Civil Right,Costs,Special Fee Shifting Statute: Lower Court Decision To Deny Prevailing Defendant Attorney’s Fees And CCP § 1038 Defense Costs Affirmed On Appeal

 

Order Taxing Costs By Over Half Was No Abuse of Discretion, Either.

     In Berro v. County of Los Angeles, Case No. B223515 (2d Dist., Div. 4 Dec. 22, 2014) (unpublished), plaintiff—an ex-Los Angeles fire department captain—lost a FEHA case (mainly through a summary judgment motion), but the lower court refused to award Fire Department $418,372.33 in attorney’s fees/$26,862.50 in expert witness fees and $209,186.17 in defense costs under CCP § 1038 (an interesting fee-shifting statute in favor of governmental entities if certain requirements are met). The lower court also taxed (decreased) requested routine costs of $68,732,50, awarding Fire Department $31,882.36 instead.

     Fire Department appealed, but nothing changed.

     The lower court correctly determined that the FEHA case was not frivolous/unreasonable, especially given the lower court had a tentative to actually deny summary adjudication on certain claims (before reversing its tentative). Fire Department’s § 1038 fee request was untimely because it was made not made before discharge of the jury or before entry of judgment—it was made 2 months after judgment entry, way too late. The costs reduction was no abuse of discretion, with the appellate court determining that (1) the fees paid by a prevailing party to a non-prevailing party’s expert are not usually recoverable unless there is CCP § 998 fee shifting (Gorman v. Tassajara Development Corp., 178 Cal.App.4^th 44, 74 (2009)), and (2) voluntarily mediation expenses were correctly called as not being compensable under the circumstances of the case.