Civil Rights, Section 998: Summary Judgment Winning Defendants Properly Denied FEHA Attorney’s Fees And Routine Costs Because Case Was Not Frivolous

Also, FEHA And Non-FEHA Claims Overlapped Such That Costs Recovery Was Foreclosed.

            In Liza v. CKE Restaurant Holdings, Case No. B313111 et al. (2d Dist., Div. 2 Sept. 25, 2023) (unpublished), defendant won a summary judgment against plaintiff’s FEHA and non-FEHA claims, although they did overlap.  The lower court later denied the defense request for attorney’s fees and routine costs.

            The 2/2 DCA affirmed.  The appellate court agreed with the lower court’s determination that the action was not frivolous, with a loss on a case not being the automatic equivalent of the matter being specious.  With respect to the interplay between FEHA claims, non-FEHA claims, and CCP § 998, the reviewing court found that Scott v. City of San Diego, 38 Cal.App.5^th 228, 242-243 (2019) was correct in reasoning that pre-998 versions did not change the rule that frivolity had to be found in the case, which prevented recovery of routine costs by the defense given the trial judge’s conclusion that there was overlap in the FEHA and non-FEHA issues.

            BLOG COMMENTARY—Where a defendant affirms an adverse FEHA determination, appellate costs also are governed by the frivolity standard.  (See Pollock v. Tri-Modal Distrib. Services, 11 Cal.5^th 918, 929 (2021).)