A Cost, Is a Cost, Is a Cost ...

Williams v. Chino Valley Independent Fire District, No E055755 (D4d2 July 23, 2012) 

Plaintiff lost a Fair Employment and Housing Act case and the trial court awarded costs under Code of Civil Procedure § 1032(b). On appeal, Plaintiff argued that costs could be awarded to a prevailing FEHA defendant only if the defendant satisfied the standard necessary to recover its attorneys fees under FEHA, i.e., that plaintiffs’ case was “frivolous, unreasonable, or without foundation.” The court of appeal rejected the argument and upheld the fee award.

The standard for awarding defense-side attorneys’ fees in employment discrimination cases is known as the Christiansburg standard, after a U.S. Supreme Court case that held that Title VII of the Civil Rights Act of 1964 imposed a higher standard for awarding fees to a prevailing defendant than to prevailing plaintiffs.  See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978). Under Christiansburg, a prevailing Title VII defendant is entitled to a fee award only when the plaintiff’s case is “frivolous, unreasonable, or without foundation.” Id. Various cases—both state and federal—have adopted the Christainsburg standard to defense attorney fee awards under other employment discrimination statutes. The question before the court, however, was whether the standard applied to an award of ordinary costs under Code of Civil Procedure § 1032(b), which are required to be awarded to a prevailing party unless “otherwise expressly provided by statute.

After extensively canvassing the state and federal authority on the issue, the court declined to follow with a prior Court of Appeal case, Cummings v. Benco Building Services, 11 Cal. App. 4th 1383 (1992), which applied the Christiansburg standard an award of defense costs in a FEHA case because Government Code § 12965—the FEHA fee provision—referrs to both costs and fees.  The court instead followed other precedent—a line of cases starting with Perez v. County of Santa Clara, 111 Cal. App. 4th 671 (2003)—which specifically hold that the FEHA’s provisions regarding the shifting of attorneys’ and expert witness fees do not create an exception under Code of Civil Procedure § 1032(b), the “ordinary costs statute.”  The court further declined to follow federal precedent applying the Christiansburg standards to awards of defense costs in cases under the Americans with Disabilities Act due to textual differences in the federal statute.  The court concluded that FEHA did not create an express exception for defense costs and thus that the issue was governed by Code of Civil Procedure § 1032(b)’s mandatory award of costs to a prevailing party, and not by the higher Christiansburg standard.

Affirmed.