduct is not material because it is undisputed 

that, despite any inappropriate behavior that occurred while 

receiving plaintiffs’ report, the two supervisors did alert the 

Office of Equity, which conducted an investigation and took 

disciplinary action against the offender. (Accord, Banks v. 

Dominican College (1995) 35 Cal.App.4th 1545, 1551 (Banks) 

[plaintiff “may not avoid summary judgment by attempting to 

generate disputes of fact as to issues which are not material to 

the legal theories and claims in issue”].) 

Second, plaintiffs argue that their privacy rights were 

violated when the lieutenant called them over the common radio 

channel, directed them to prepare written statements on 

communal computers, and disclosed their complaint to Genao 

despite a County policy to keep reports of misconduct anonymous. 

These facts are not material because plaintiffs fail to draw any 

connection between them and the appropriateness of the 

Department’s corrective action. (Banks, supra, 35 Cal.App.4th at 

p. 1551.) Plaintiffs’ theory that the radio call coupled with their 
15

use of the communal computers revealed to fellow deputies that 

plaintiffs had made a complaint about Genao is based on mere 

speculation; there is no evidence that the radio call referred 

specifically to their complaint of misconduct, no evidence that 

anyone saw or figured out what they were typing on the 

computers, and no evidence that anyone else “connected the dots” 

as plaintiffs now speculate they must have. (Santa Clara Valley 

Water Dist. v. Century Indemnity Co. (2023) 89 Cal.App.5th 1016, 

1035 [party opposing summary judgment may not rely on 

inferences “‘derived from speculation, conjecture, imagination, or 

guesswork’”].) Plaintiffs’ assertion that the County violated its 

own policy by letting Genao know about their report is 

unsupported by any admissible evidence because (1) the trial 

court denied their request to judicially notice the policy, and they 

have not challenged that ruling on appeal; and (2) the only other 

evidence of the policy is their own recollection of the allegedly 

written policy, which is inadmissible hearsay. Indeed, the sole 

admissible evidence is Redondo’s deposition testimony that 

complaints are “usually” not disclosed to the subject; it is 

therefore undisputed that disclosure is sometimes warranted and 

that the disclosure here was made to “defuse” the situation, such 

that there was no violation of plaintiffs’ privacy rights.

Third, plaintiffs argue that the sergeant’s attempts to 

discourage them from pursuing a complaint against Genao 

combined with the lieutenant’s disregard for their privacy 

establish ratification by the County of the harassment. To be 

sure, an employer’s “failure to intervene effectively to prevent or 

end sexual harassment in the workplace by a fellow employee can 

amount to a ratification of the misconduct for which the employer 

may be held liable.” (Birschtein v. New United Motor 
16

Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1007; Thomas v. 

Regents of University of California (Nov. 29, 2023, A164550) __ 

Cal.App.5th __ [2023 Cal.App.Lexis 925].) But here, the sergeant 

and lieutenant did intervene to end the sexual harassment by 

taking corrective action. 

Fourth, plaintiffs argue that the Department’s 

investigation and corrective action was “ineffectual” because 

plaintiffs would sometimes still encounter Genao outside the 

first-floor lockup and because Funes heard him, through a closed 

door, make a sexual noise one additional time after plaintiffs

complained. Neither of these facts is material. The Department 

had “wide discretion in choosing how to minimize contact 

between” plaintiffs and Genao, and while ordering them to stay 

on separate floors of the Courthouse may not have been a perfect 

solution, it was a reasonable one pending the investigation of 

plaintiffs’ report. (Bradley, supra, 158 Cal.App.4th at p. 1630.)

Moreover, plaintiffs do not claim that Genao engaged in any 

harassing conduct when they happened to encounter him; in fact, 

on one occasion when Funes encountered Genao, it was because 

Funes volunteered to assist him with a female inmate. As for 

Funes overhearing Genao’s sexually inappropriate conduct

through a closed door, there is no evidence that Genao directed 

his conduct, though unquestionably distasteful, at any coworker 

who was offended by that conduct. (See Lyle, supra, 38 Cal.4th at 

p. 285 [a plaintiff “must show that the harassment directed at 

others was in her immediate work environment, and that she 

personally witnessed it”]; Yuknis v. First Student, Inc. (7th Cir. 

2007) 481 F.3d 552, 555-556 [“The more remote or indirect the act 

claimed to create a hostile working environment, the more 

attenuated the inference that the worker’s working environment
17

was actually made unbearable . . .”]; Harris v. Forklift Systems, 

Inc. (1993) 510 U.S. 17, 21-22 [requiring the victim to 

“subjectively perceive” the work environment as “objectively 

hostile” to trigger a Title VII violation]; cf. Bradley, at p. 1640 

[reasonableness of employer’s remedial measures “‘will depend on 

its ability to stop harassment by the person who engaged in 

harassment’”].) Nor is there any evidence that Funes lodged 

another complaint about Genao’s conduct.

B. Sex/gender discrimination claim and 

retaliation claims (by all plaintiffs)

To prevail on claims of sex/gender discrimination under 

FEHA, retaliation under FEHA, and whistleblower retaliation 

under Labor Code section 1102.5, a plaintiff must establish—

among other things—that her employer subjected her to an 

adverse employment action. (Guz v. Bechtel National, Inc. (2000) 

24 Cal.4th 317, 355 (Guz) [discrimination]; Gov. Code, § 12940, 

subd. (a) [same]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 

1028, 1042 (Yanowitz) [retaliation under FEHA]; Gov. Code, § 

12940, subd. (h) [same]; Lawson v. PPG Architectural Finishes, 

Inc. (2022) 12 Cal.5th 703, 712 (Lawson) [whistleblower 

retaliation under Labor Code section 1102.5].) An adverse 

employment action is defined as an action by the employer that 

“materially” and “adverse[ly]” “affect[s] the terms and conditions 

of employment.” (Yanowitz, at p. 1036.) Reaching beyond firing, 

demoting, or refusing to promote the employee, adverse 

employment actions also include actions by the employer that are 

“reasonably likely to impair a reasonable employee’s job 

performance or prospects for advancement or promotion.” (Id. at 

pp. 1054-1055; Wysinger v. Automobile Club of Southern 

California (2007) 157 Cal.App.4th 413, 423.) However, those 
18

actions must be material, and materiality is adjudged objectively. 

(Momah v. Dominguez (6th Cir. 2007) 239 Fed.Appx. 114, 123-

124; Yanowitz, at p. 1054 [“objective perspective”]; Holmes v. 

Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 

1063 [“‘objective evidence’”].) Thus, actions by an employer that 

do no more than subjectively “upset” or “‘humiliat[e]’” the 

employee, or are “‘not to [her] liking,’” are not adverse 

employment actions. (Yanowitz, at p. 1054; McRae v. Department 

of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386, 

393 (McRae); Light v. Department of Parks & Recreation (2017) 

14 Cal.App.5th 75, 92.) In addition, there must be a “‘causal 

link’” between the protected activity and the employer’s adverse 

employment action, which often is shown by a temporal 

relationship between the two. (Light, at p. 91.) 

Plaintiffs point to over 20 incidents at their work 

environment at the Courthouse, contending that they constitute 

adverse employment actions that are causally linked to their 

report of Genao.

3 They do not. We group these incidents into 

3 The County asserts that plaintiffs’ laundry list of adverse 

employment actions exceeds the scope of the allegations in their 

operative complaint. We agree that plaintiffs have unfairly 

moved the target, but we nevertheless elect to exercise our 

discretion to address why the entirety of the actions proffered by 

plaintiffs fail to constitute adverse employment actions as a 

matter of law. (Conroy v. Regents of University of California 

(2009) 45 Cal.4th 1244, 1250 [“The materiality of a disputed fact 

is measured by the pleadings [citations], which ‘set the 

boundaries of the issues to be resolved at summary judgment’”]; 

Oakland Raiders v. National Football League (2005) 131 

Cal.App.4th 621, 648 [a “‘plaintiff cannot bring up new, 

unpleaded issues in . . . her opposing papers’”; 

“‘counterdeclarations are no substitute for amended pleadings’”].) 
19

four buckets, each of which we discuss separately: (1) actions 

suffered by all plaintiffs, (2) actions suffered by Funes, (3) actions 

suffered by Redondo, and (4) actions suffered by Khanna. 

1. Actions suffered by all plaintiffs

All plaintiffs claim they suffered three of the same adverse 

employment actions—namely, (1) having to continue to work with 

Genao; (2) being prevented from performing their duties because 

they could not access the first-floor lockup; and (3) being 

“ostracized and shunned” by their fellow deputies when, for 

example, the deputies refused to share an elevator with plaintiffs, 

spoke to them in only “short, snappy replies,” and denied them 

backup.

None of these actions constitute adverse employment 

actions as a matter of law. First, Genao’s conduct after plaintiffs 

made their report cannot be considered an adverse employment

action by their employer because, as explained above, the 

Department took reasonable action to investigate and then 

discipline Genao and plaintiffs did not make the Department 

aware of any further misconduct by Genao; as a result, Genao’s 

conduct is not attributable to the County. Second, the 

Department’s action in telling plaintiffs not to access the first 

floor was not an adverse employment action; it was designed to 

separate plaintiffs from the coworker about whom they 

complained, which is a long-accepted and reasonable step to take 

during the pendency of an investigation. Plaintiffs’ assertion that 

the very action an employer takes to eliminate the danger of 

further harassment pending an investigation simultaneously 

constitutes an adverse employment action puts an employer in an 

impossible, no-win situation. We also reject plaintiffs’ related 

contention that inconsistencies in how the Department described 
20

the separation to them is evidence of pretext, as it is undisputed 

that they were informed that the separation was a direct result of 

their complaint and intended to halt continued harassment 

during the pendency of the investigation. Third, ostracism or a 

pattern of social slights by coworkers does not materially affect 

the terms, conditions, or privileges of employment. (Brooks v. 

City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929 [“Because an 

employer cannot force employees to socialize with one another, 

ostracism suffered at the hands of coworkers cannot constitute an 

adverse employment action”]; Yanowitz, supra, 36 Cal.4th at p. 

1054 [“a pattern of social slights by . . . coemployees” does not 

constitute adverse employment action]; Lyle, supra, 38 Cal.4th at 

p. 295 [“FEHA is ‘not a “civility code”’”].)

2. Actions suffered by Funes

Funes claims she alone suffered three other adverse 

employment actions—namely, (1) experiencing harassment by 

Guerrero, (2) receiving write-ups and other discipline, and (3) 

being transferred to the Pasadena courthouse far from her home.

We conclude, as a matter of law, that none of these constitute 

adverse employment actions causally linked to Funes’s complaint 

about Genao. 

First, the mutual dislike between Guerrero and Funes 

amounts to nothing more than “[m]inor or relatively trivial” 

conduct “that, from an objective perspective, [is] reasonably likely 

to do no more than anger or upset an employee” and, as such, 

“cannot properly be viewed” as an adverse employment action. 

(Yanowitz, supra, 36 Cal.4th at p. 1054; Doe v. Department of 

Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 735 

[FEHA “‘“‘is not a shield against harsh treatment at the 

workplace’”’”]; see also Malais v. Los Angeles City Fire Dept. 
21

(2007) 150 Cal.App.4th 350, 357 [conduct does not constitute an 

adverse employment action simply because it is “‘“contrary to the 

employee’s interests or not to the employee’s liking”’”].) What is 

more, nearly all—if not all—of Guerrero’s conduct cited by Funes 

occurred before plaintiffs engaged in protected activity by 

reporting Genao and therefore cannot serve as an adverse 

employment action in retaliation for that protected activity. 

Second, the undisputed facts establish that the discipline 

Funes received was for legitimate, nonretaliatory reasons. 

(Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 

558-559 [employer moving for summary judgment has burden to 

show that adverse employment action was based on legitimate, 

nonretaliatory factors]; Serri, supra, 226 Cal.App.4th at p. 861 

[“‘“legitimate” reasons [citation] . . . are reasons that are facially

unrelated to prohibited bias, and which, if true, would thus 

preclude a finding of discrimination,’” italics in original].) 

Specifically:

● In October 2020, Funes received a performance log 

entry (PLE)—which is a note, whether positive or negative, that 

is placed in the deputy’s personnel file for one year—because she 

made hurtful comments about Guerrero’s sexual orientation. 

Funes’s challenge to this PLE was denied. 

● In November 2020, Funes received a PLE for failing 

to follow a judge’s specific instructions for uncuffing an inmate. 

Funes’s challenge to this PLE was also denied.

● In January 2022, Funes was suspended for making 

various sexual remarks about a judge, a fellow deputy, and the 

sergeant’s son during the period of January 2020 to May 2020. 
22

● In February 2022, Funes was suspended because she 

had improperly stored an inmate’s backpack in January 2021 

despite orders to “book” the found property. 

Because the County met its burden of showing the 

Department had legitimate, nonretaliatory reasons for Funes’s 

discipline, the burden shifted to Funes to show that those reasons 

were “‘“untrue or pretextual”’” or that the Department acted with 

a retaliatory animus. (Swanson v. Morongo Unified School Dist. 

(2014) 232 Cal.App.4th 954, 965.) Other than her own selfserving declaration stating she did not engage in the conduct 

underlying the PLEs and suspensions, Funes offered no evidence 

challenging the County’s proof. This was insufficient to create a 

triable issue of material fact. (Serri, supra, 226 Cal.App.4th 830 

[plaintiff’s burden not met by mere speculation]; King v. United 

Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [“plaintiff’s 

subjective beliefs” and “uncorroborated and self-serving 

declarations” “do not create a genuine issue of fact”].) 

Third, Funes was transferred to the Pasadena courthouse

sometime after September 2021—over a year after plaintiffs 

reported Genao’s conduct. There is no causal link between that 

protected activity and Funes’s transfer. (Morgan v. Regents of 

University of California (2000) 88 Cal.App.4th 52, 69 [retaliatory 

motive proved by showing that “‘“adverse action followed within a 

relatively short time”’” after protected activity].) 

3. Actions suffered by Redondo

Redondo claims she alone suffered one other adverse 

employment action—namely, being “shushed” by the lieutenant. 

A rude comment—or, for that matter, a rude gesture—is not 

actionable, particularly where the Department was 

simultaneously engaging in reasonable corrective action. 
23

(McRae, supra, 142 Cal.App.4th at pp. 386, 392-393 [the 

workplace is not an “‘“idyllic retreat[]”’”]; Harris v. City of Santa 

Monica (2013) 56 Cal.4th 203, 231 [“stray remarks that are 

unconnected to employment decisionmaking” are unactionable]; 

Horn v. Cushman & Wakefield Western, Inc. (1999) 72 

Cal.App.4th 798, 810 [“‘single, isolated discriminatory comment’ 

by plaintiff’s immediate supervisor was insufficient”].) 

4. Actions suffered by Khanna

Khanna claims she alone suffered three other adverse 

employment actions—namely, (1) the slashing of her tires; (2) 

having the investigation into that incident “sabotaged” by her 

supervisors; and (3) being denied time off to observe the Passover 

holiday (which occurred before plaintiffs engaged in protected 

activity and therefore cannot constitute an adverse employment 

action in retaliation for that protected activity). For the reasons 

discussed in detail below in Subsection I.D., Khanna did not 

suffer an adverse employment action because her theory that the 

Department is to blame for the damage to her vehicle is based on 

mere speculation. (Advent, Inc. v. National Union Fire Ins. Co. of 

Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459 [“‘“Speculation . . . 

is not evidence” that can be utilized in opposing a motion for 

summary judgment’”].) It is also undisputed that the 

Department did not, as Khanna claims, “withh[o]ld” evidence of 

the slashing because the Department presented a complete copy 

of the video of the parking area to Khanna herself. And, 

although Khanna’s vacation time was cancelled due to the 

application of a facially neutral policy, she was able to observe 

the holiday by using sick time (Guz, supra, 24 Cal.4th at p. 354, 

fn. 20 [discrimination may be found where a facially neutral 

policy has a disproportionate adverse effect on members of 
24

protected class]; Angelucci v. Century Supper Club (2007) 41 

Cal.4th 160, 175 [“‘a plaintiff cannot sue for discrimination in the 

abstract, but must actually suffer the discriminatory conduct’”]). 

5. Plaintiffs’ further arguments

Plaintiffs raise two further arguments. 

They argue that we should consider all of the actions

discussed above “collectively,” even if each action is not on its own 

sufficient to constitute an adverse employment action. 

(Yanowitz, supra, 36 Cal.4th at p. 1058.) We disagree. The 

actions cited by plaintiffs are unlike those found to have a 

cumulative effect in Yanowitz, which were compiled to build a 

case against that employee to “place[] her career in jeopardy.” 

(Yanowitz, at p. 1060.) Here, however, plaintiffs presented no 

evidence or argument for why any of the actions discussed above 

cumulatively affected the terms and conditions of their 

employment. Although the question of whether an employer’s 

conduct constitutes an adverse employment action is generally a 

factual one (id. at p. 1052), this case presents a situation in which 

we can conclude, as a matter of law, that the conduct is 

insufficient—separately or collectively—to amount to an adverse 

employment action. (See St. Myers v. Dignity Health (2019) 44 

Cal.App.5th 301, 318-319 [summary judgment affirmed where 

plaintiff “failed to provide admissible evidence to create a triable 

issue of fact” to show adverse employment action].) 

Plaintiffs also argue that the trial court was required to 

deny summary adjudication of their whistleblowing retaliation 

claim under Labor Code section 1102.5 because the County did 

not invoke the proper burden-shifting standard set forth in 

Lawson, supra, 12 Cal.5th 703. The burden-shifting standard in 
25

Lawson is irrelevant to our conclusion that plaintiffs suffered no 

adverse employment action. 

C. Khanna’s separate claims

1. Religious creed discrimination

To prevail on a claim of religious creed discrimination 

under FEHA as alleged by Khanna, a plaintiff must establish her 

employer (1) “discriminate[d]” against her “in terms, conditions, 

or privileges of employment”; (2) due to “a conflict between [her] 

religious . . . observance and any employment requirement.” 

(Gov. Code, § 12940, subd. (l)(1).) However, there is no FEHA 

liability if the employer “demonstrates that it has explored any 

available reasonable alternative means of accommodating the 

religious . . . observance . . . , but is unable to reasonably 

accommodate the . . . observance without undue hardship.” 

(Ibid.) For these purposes, “undue hardship” means “significant 

difficulty or expense” “in light of” several factors, including “[t]he 

type of operations, including the composition, structure, and 

functions of the workforce of the entity.” (Gov. Code, § 12926, 

subd. (u).)

The undisputed facts establish that the Department had 

historically granted Khanna’s requests for time off for the Jewish 

High Holidays, including Passover; that the Department initially 

granted her request for two dates in April 2020 to observe 

Passover; that the Department later denied her request after the 

issuance of a Department-wide edict cancelling all vacation time 

through April 30, 2020 due to the need for deputies to be 

available to assist if necessary given the historical uncertainty 

about what to do in response to the outbreak of COVID-19 in 

March 2020; and that Khanna’s supervisors nevertheless allowed 

Khanna to take the days off, albeit using her sick time.
26

On these undisputed facts, Khanna’s religious 

discrimination claim fails for two reasons. First, the Department 

showed that it did reasonably accommodate Khanna’s request by 

allowing her to take time off for her religious observance. 

Khanna counters that she had to “fight” to achieve that 

accommodation, but the evidence of her meeting with supervisors 

to receive the days off despite the Department-wide edict reveal 

no discriminatory animus. Khanna also counters that having to 

use her sick time (rather than her vacation time) was somehow 

an unreasonable accommodation by depriving her of the two days 

of sick time in case she needed it, but she did not introduce any 

evidence to show that the types of time off were not equivalent. 

Second, and even if we assume that the Department’s 

accommodation was unreasonable, the Department also 

established that it would suffer undue hardship by allowing 

Khanna to take vacation time because the Department would 

face “significant difficulty” discharging its primary function of 

ensuring public safety if, during the uncertainty surrounding the 

unprecedented outbreak of COVID-19, it did not have “all hands 

on deck” to respond to any emergencies. 

Khanna’s chief response is that the Department did not 

apply its Department-wide edict consistently because it allowed a 

different deputy with a nonrefundable vacation to go on his 

booked vacation during the “no vacation” window. This does not 

create a triable issue of material fact because there is no evidence 

that the Department’s accommodation to that deputy was any 

different from the accommodation it offered to Khanna—namely, 

the opportunity to use sick time in lieu of vacation time. Absent 

such evidence, there is no differential treatment and no 

discrimination.
27

2. The Bane Act and the Ralph Act

The Bane Act prohibits a person from “interfer[ing] by 

threat, intimidation, or coercion . . . with [the plaintiff’s] exercise 

or enjoyment . . . of [her constitutional] rights” with the “specific 

intent to violate [her civil] rights.” (Civ. Code, § 52.1; Schmid v. 

City and County of San Francisco (2021) 60 Cal.App.5th 470, 483; 

Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 

1290 (Gabrielle A.).) The Ralph Act prohibits a person from 

threatening or committing violent acts against the plaintiff or her 

property with a discriminatory motive. (Civ. Code, § 51.7; 

Gabrielle A., at p. 1291; Austin B. v. Escondido Union School 

Dist. (2007) 149 Cal.App.4th 860, 880-881.) As these elements 

suggest, a plaintiff can prevail on either claim only if she 

establishes that the defendant—here, the County—engaged in a 

threatening or violent act. 

The undisputed facts do not create a triable issue that

anyone employed by the County was responsible for slashing 

Khanna’s tire, which is the sole basis for her Bane and Ralph Act 

claims. Khanna’s sole “evidence” that the County is liable is her 

belief that Guerrero was the culprit because the incident occurred 

shortly after plaintiffs reported Guerrero’s “friend” Genao and

her belief that her supervisors sabotaged the investigation into 

the incident, but she offers no admissible evidence other than her 

own speculation to support that belief. Because “‘[s]peculation . . 

. is not evidence,’” it “cannot create a triable issue of material 

fact.” (McHenry v. Asylum Entertainment Delaware, LLC (2020) 

46 Cal.App.5th 469, 479; Gabrielle A., supra, 10 Cal.App.5th at p. 

1291 [declining to “substitute speculation for evidence” on Ralph 

Act claim].) Indeed, there is not even any admissible evidence 

that Khanna’s tire was slashed (as opposed to becoming flat), as 
28

the sole evidence she offered of slashing was the opinion a 

“workman” at the tire shop relayed through her husband, and 

Khanna does not on appeal challenge the trial court’s proper 

exclusion of this double hearsay.

D. Derivative claim for failure to prevent 

harassment, discrimination, or retaliation

An employer cannot be liable for failing to prevent 

harassment, discrimination, or retaliation under FEHA absent a 

finding that such an actionable unlawful employment practice 

actually occurred. (Dickson v. Burke Williams, Inc. (2015) 234 

Cal.App.4th 1307, 1317-1318.) Because we affirm the judgment 

in favor of the County on plaintiffs’ underlying causes of action 

for harassment, discrimination, and retaliation, we must affirm 

the judgment on their cause of action for failure to prevent 

harassment, discrimination, or retaliation. 

II. Ruling on Attorney Fees 

A. Applicable law 

Attorney fees are allowable as costs to a prevailing party 

when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5, 

subd. (a)(10)(B).) FEHA authorizes an award of reasonable 

attorney fees to an employer who prevails in a FEHA action, but 

only if the trial court finds that “the [plaintiff-employee’s] action 

was frivolous, unreasonable, or groundless when brought, or the 

plaintiff continued to litigate after it clearly became so.” (Gov. 

Code, § 12965, subd. (c)(6); Chavez v. City of Los Angeles (2010) 

47 Cal.4th 970, 985.) “An action is not frivolous simply because 

the plaintiff[s’] FEHA claim failed.” (Baker v. Mulholland 

Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784.) But an 

action may “rise to the level of frivolity required to support” an 

award of fees to an employer-defendant if, for example, the 
29

plaintiff failed altogether to “present[] a colorable claim.” 

(Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & 

Shapiro (2001) 91 Cal.App.4th 859, 870, 873-874 (Rosenman).) 

We review a trial court’s award of attorney fees to an 

employer who prevailed in a FEHA action for an abuse of 

discretion. (Cummings v. Benco Building Services (1992) 11 

Cal.App.4th 1383, 1387 (Cummings); Williams v. Chino Valley 

Independent Fire Dist. (2015) 61 Cal.4th 97, 101-102.) 

B. Pertinent facts

In support of its motion for attorney fees, the County 

submitted evidence—for the first time—of plaintiffs sending text 

messages in February and March 2020 (and thus after some of 

the harassment had started in January 2020) to fellow deputies 

of a sexual and racially insensitive nature. For example, Khanna 

sent a picture of a piece of meat at Walmart captioned “a cow 

dick”; Funes sent an image of a woman riding a toy horse and 

explained, “[T]his is going to be me in a few,” with Khanna 

responding, “[R]ide that verga girl,” which she translated as 

“[S]panish slang” for penis; and Khanna sent a picture mocking 

the appearance of an Asian person. Plaintiffs did not contest any 

of this evidence in opposing the attorney fees motion, and instead 

argued that their lawsuit was not frivolous “‘merely [because 

they] failed to achieve success’” on summary judgment.

The trial court awarded the County $28,215 in fees, 

concluding that “plaintiffs’ case was objectively without 

foundation when brought” or, alternatively, plaintiffs “knew or 

should have known they had no admissible evidence in 

opposition” to the summary judgment motion. The court 

explained that “plaintiffs had no evidence of adverse employment 

actions or retaliation,” that Khanna “had no admissible evidence 
30

about her alleged tire-slashing incident,” and that Khanna “had 

no evidence supporting a claim of religious discrimination.” The 

court went on to observe that, “[i]nstead of being sexually 

harassed,” “plaintiffs engaged in vulgar and sexualized comments 

with their alleged harassers.” 

C. Analysis

The trial court did not abuse its discretion in concluding 

that plaintiffs’ claims were “frivolous, unreasonable, or 

groundless” for purposes of awarding the County its requested 

fees. As discussed in detail above, the record on summary 

judgment showed a complete lack of factual support for at least 

one required element of each of plaintiffs’ claims. (E.g., 

Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1200 

[fees appropriate where no evidence of discrimination]; see also 

Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73 

(Robert) [fees appropriate where no evidence except plaintiff’s 

opinion].) To be sure, plaintiffs presented a plethora of evidence

bearing on the harassment by Genao that they endured in 

support of their harassment claim, but they lacked evidence 

raising any dispute of material fact on the separate element 

showing that the County was legally responsible for Genao’s 

conduct under FEHA due to its failure to take corrective action 

once notified of that conduct. Plaintiffs lacked evidence raising 

any dispute of material fact on the element of whether they 

suffered any adverse employment action, which was an essential 

element of their discrimination and retaliation claims. And 

Khanna lacked evidence raising any dispute of material fact on 

the elements of whether her religious observation was reasonably 

accommodated and whether the County had any causal 

responsibility for Khanna’s tire damage. Importantly, the trial 
31

court limited its award of fees to those incurred by the County in 

litigating its summary judgment motion—that is, after discovery 

had closed and it became obvious that the evidence supporting 

these elements was completely lacking. Just because a plaintiff 

may raise a triable issue of fact as to some elements of a claim 

does not immunize that plaintiff from a finding that the claim is 

frivolous where, as here, the plaintiff has failed to adduce any 

evidence as to other elements of that claim and that claim 

therefore fails as a matter of law. 

Plaintiffs resist our conclusion with three arguments. 

First, they argue that they presented “voluminous evidence at 

summary judgment.” But quantity is not a substitute for quality, 

and the quality of evidence they presented did not raise any 

triable issues of material fact because, as noted above, at least 

one key element of every claim was entirely absent. (Cf.

Cummings, supra, 11 Cal.App.4th at p. 1388 [reversing fee award 

for defendant because plaintiff had “presented some evidence of 

age discrimination”].) Second, plaintiffs argue that the trial court 

“essentially found” that their case “lacked merit” rather than that 

it was “frivolous.” They are incorrect; the court expressly found 

that plaintiffs had “no evidence” supporting the necessary 

elements detailed above and it therefore “was improper” for them 

to “continue” to engage in “very heavy litigation” of the case. 

(See, e.g., Bass v. E.I. DuPont de Nemours & Co. (4th Cir. 2003) 

324 F.3d 761, 767 [plaintiff’s discrimination claims “lacked any 

foundation in the record apart from her own conclusory 

assertions”].) Third and lastly, plaintiffs argue that the trial 

court failed to make “express written findings” on the factors in 

Christiansburg Garment Co. v. Equal Employment Opportunity 

Commission (1978) 434 U.S. 412, and Cummings, supra, 11 
32

Cal.App.4th 1383. (See Rosenman, supra, 91 Cal.App.4th at p. 

868.) We reject this argument because (1) plaintiffs forfeited it by 

waiting until their reply brief to raise it (Gallo v. Wood Ranch 

USA, Inc. (2022) 81 Cal.App.5th 621, 646); (2) plaintiffs fail to 

argue that the purported lack of findings caused them any 

prejudice (Robert, supra, 224 Cal.App.4th at pp. 71-72); and (3) 

the court’s written ruling here sufficiently complies with the 

requirement of written findings.

DISPOSITION

The judgment and attorney fee order for the County are 

affirmed. The County is entitled to its costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ