Judge: David A. Hoffer, Case: 30-2019-1066989, Date: 2022-09-19 Tentative Ruling

Plaintiff’s Motion to Strike or Tax Costs is GRANTED.

Government Code § 12965(b) is an express exception to C.C.P. § 1032(b), and therefore governs costs awards in FEHA cases. (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.)  Costs that would otherwise be awarded as a matter of right to the prevailing party under C.C.P. § 1032(b) are instead awarded in the discretion of the trial court under Gov. Code § 12965(b).  Under §12965(b), a prevailing defendant should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so. (Id. at 115; Patterson v. Sup. Court (2021) 70 Cal.App.5th 473, 486–487.)  Here, the jury’s findings preclude such a conclusion on the harassment claim. (See ROA 395.)  And, although Plaintiff’s other FEHA claims were dismissed prior to trial, those claims had been adequately supported to withstand a prior motion for summary adjudication, and the evidence presented here does not demonstrate that they were objectively without foundation when brought, or that Plaintiff continued to litigate them after they clearly became so.

Although costs could potentially be recovered on Plaintiff’s non-FEHA claims, those claims were sufficiently entwined with the FEHA claims to preclude any such allocation here. (See Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1058-1062 [declining recovery of otherwise allowable costs incurred in defending intertwined and inseparable FEHA and non-FEHA claims].) Defendants argue that much of the same discovery would have occurred even without the FEHA claims, but the inverse also appears to be true, and Defendants have failed to show that any of the claimed costs were incurred for non-FEHA claims alone.

Defendants argue that, even if costs cannot be recovered by the employer, the individual defendant should be able to claim them. But here, the evidence presented reflects that the result would be the same. (ROA 479, Ex. 1.) That argument thus also fails here. (See Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, 1475 [rejecting fee claim in FEHA action where the actual beneficiary of the award would be a defendant as to whom award could not otherwise be made].)  

The Court also finds that Plaintiff has adequately shown that any such award would impose an undue hardship on him in light of his financial condition. (ROA 428, ¶¶ 2-6.) Such evidence is also relevant to the Court’s consideration here. (Roman v. BRE Properties, Inc., supra, 237 Cal.App.4th at 1062; see also Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203-1204.)

For all of these reasons, the Motion to Strike or Tax is granted.

Counsel for Plaintiff is ordered to give notice of this ruling.