Costs On Allocable Non-FEHA Claims Only Allowable To Defendants Outside Of Williams Standard.
In Roman v. BRE Properties, Inc., Case No. B246841 (2d Dist., Div. 7 June 17, 2015) (published), prevailing defendant in a FEHA case was awarded $4,994.98 in routine costs in a case involving a FEHA claims and other non-FEHA claims (although some did seem to be intertwined) based on the theory that frivolousness did not need to be shown for routine costs. The award had to be reversed with respect to the FEHA claim in light of Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97 (2015), which held that a non-prevailing plaintiff could only be exposed to routine costs on a FEHA claim where it was shown the case was frivolous, without objective basis, or meritless in nature.
However, the real issue of further interest was whether the inclusion of additional non-FEHA claims divested the lower court of discretion to award routine costs to a prevailing FEHA defendant under Williams. Answer: It depends. As we read this one, if the non-FEHA claims were really intertwined with the FEHA claims, then Williams is the rule; if the non-FEHA claims are truly separable and not intertwined with the FEHA claim, then routine costs are allowable to the prevailing defendant. This will require some trial judge discretion, but is a fairly nice “bright line” test.