Tuesday, May 5, 2015
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S.C. Bars Cost Awards to FEHA Defendants in Non-Frivolous Suits
By KENNETH OFGANG, Staff Writer
A defendant who prevails against a Fair Employment and Housing Act claim cannot be awarded court costs or attorney fees unless the plaintiff brought a frivolous action or continued to litigate after it became clear there was no objective merit to the claim, the state Supreme Court unanimously ruled yesterday.
The justices said that FEHA’s cost provision, which states that in actions brought under the statute, “the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees,” takes precedence over the general statute that grants a prevailing party costs as a matter of right.
“By making a cost award discretionary rather than mandatory, Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party,” Justice Kathryn M. Werdegar wrote for the court.
The court reversed a ruling by the Fourth District Court of Appeal, Div. Two, which held that the Chino Valley Independent Fire District was entitled to a cost award after prevailing in litigation with a firefighter who had accused it of disability bias.
Summary Judgment Granted
San Bernardino Superior Court Judge Janet Frangie granted the district summary judgment and ordered the plaintiff, Loring Williams, to pay more than $5,300 in court costs. The Court of Appeal affirmed, but the high court remanded yesterday so that the trial judge may consider whether the action was “frivolous, unreasonable or groundless.”
Werdegar cited Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, in which the high court held that the fee-shifting provision of Title VII of the Civil Rights Act of 1964, while permitting an award of attorney fees to any prevailing plaintiff, does not permit an award to a defendant unless the action was frivolous.
Lower federal courts, the justice acknowledged, have not applied the “asymmetric rule” of Christiansburg to awards of ordinary costs in Title VII cases. But the Ninth Circuit has done so in Americans with Disabilities Act cases, Werdegar noted.
California Court of Appeal decisions, the jurist went on to say, have applied the Christiansburg rule to attorney fee awards, but not to costs, in FEHA cases. But the parallels between FEHA and the ADA justify following the Ninth Circuit approach, Werdegar concluded.
“[B]oth the ADA and FEHA expressly extend the court’s discretion to fees and costs, not merely fees as part of the costs,” the jurist explained. “As the relevant language of Government Code section 12965(b) follows the ADA more closely than it does Title VII, federal decisions on the former are more persuasive than those on the latter in resolving the issue at hand.”
Legislative History
Werdegar went on to cite FEHA legislative history, including a committee report explaining that the legislation had, as one of its purposes, “to encourage persons injured by discrimination to seek judicial relief.” That purpose would be frustrated, the justice said, if a plaintiff has to bear the risk of a cost award, which may be in the tens of thousands of dollars, especially because FEHA plaintiffs are most commonly people who have lost their jobs.
Rejecting the defense argument that §1032(b) serves an equally important public policy objective by relieving prevailing defendants of at least some of the financial burden of litigating, the justice acknowledged that policy, but wrote:
“By its terms, however, Code of Civil Procedure section 1032(b) was intended to relieve successful litigants of their costs only where no statute expressly provides otherwise….Government Code section 12965(b) established such an express exception from Code of Civil Procedure section 1032(b)’s mandate for the award of costs. In FEHA cases, therefore, the trial court enjoys discretion under Government Code section 12965(b); our rule for costs awards to prevailing FEHA defendants must reflect the legislative intent as to how that discretion is to be bounded.”
Arguing Attorneys
The case was argued in the Supreme Court by David M. deRubertis of The deRubertis Law Firm in Studio City for the plaintiff; Judith S. Islas of Liebert Cassidy Whitmore in Century City for the defendant; and Kira L. Klatchko of Best Best & Krieger in Indian Wells for the League of California Cities, California Association of Counties, California Special Districts Association, California Association of Sanitation Agencies, Fire Districts Association of California and Association of California Water Agencies as amici in support of the defendant.
The case is Williams v. Chino Valley Independent Fire District, 15 S.O.S. 2177.
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