Statute Solving Split Is a Clarification, Not a Change

Scott v. City of San Diego, No. D074061 (D4d1 Aug. 1, 2019)

While this appeal was pending, the Legislature amended the FEHA’s costs provision to make clear that costs could not be awarded against a plaintiff who brings a non-frivolous claim, even when that plaintiff fails to beat a Code of Civil Procedure § 998 offer. The Court of Appeal here holds that the amendment was a clarification, not a change, in the law, such that the standard could be applied to pre-amendment claims. At the time the fees were awarded, there was a split of authority in the Court of Appeal interpreting the pre-amendment statute. Plus, the legislative history of the bill contained strong statements of intent to clarify, not change, the law. That was enough to get the court here comfortable with applying the “clarified” standard to the cost award in this case.

Reversed.