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Moreno v. County of San Joaquin2/4/2002
117 F.3d at p. 352.)
In the present case, Moreno's profanity, hostility, and insubordination raised considerable, justifiable concern among his supervisors. During the phone call incident, Moreno's supervisor was concerned enough by their conversations to call the police. In the parking lot incident, Moreno used profanity in response to his supervisor's request to move his car. And, in the intake incident, Moreno again swore at his supervisor's request to begin working. If the plaintiff in Palmer, a person with a proven disability, was not a qualified employee under the ADA, Moreno is not a qualified employee.
V. Statute of Limitations
Moreno argues the statute of limitations does not bar his claim for infliction of emotional distress. He asserts he had one year from the date he received his right to sue notice to file a complaint under the FEHA because his claim for infliction of emotional distress is a result of the County's discrimination. We first note that the trial court did not find Moreno's claim for infliction of emotional distress was time-barred. Furthermore, since we conclude the trial court properly found the evidence does not support a cause of action for discrimination and, as a result, does not support a claim for emotional distress caused by discrimination, we need not consider whether the emotional distress cause of action was time barred.
VI. Attorney Fees
Moreno asserts error in the trial court's order awarding attorney fees and costs to the County. This contention is without merit.
The County is entitled to recover its reasonable attorney fees from Moreno pursuant to Code of Civil Procedure section 1038. Section 1038 applies to civil proceedings under the California Tort Claims Act by "provid public entities with a protective remedy for defending against unmeritorious litigation . . . ." (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1247.) Code of Civil Procedure section 1038 authorizes an order of defense costs, including attorney fees, where specified procedural requirements are not met and the trial court determines the plaintiff brought the action either: (1) without "reasonable cause" or (2) without "the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . ." (Code Civ. Proc., ยง 1038, subds. (a) & (b).) Merely prevailing on a summary judgment motion, however, is not sufficient to justify an award of attorney fees under Code of Civil Procedure section 1038. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.)
Moreno relies on the same five factual allegations used to support his first two issues on appeal to argue the County is not entitled to attorney fees. He claims these facts prove he acted in good faith in bringing this action and had reasonable cause the action was tenable.
Good faith, or its absence, involves a factual inquiry into the plaintiff's subjective state of mind. (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932.) A subjective state of mind will rarely be susceptible of direct proof. Usually the trial court is required to infer it from circumstantial evidence. The question on appeal is whether the evidence of record was sufficient to sustain the trial court's finding. (Ibid.)
The circumstantial evidence supports the trial court's conclusion Moreno did not act in good faith in bringing this action. We have previously found Moreno's five factual allegations do not establish a claim of wrongful termination. Furthermore, Moreno has admitted to and therefore was aware of the three incidents of misconduct resulting in his termination. The
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