Employment: Plaintiff Not Obtaining Money Or Injunctive Relief In FEHA Case Properly Denied Fees, And Trial Judge Properly Awarded Partial Claimed Costs Under CCP § 998 To Defense

4/1 DCA Adhered To Its Prior Sviridov Opinion, Despite Arave’s Criticism Of Svirdov.

            In Broten v. Target Corp., Case No. D070712 (4^th Dist., Div. 1 Apr. 4, 2018) (unpublished), plaintiff sued Target for various retaliation/wrongful termination claims under FEHA.   Although jurors found that harassment was a substantial motivating factor in Target’s discharge of plaintiff, it answered negatively on causation and awarded no damages.  The trial judge refused to grant injunctive relief.  The trial judge denied plaintiff’s request for FEHA attorney’s fees in the amount of nearly $1.68 million.  Because plaintiff rejected a CCP § 998 offer for $51,000 and all reasonably incurred fees/costs, the defense moved for certain costs, with the trial judge giving credit to plaintiff’s meager financial condition but deciding that section 998 was an independent basis for cost-shifting, awarding $66,075.10 to the defense ($30,261.92 representing electronic data processing and hosting fees) out of a requested close to $100,000 in claimed costs.

            The 4/1 DCA affirmed the fees and costs determinations on appeal.

            With respect to the fee denial, the ultimate facts were that plaintiff did not prevail and obtain any relief, with FEHA not requiring a fee award under these circumstances.

            The costs award drew a more detailed discussion, given that plaintiff claimed FEHA’s pro-plaintiff bent (including consideration of financial condition) precluded costs-shifting.  However, the 4/1 DCA adhered to its reasoning in Sviridov v. City of San Diego, 14 Cal.App.4^th 514, 519-221 (2017) [discussed in our June 28 and Aug. 16, 2017 posts] that 998 allows the cost-shifting and is not effectively “preempted” by FEHA or its policies.  In this regard, Broten did not agree with the criticism that the 4/2 DCA Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5^th 525, 554-555 (2018) [discussed in our Jan. 2, 2018 post] leveled at Sviridov.  Instead, the 4/1 DCA believed that FEHA does not carve out an exception for section 998 offers, such that plaintiffs should be incentivized to carefully weigh them even in FEHA contexts.

            BLOG OBSERVATION—There appears to be a conflict on intermediate appellate thinking on this FEHA/998 issues.  We note that no one sought review of Arave, such that it became final on March 27, 2018, although review was sought and denied in Sviridov.  Looks like this issue is ripe for review given the split in thinking at some point in time.