Williams Is Found To Be Retroactive To Cases Pending On Appeal.
Plaintiff lost FEHA/non-FEHA claims, both found to be interrelated, through a summary judgment motion. After that, the trial judge found the case to be meritless, awarding defendants a modest fee award of $15,000 after considering plaintiff’s ability to pay (with the defense requesting $292,567.50 in fees, with the tentative awarding $45,000, and with the final decision lowering the tally to only $15,000). The lower court also awarded routine costs in favor of defendants and against plaintiff in the sum of $16,072.07 before the California Supreme Court decided Williams v. Chino Valley Independent Fire District, 61 Cal.4th 97 (2015) [discussed in our May 4, 2015 post], which held that the award of routine costs against a losing FEHA plaintiff is discretionary.
Plaintiff appealed both the fee and costs award in De La Cruz v. El Pollo Loco, Inc., Case No. B255434 (2d Dist., Div. 4 Jan. 19, 2016) (unpublished), not obtaining any change in result on the fee award but a remand on the costs award.
With respect to fees, the trial judge’s decision to award quite a bit less than the requested fees was proper given the conclusions the case was not complex and plaintiff’s financial condition did not justify a higher award. No apportionment of fees was necessary given that the FEHA and non-FEHA claims were interrelated, as the defense argued in its request for fees.
However, the costs award had to be revisited in light of Williams. Williams was found retroactive to a case pending on appeal, such as here, and established that the costs award was discretionary rather than mandatory—especially given that it was not clear the trial judge believed the award was discretionary (including no clear indication that ability to pay was considered in deciding the costs award). The defense tried to argue the costs award was defensible based on the existence of the non-FEHA claims, but the appellate court found that this argument was too much in opposition to the defense argument in support of fees, namely, that the FEHA and non-FEHA claims were crucially interrelated.
With respect to plaintiff’s other challenges to the costs award, the reviewing court found that costs relating to plaintiff’s non-appearance at a scheduled deposition, expediting a deposition transcript for use in court proceedings, and attempting to obtain service were all compensable in the trial judge’s judgment if they were necessary to the litigation and reasonable in nature.