Private Attorney General, Special Fee Shifting Statutes: Unilateral Fee-Shifting Clause In DFEH’s Favor Preempted An Award Of Private Attorney General Fees To Prevailing Defendants

Specific Statute Prevailed Over More General One As Far As Fee Entitlement.

            When two fee-shifting statutes collide, they sometimes can be reconciled but sometimes cannot—the latter was the conclusion in Dept. of Fair Employment & Housing v. Cathy’s Creations, Inc., Case No. F077802 (5^th Dist. Sept. 9, 2020) (published).

            There, defendants prevailed in an action brought by the Department of Fair Employment and Housing (DFEH) in a sexual discrimination matter.  Defendants then sought an award of fees under California’s private attorney general statute, CCP § 1021.5.  The trial court denied the fee request, a determination affirmed by the Fifth District on appeal.

            After review of dueling fee entitlement statutes, the Court of Appeal concluded that Government Code 12974 was preemptive because it was a unilateral fee-shifting clause in DFEH’s favor.  It was more specific than the more generalized private attorney general statute such that section 12974 governed, meaning the fee denial was correct.