Legislative Enactment Resolved Split Among DCAs, As Recognized In Huerta, Effective January 1, 2019.
Although alluding to it in some posts on a year-end 2018 case, we post to indicate that California Senate Bill 1300 amended the FEHA scheme to provide that CCP § 998 offers may not be used to shift recovery of attorney’s fees and costs to a prevailing defendant unless the court finds that the action was essentially frivolous in nature. It resolved an intermediary appellate split in opinion as recognized in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal. App. 5th 525, 554 (4th Dist., Div. 2 Jan 2, 2018) (where fees/costs not shifted, but acknowledging division in authority on this point) [discussed in our January 2, 2018 post]. Even after the passage of SB 1300, the Second District in Huerta v. Kava Holdings, Inc., 29 Cal. App. 5th 74, 78, fn. 11 (2nd Dist., Div. 8 Nov. 14, 2018) [discussed in our November 17, 2018 post] applied Arave and noted the statutory change to take effect January 1, 2019 which has resolved the appellate split.