Respondents Did A Smart Thing On Appeal.
Respondents in McClain v. Pacific Maritime Assn., Case No. B262952 (2d Dist., Div. 6 Oct. 27, 2016) (unpublished) did a smart thing after winning a disability discrimination case and after being awarded routine costs against the losing FEHA plaintiff. Given that FEHA costs are not awardable against a losing FEHA plaintiff unless the action was objectively without foundation, see Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 105 (2015), respondents waived routine costs upon plaintiff’s appellate challenge to the cost award—which was a prudent move because the action was likely not frivolous given that it went all the way to a statement of decision determination following a bench trial. Respondent’s decision resulted in the merits determination being affirmed and preempting any remand for a likely pointless hearing at which costs would not be awarded anyway.