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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FRANKLIN E. DAVIS,

Plaintiff,

v.

PHILLIPS 66,

Defendant.

Case No. 17-cv-00128-JST 

ORDER DENYING MOTION FOR 

ATTORNEYS' FEES

Re: ECF No. 177

Before the Court is Plaintiff Franklin E. Davis’s motion for costs and attorneys’ fees. ECF 

No. 177. For the reasons discussed below, the Court will deny the motion.1

I. BACKGROUND

Davis filed this action against Defendant Phillips 66 Company alleging the following 

claims: Count One - Disability Discrimination (Americans with Disabilities Act (“ADA”)); Count 

Two - Disability Discrimination (state law); Count Three - Failure to Reasonably Accommodate 

(state law); Count Four – Failure to Engage in the Interactive Process (state law); Count Five –

Harassment (state law); Count Six – Retaliation (ADA); Count Seven – Retaliation (state law); 

and Count Eight – Failure to Prevent Retaliation (state law). ECF No. 1. The Court dismissed 

Counts One through Five on summary judgment prior to trial. ECF Nos. 39, 109. Counts Seven

and Eight were tried to a jury, which returned a verdict in Phillips 66’s favor. ECF No. 153. 

Count Six, an equitable claim, was tried to the Court, and decided in Phillips 66’s favor. ECF No. 

172. Davis moves for costs and attorneys’ fees on the grounds that the jury found that Davis’s 

 

1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds 

this matter suitable for disposition without oral argument, and hereby vacates the hearing

scheduled for October 25, 2018. 
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opposition to not being given a reasonable accommodation was a substantial motivating reason for 

Phillips 66’s discharge of Davis. ECF No. 153 at 1 (Question No. 3).

II. LEGAL STANDARD 

The “[c]alculation of attorney’s fee awards in cases brought under state law is a substantive 

matter to which state law applies.” Rodriguez v. County of Los Angeles, 891 F.3d 776, 809 (9th 

Cir. 2018). California Government Code Section 12965(b) provides that for actions brought under 

the Fair Employment and Housing Act (“FEHA”), “the court, in its discretion, may award to the 

prevailing party . . . reasonable attorney’s fees and costs.” Whether a party has prevailed is 

determined “on a practical level . . . by analyzing the extent to which each party has realized its 

litigation objectives.” Bustos v. Glob. P.E.T., Inc., 19 Cal. App. 5th 558, 562-63 (2017) (internal 

citations omitted). The decision to award attorneys’ fees “may take into account the scale of the 

plaintiff’s success, and it must not encourage ‘unnecessary litigation of claims that serve no public 

purpose either because they have no broad public impact or because they are factually or legally 

weak.’” Harris v. City of Santa Monica, 56 Cal. 4th 203, 235 (2013) (quoting Weeks v. Baker & 

McKenzie, 63 Cal. App. 4th 1128, 1173 (1998)).

One of the purposes of the FEHA is “to provide effective remedies that will . . . prevent 

and deter unlawful employment practices.” Harris, 56 Cal. 4th at 225 (quoting Cal. Gov. Code 

§ 12920.5). Therefore, “a same-decision showing by an employer is not a complete defense to 

liability when the plaintiff has proven that discrimination on the basis of a protected characteristic 

was a substantial factor motivating the adverse employment action.” Id. Because one of the 

purposes of the FEHA is to “benefit . . . the public at large,” a plaintiff may be eligible for 

“reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or 

deterring . . . discrimination.” Id. at 230, 235.

Like the FEHA, the ADA contains a fee-shifting provision, which provides that “the court . 

. . , in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee.” 42 U.S.C. 

§ 12205. The Supreme Court has interpreted the ADA’s definition of “prevailing party” to mean

“one who has been awarded some relief by the court.” Buckhannon Bd. & Care Home, Inc. v. W. 
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Va. Dep’t of Health & Human Res., 532 U.S. 598, 628 (2001). In other words, a prevailing 

plaintiff must achieve a “judicially sanctioned change in the legal relationship of the parties.” Id. 

at 605. The requisite change in the parties’ legal relationship occurs when a “plaintiff becomes 

entitled to enforce a judgment, consent decree, or settlement against the defendant.” Barrios v. 

Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002) (quoting Fischer v. SJB-P.D. Inc., 

214 F.3d 1115, 1118 (9th Cir. 2000)). 

III. DISCUSSION

A. State Law Claims

Davis argues that he is entitled to recover fees under Section 12965(b), pursuant to Harris, 

56 Cal. 4th 203. ECF No. 177 at 2-3.

In Bustos, the California Court of Appeal “emphasize[d] that Harris does not require the 

trial court to award attorney fees to any [FEHA] plaintiff who proves discrimination was a 

substantial motivating factor of an adverse employment decision.” 19 Cal. App. 5th at 564. 

Accordingly, a court does not abuse its discretion by declining to award fees under Section 

12965(b) where “a jury found that [the plaintiff’s] physical condition or perceived physical 

condition was ‘a substantial motivating reason’ for his termination, but nevertheless returned 

defense verdicts on each of his claims.” Id. at 561. “It is not beyond reason to conclude that a 

plaintiff who obtains no relief at trial – either monetary or equitable – has not ‘realized [his] 

litigation objectives,’ regardless of whether one or more preliminary questions on a special verdict 

form were answered in his favor.” Id. at 564 (quoting Castro v. Superior Court, 116 Cal. App. 4th 

1010, 1023 (2004)). 

Here, Davis’s sole argument for why the Court should exercise discretion to award fees is 

that the jury made an intermediate finding that Davis’s opposition to not being given a reasonable 

accommodation was a substantial motivating reason for Phillips 66’s discharge of Davis. ECF 

No. 153 at 1 (Question No. 3). Although the jury ultimately found that Phillips 66 would have 

reached the same decision absent any such retaliatory motivation,

2 Davis reasons that the jury’s 

 

2 The jury concluded that, regardless of any retaliatory motivations, Phillips 66 would have 

discharged Davis for “his misrepresentation and distortion of the information related to his sick leave 
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intermediate finding necessarily demonstrates that his claim had merit and served a public purpose of 

deterring discrimination. ECF No. 184 at 4. 

Having considered the circumstances of this case, the Court declines to exercise its 

discretion to award attorneys’ fees. Davis has offered no rationale to differentiate his case from 

any other case in which a FEHA plaintiff loses on a same-decision defense. His argument 

therefore amounts to a requirement that the trial court award fees in this situation, which Bustos

rejected. 19 Cal. App. 5th at 563. Davis has provided no evidence, for example, that his case was 

“indicative of a recurrent policy or practice” of discrimination at Phillips 66. Harris, 56 Cal. 4th 

at 230. Moreover, the Court notes the close relationship between Davis’s protected activity in 

asking for an accommodation and Davis’s own misconduct in “provid[ing] selective and 

incomplete medical information to his medical care providers for the purpose, not of receiving 

adequate medical care, but of ensuring that they would recommend [Phillips 66] restrict him from 

those job duties he no longer wanted to perform.” ECF No. 172 at 4-5.; cf. Sheppard v. Riverview 

Nursing Ctr., Inc., 88 F.3d 1332, 1336 (4th Cir. 1996) (“Some mixed-motive cases will evidence a 

widespread or intolerable animus on the part of a defendant; others will illustrate primarily the 

plaintiff’s unacceptable conduct which, by definition, will have justified the action taken by the 

defendant.”).

B. Federal Law Claim

Davis’s motion for costs and fees did not cite any federal authority and did not indicate 

that Davis was seeking fees based on his federal ADA claim. It is unclear whether Davis’s 

discussion of federal authority in his reply brief is intended to request fees under 42 U.S.C. 

§ 12205. See ECF No. 184 at 2-3. Ordinarily, the Court does not entertain arguments made for 

the first time on reply. See, e.g., TPK Touch Solutions, Inc. v. Wintek Electro-Optics Corp., No. 

13-CV-02218-JST, 2013 WL 5228101, at *4 (N.D. Cal. Sept. 17, 2013) (“The Court does not 

consider new facts or argument made for the first time in a reply brief.”) (citing Ass’n of Irritated 

Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006)).

 

and his refusal to explain the circumstances related to his absence.” ECF No. 153 at 2 (Question Nos. 

4, 5).
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Even were the Court to consider this newly raised argument, however, Davis is not a 

prevailing party eligible for attorneys’ fees under the ADA. The Court decided Davis’s ADA 

claim on the merits in Phillips 66’s favor and granted Davis no relief. ECF No. 172. Accordingly, 

Davis did not obtain a “judicially sanctioned change in the legal relationship of the parties.” 

Buckhannon, 532 U.S. at 605. 3

CONCLUSION

Davis’s motion for costs and attorneys’ fees is hereby denied.

IT IS SO ORDERED.

Dated: October 10, 2018

______________________________________

JON S. TIGAR

United States District Judge

 

3

In contrast to the ADA, Title VII contains a fee-shifting provision, 42 U.S.C. § 2000e-5(g)(2)(B), 

that expressly authorizes a plaintiff to recover fees where a defendant prevails on a mixed-motive 

defense. See Shaw v. City of Sacramento, 250 F.3d 1289, 1294 (9th Cir. 2001). Davis’s reliance 

on cases involving Title VII claims, see Norris v. Sysco Corp., 191 F.3d 1043, 1051 (9th Cir. 

1999), is therefore misplaced.