$68,382.38 In Costs Not Allowed To Defense Is The Upshot.
In Smith v. Sharp Healthcare, Case No. D069206 (4th Dist., Div. 1 Dec. 22, 2017) (unpublished), plaintiff lost a case with both FEHA and non-FEHA claims, with the defense filing a costs memorandum seeking $68,382.38 after plaintiff rejected a CCP § 998 offer of $25,000. The trial judge granted plaintiff’s motion to tax costs in entirety, prompting an appeal by the defense.
Nothing changed on appeal.
Based on one jury response, the trial judge properly found that plaintiff’s case was not frivolous so as to justify a refusal to grant costs in accordance with the reasoning in Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97 (2015) and Roman v. BRE Properties, Inc., 237 Cal.App.4th 1040, 1057-1058 (2015). The defense argued that it should be granted costs on the separate Health & Safety Code section 1278.5 retaliation claim, but both courts found that it was intertwined with the FEHA claims such that costs were not justified under Roman. Finally, the section 998 offer was governed under the frivolousness standard, Mangano v. Verity, Inc., 167 Cal.App.4th 944, 951 (2008), such that no change in result was in order.