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4663 REVIEW DENIED In ruling on a motion for summary judgment in an action under the Fair Employment and Housing Act (FEHA) for employment discrimination, following exclusion of plaintiff's declaration because it was inconsistent with prior deposition testimony in which he stated that he never heard his supervisor make discriminatory statements, the absence of any admissible evidence of racial discrimination justified granting summary judgment for defendant, and the conclusion that plaintiff's action was frivolous resulting in the award of attorney fees to the prevailing employer; although ordinarily a trial court awarding fees to a prevailing employer in an employee's action under FEHA should consider the employee's ability to pay, the court need not do so if the plaintiff fails to offer evidence of his/her employee's inability to pay.CitationVILLANUEVA v CITY OF COLTON (Frivolous FEHA Action) 160 CA4 1188 [See: GovC 12940 etseq; Cummings v Benco 11 CA4 1383, T/AT 3/93; Guthrey v State 63 CA4 1108, T/AT 6/98]
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