Judge: Christopher K. Lui, Case: BC668635, Date: 2023-08-10 Tentative Ruling

Case Number: BC668635    Hearing Date: August 24, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that he was terminated in retaliation for taking disability leave, for making complaints to Defendants regarding their violations of the Living Wage Ordinance, and for filing a claim with the Equal Employment Opportunity Commission, and also discriminated against on the basis of Plaintiff’s age and national origin.

            The Court granted Defendant’s motion for nonsuit and entered judgment partially in favor of Defendant and partially in favor of Plaintiff.

            Defendant Allied Protection Services, Inc. moves for an award of attorney’s fees.

TENTATIVE RULING

            Defendant Allied Protection Services, Inc.’s motion for attorney’s fees and costs is DENIED.

Motion For Attorney’s Fees

            Defendant Allied Protection Services, Inc. moves for an award of attorney’s fees, including those incurred on appeal, of $174,588.36, and costs of $17,265.29 given that Defendant’s Civ. Proc. Code, § 998 $150,000 offer to Plaintiff and that Plaintiff did not obtain a more favorable judgment than that offered by defendant.

The FEHA attorney’s fees and costs provision provides:

(6) In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.

     (Gov. Code § 12965(c)(6)[bold emphasis added].)

It is well settled that a prevailing defendant in a FEHA action “may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith. [Citation.]” (Citations omitted.) “[T]he strong equitable considerations supporting an attorney fee award to a prevailing plaintiff—including that fees are being awarded against a violator of federal law, and that the federal policy being vindicated by the plaintiff is of the highest  [*783]  priority—are not present in the case of a prevailing defendant.” (Citation omitted.)

(Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal App.4th 776, 782-83.)

            Civ. Proc. Code, § 998(c)(1) provides:

(c)

(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.

     (Civ. Proc. Code § 998(c)(1).)

            Regarding the application of § 998 in the context of attorney’s fees and costs against a FEHA Plaintiff, the Second District Court of Appeal has held as follows:

In the published portion of the opinion, we note that effective January 1, 2019, section 998 will have no application to costs and attorney and expert witness fees in a FEHA action unless the lawsuit is found to be “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” For litigation that predates the application of the amended version of Government Code section 12965, subdivision (b) (Government Code section 12965(b)), we hold Code of Civil Procedure section 998 does not apply to nonfrivolous FEHA actions and reverse the order awarding defendant costs and expert witness fees pursuant to that statute. (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525 [228 Cal. Rptr. 3d 120] (Arave).)

(Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 76 [bold emphasis added].)

            The Fourth District has also held:

The question we face is whether this provision allows defendants to recover expert witness fees even though Arave's FEHA claims were not frivolous and FEHA's fee and cost provision itself bars the award of expert witness fees incurred in defending nonfrivolous claims. Our answer is no. There is a conflict between Section 998(c) and Section 12965(b) as applied in this case. Section 12965(b) precludes the trial court from exercising its discretion to award defendants expert witness fees because plaintiff's FEHA claims were not frivolous. However, Section 998(c) purports to authorize the trial court to exercise its discretion and award defendants at least a portion of their expert witness fees because they offered to settle for an amount greater than the verdict. We resolve the conflict in favor of the FEHA provision, which the Legislature enacted as part of a comprehensive statutory scheme designed to encourage victims of discrimination in employment or housing to seek relief. Because Section 12965(b) provides for the award of attorney fees, ordinary costs, and expert witness fees in FEHA actions in a way that conflicts with the generally applicable provisions for such awards, we conclude the later, more specific FEHA provisions control. (See In re Marriage of Green (1989) 213 Cal.App.3d 14, 24 [261 Cal. Rptr. 294] [holding § 998 does not apply to family law cases, because the Legislature specifically provided how costs and fees are to be awarded in such proceedings].)

(Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 552 [bold emphasis added].)

“Despite its discretionary language, however, the statute applies only if the plaintiff's lawsuit is deemed unreasonable, frivolous, meritless, or vexatious. … ‘ “[M]eritless” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case … .’ ” (Citation omitted.) “[A] plaintiff's ability to pay must be considered before awarding attorney fees [in a FEHA action] in favor of the defendant.” (Citation omitted.) A trial court awarding attorney's fees to a prevailing defendant under Government Code section 12965, subdivision (b) also must make “express written findings” demonstrating that it has applied the proper standards. (Citation omitted.) 

(Robert v. Stanford University (2014) 224 Cal.App.4th 67, 70-73.)

            Here, Defendant did not demonstrate that Plaintiff’s action was frivolous, unreasonable, without foundation, or brought in bad faith. Further, this Court has found to the contrary in ruling upon Plaintiff In Interventions’ motion to tax costs, heard on June 22, 2023.  

            To reiterate: here, the Court entered judgment in favor of Plaintiff as to the first and third causes of action. The Court does not find that this action was frivolous, unreasonable or groundless when brought. As to whether Plaintiff continued to litigate this action when it became clear that it was frivolous, unreasonable or groundless, Defendant did not demonstrate that this was the case. As such, the Court finds that the standard set forth in Gov. Code § 12965(c)(6) has not been satisfied to permit prevailing Defendant to recover costs (or attorney’s fees).

            As such, Defendant’s motion for attorney’s fees and costs is DENIED.