Tuesday, May 19, 2015

Three-and-a-Half Years of Appellate Litigation over a $5,368.88 Cost Award

Williams v. Chino Valley Ind. Fire Dist., No S213100 (Cal. May 4, 2015)

Appellate litigation in California can be a long game. The complaint in this case was filed in February 2008. The trial court order at issue—an award of $5,368.88 in costs to a prevailing defendant in a FEHA case—was entered on November 19, 2011. I wrote about this case in the third post on this blog, way back in the summer of 2013. The Supreme Court granted review that fall. And now nineteen months and 350-ish posts later, the court reverses the court of appeal.

The question remains the same: Under what standard can costs be awarded to a prevailing defendant in the FEHA case? Is it the ordinary cost statute’s award as a matter of right? See Cal. Code Civ. Proc. § 1032. Or is it FEHA’s own cost and fee provision, which affords the court discretion to award costs and fees to the prevailing party. See Cal. Gov’t Code § 12965(b). The latter is expressed in what’s called the Christiansburg standard—developed in the attorneys’ fee context—which says that notwithstanding the text of the rule, a discretionary award can be made to a prevailing defendant only when the plaintiff’s claim was frivolous, unreasonable, or groundless. The court of appeal thought that the regular cost rule applied. But after canvassing the state and federal case law, the unanimous Supreme Court disagrees.

On its face § 1032 applies “[e]xcept as otherwise expressly provided by statute.” Since § 12965(b) provides for a discretionary cost award instead § 1032’s mandatory one, the inconsistency creates just such an exception. 

And because § 12965(b) applies, the Christiansburg standard applies to a cost award. Cases interpreting federal employment statutes with cost-shifting language substantially identical to § 12965(b)—most notably the Americans with Disabilities Act—have applied Christiansburg to cost awards. That result is also consistent with the FEHAs legislative history. Thus, the trial court erred by awarding costs without having found that the litigation was objectively baseless, i.e., frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.


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