Allocation, Civil Rights, Costs, Employment: Former Employer Properly Was Denied Attorney’s Fees Where FEHA Case Had Some Substance

However, 2/3 DCA Follows Roman Opinion On When To Award Costs On Non-FEHA Claims.

            In Chevreaux v. Long Beach Memorial Medical Center, Case Nos. B291268/B292937 (2d Dist., Div. 3 Feb. 24, 2021) (unpublished), a jury returned a defense verdict in favor of a former employer on a non-FEHA, Tameny retaliation claim after she dismissed two FEHA claims (age discrimination and a CFCA violation) on the eve of trial.   The lower court subsequently denied attorney’s fees to defendant after finding the dismissed FEHA claims were not baseless.  The trial judge also granted plaintiff’s motion to tax costs finding he could not award any costs to the defense because it did not apportion the costs expended to defend non-FEHA claims from those attributable to its defense of her FEHA claims, as required by the 2/7 DCA’s decision in Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1059 (2015). 

            The 2/3 DCA mainly affirmed, but it reversed and remanded to see if the defense might be awarded some routine costs for jury fees, court reporter fees, and trial exhibits.  It agreed that there was enough evidence to show an inference of age discrimination because plaintiff, aged 62, was replaced with women who were 50 and 44 even though the claims were dismissed before trial.  This Division also agreed with the reasoning in Roman, which allows a lower court discretion to see if non-FEHA claims did not overlap so as to be able to apportion out costs not related to the nonfrivolous FEHA claims.  Because the jury only considered one non-FEHA claim, it was fair game for the trial judge make factual determinations as far as awarding jury fees, court reporter fees, and trial exhibit costs in favor of the defense (considering whether the costs were reasonable, necessary, and whether there was an agreement to split court reporter fees).