Matter Remanded to Demand Costs Under Routine Costs Statutes, Rather than Broader FEHA Costs-Shifting Provision.
FEHA does have a broad fee-shifting/costs-shifting statute, even covering expert witness fees and generally tilted in favor of winning plaintiffs. Plaintiff won two FEHA counts through a special jury verdict, but defendant moved for a JNOV on the ground that no timely right-to-sue letter had been sought. The JNOV was not granted, with the lower court granting plaintiff attorney’s fees of $567,220.57 and costs of $84,864.47 under FEHA.
The fees and costs award went POOF! on appeal in Dickinson v. Allstate Ins. Co., Case Nos. G045033/G045295 (4th Dist., Div. 3 Apr. 19, 2013) (unpublished), in a 2-1 decision authored by Acting Presiding Justice Bedsworth (with a dissent by Justice Moore on the right-to-sue letter issue).
The majority found that the defense JNOV should have been granted on the FEHA counts, because no timely right-to-sue letter had been submitted to DEFH (put another way, no timely exhaustion of administrative remedies). This meant the fee award was reversed.
As to costs, however, plaintiff did prevail on a “self-publication” claim, such that the costs had to be recalculated–not under FEHA (which did allow for expert witness fee recovery), but under routine costs where expert fees are not in play unless a CCP § 998 offer was involved. Remanded to re-fix the costs award for plaintiff/plaintiff’s attorneys, who were about $652,000 poorer after the appellate process.