Legislature’s 2019 Amendment In Government Code Section 12965(b) Was To Be Retroactively Applied.
Effective January 1, 2019, the California Legislature amended Government Code section 12965(b) to resolve a split between two decisions, Sviridov and Arave [both of which were discussed in posts under our categories “Civil Rights” and “Section 998”], about whether CCP § 998 could result in shifting of routine costs against a nonprevailing FEHA civil rights plaintiff even where the suit was found not to be frivolous in nature. The California Legislature decided that CCP § 998 did not result in a different result; if the FEHA action is found to be nonfrivolous, no routine costs can be recovered against the unsuccessful plaintiff.
Now, the 4/1 DCA (which decided Sviridov, deciding that section 998 did allow for routine costs recovery) honored the 2019 amendment by finding that it should be retroactively applied to pre-2019 case rulings in this area. It placed particular significance on two circumstances: (1) the Senate Judiciary Committee Reports indicated the intent was to clarify rather than change the law; and (2) the Legislature obviously recognized the issue was ambiguous and close given the previous split in appellate decisions, choosing to clarify the situation in this substantive area.
The end result was that plaintiff’s rejection of a CCP § 998 offer, even though plaintiff lost at trial, did not result in plaintiff having to bear $51,946.96 in routine costs. The opinion was issued in Scott v. City of San Diego, Case No. D074061 (4th Dist., Div. 1 Aug. 1, 2019) (published).