Government Code Section 12989.2 Prohibition Trumped Award Under § 1028.5.
In Dept. of Fair Employment and Housing v. Mayr, Case No. H034935 (6th Dist. Feb. 9, 2011) (certified for publication), defendants won against Department of Fair Employment and Hosuing (DFEH) in a housing discrimination action, with the lower court awarding defendants attorney’s fees aggregating $19,200 under Code of Civil Procedure section 1028.5 (a sanctions statute allowing imposition of fees).
DFEH appealed and won a reversal.
The Sixth District, in a 3-0 opinion authored by Justice Elia, found that Government Code section 12989.2(a)–containing a prohibition against awarding fees and costs against the state–effectively trumped section 1028.5. Both the statutory language, legislative history, and “specific over general” statutory canons were used in reaching this determination.