Appealability/Civil Rights/Costs: Trial Court’s Reduction Of Some Costs Items Showed It Did Credit Ability To Pay When Assessing Costs Against Non-prevailing FEHA Plaintiff

 

DCA Also Addressed Some Special Costs Items in the Process; Sustained Cost Award Assessed Against Counsel When Counsel Did Not Appeal.

     Losing plaintiff in a FEHA case appealed after the lower court ordered that $34,906.12 in routine costs be paid by her (out of a requested $54,667.39).

     Her challenges to the award were unpersuasive and could not hurdle the abuse of discretion standard in White v. Corinthian Colleges, Inc., Case No. B245377 (2d Dist., Div. 5 Mar. 7, 2014) (unpublished).

     Although alleging that the trial court should have considered her financial hardship in assessing costs (Knight v. Hayward, 132 Cal.App.4^th 121, 135-136 (2005)), the reviewing court believed that this “pocketbook factor” was considered based on the lower court’s reduction in the costs request.

     The appellate court also provided discussion on these specifically challenged costs items:

     1. Non-motion filing fees. Fees associated with filings of stipulations, jury instructions, and special verdict were proper, because the governing statute was not isolated to filing fees for motions alone.

     2. Deposition costs and witness fees where stipulation reached to use testimony in prior action. Absent an agreement to do so, the deposition costs and witness fees associated in the pending case were appropriate, with a party not having to allocate deposition fees between two actions even if testimony was used in both. (Howard v. American Nat. Fire Ins. Co., 187 Cal.App.4^th 498, 540-541 (2010).)

     3. Court-ordered mediation costs. These were allowable under Code of Civil Procedure section 1033.5(c)(4). (Gibson v. Bobroff, 49 Cal.App.4^th 1202, 1207-1209 (1996).)

     Then, the losing party also appealed the fact that costs were assessed jointly and severally against her counsel, too. The problem was that aggrieved counsel should have appealed such that the party appealing alone did not do the trick. (Calhoun v. Vallejo City Unified School Dist., 20 Cal.App.4^th 39, 42 (1993).)

     BLOG UNDERVIEW—Losing plaintiff did not raise the argument that routine costs under FEHA could not be assessed unless the defense proved her case was frivolous, groundless, etc., an issue which is pending before the California Supreme Court in Williams v. Chino Valley Independent Dist., Case No. S213100. The court website shows that the reply brief in this case is due April 1, 2014 at which point the case is likely at issue for argument.