Policies Of Both FEHA Cost Shifting And 998 Cost Shifting To Be Considered By Trial Courts, But 998 Resolution Policies Prevailed In This One.
Sviridov v. City of San Diego, Case No. D069785 (4th Dist., Div. 1 July 28, 2017) (unpublished) is an interesting case where a terminated police officer failed to beat several Code of Civil Procedure section 998 offers in a matter involving FEHA and Public Safety Officers Procedural Bill of Rights Act (POBRA) claims. The trial judge awarded defendants City of San Diego and San Diego Police Department $90,387.28 in costs based on the rejected 998 offers.
Plaintiff appealed, arguing “you can’t do that” because costs are not awardable under FEHA unless the action is deemed frivolous and in bad faith (citing Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 99 (2015)) and under POBRA unless the action is frivolous (citing Government Code section 3309.5(d)(2)). The appellate court upheld the trial judge’s costs award. It found that the policies of both FEHA and section 998 were worthy of consideration, but that the 998 resolution-oriented policies prevailed in this situation. With respect to the POBRA statutory section, there was ending language indicating that it was not an express exception to other provisions such as routine costs statutes or section 998, with 998 winning out in this particular case.