Civil Rights, Costs: Some 998 Fee-Shifting Costs Stricken By Court Of Appeal In Nonfrivolous FEHA Case

2/8 DCA Agreed With Arave and Huerta In Reducing Costs Award.

            In Butts v. Bd. of Trustees of Cal. State Univ., Case No. B282452 (2d Dist., Div. 8 Mar. 13, 2019) (unpublished), FEHA plaintiff lost against defendant Cal. State Universities on FEHA claims, even after a reversal and remand where the loss occurred again. The lower court awarded costs of $64,063.81 in favor of the defense, some of which were shifted when plaintiff rejected defense CCP § 998 offers. On appeal, the 2/8 DCA affirmed some of the costs, but struck $38,276.22 in costs. Reason for striking costs: they were not allowable, even under section 998, because the FEHA claims were not determined to be frivolous in nature. The trial judge relied on Holman v. Altana Pharma US, Inc., 186 Cal.App.4^th 262, 281 (2010), but the Court of Appeal found Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5th 525 (2018) and Huerta v. Kava Holdings, Inc., 29 Cal.App.5th 74, 84 (2018) more persuasive in determining that costs were not recoverable in this specific context.