Costs: Because FEHA Costs Involve An Exercise Of Lower Court’s Discretion In Finding Case Was Frivolous, Costs Memorandum Is An Ineffective Means Of Seeking Costs

Same Rule Applies To Routine Costs Which Are Not A Matter Of Right.

            This case is a good reminder for practitioners representing prevailing parties to seek discretionary costs through a noticed motion, not just through a cost memorandum.

            In Neeble-Diamond v. Hotel California By The Sea, LLC, Case No. G061425 (4^th Dist., Div. 3 Jan. 11, 2024) (unpublished), a FEHA prevailing defendant was awarded routine costs of $180,369.41, via a cost memorandum not timely opposed, after the lower court denied an attorney’s fees request because the plaintiff’s case was not frivolous.   The 4/3 DCA reversed in a decision authored by Acting Presiding Justice Goethals.  The panel found that since costs in this area were discretionary (given the lower court had to determine the case was not frivolous), a cost memorandum was an ineffective means of seeking such costs.  It also cited Anthony v. City of Los Angeles, 166 Cal.App.4^th 1011, 1015-1016 in support, which came to the same conclusion in the context of expert costs which were not recoverable as a matter of right under CCP § 1032.

            BLOG UPDATE: We can now report that this opinion was certified for publication on February 5, 2024.