Fourth District, Division One Rejects Engrafting Rosenman Requirements Into Routine Costs Proceedings.
In our earlier posts of December 11, 2008 on Trisler and December 16, 2008 on Young, we discussed the Rosenman requirements in FEHA cases: the trial court must make specific written findings as to why the action was frivolous and about plaintiff's ability to pay before attorney's fees can be properly awarded to the winning defense. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal.App.4th 859, 866 (2001).) The next case involves a creative argument made by a plaintiff who contended that the same requirements should govern imposition of routine costs that are claimed by the victorious defendant. This creativity did not find receptive ears with the Fourth District, Division One in Arnold v. The Senate Rules Committee, Case No. D051862 (4th Dist., Div. 1 Dec. 16, 2008) (unpublished).
Plaintiff lost FEHA claims through a summary judgment motion. Winning defendant then sought costs. Plaintiff moved to tax costs on the basis that costs should be disallowed or reduced based on her financial condition. The trial court rejected this argument, but did tax certain specific items resulting in a tax award to Senate of $37,976.70.
On appeal, plaintiff renewed her argument that, under Government Code section 12965(b), the court has discretion to disallow the cost award to an amount that was more financially manageable for her. Not correct, said the appellate panel, finding the creative argument foreclosed by Davis v. KGO-T.V., Inc., 17 Cal.4th 436, 442 (1998), which held FEHA did not intend to provide prevailing parties in a discrimination action with fewer remedies than they have "as of right" under the routine costs statutes. These routine costs provisions do not allow a trial court leeway to consider the fact that the losing party has limited financial resources to pay the costs award. (See Nelson v. Anderson, 72 Cal.App.4th 111, 129 (1999).) Given the uniform application of costs standards in both FEHA and non-FEHA contexts, the trial court properly rebuffed taking plaintiff's financial condition into account when determining the amount of costs to be awarded to the Senate.