Replacement By Younger Person Another Indicator To Prevent Routine Costs Award Under The Circumstances.
By now, our readers will know that plaintiffs losing FEHA claims generally, unless the facts are austere, avoid attorney’s fees or costs even though they ultimately lost at pleading, summary judgment, or trial stages. (To be fair, only a general observation, but one we have seen it to be true over the last 10 years of blogging on fee issues.) The next case gives further credence to our general observation.
In Brady v. Walt Disney Pictures, Case Nos. B275515/B27111 (2d Dist., Div. 1 May 9, 2018) (unpublished), plaintiff lost an age discrimination case against Disney in a summary judgment proceeding. The trial judge, however, did not grant Disney routine costs. That determination was affirmed on appeal. The reason was that the Williams case [our Leading Case No. 16] does not usually allow for fees or costs award unless losing plaintiff’s case was frivolous, unreasonable, or groundless either at the pleading or further prosecution stages. None of that occurred here. While the age discrimination case was not particularly strong, the case was not bereft of all proof, with replacement by a younger person being an indicator of age discrimination (a fact here)—so, in the end, no costs assessed against plaintiff.