$4,905.40 Fee Award Goes POOF!, However District Is Free to Try Again.
School district won a demurrer against an employee applicant suing for gender discrimination. It then was awarded fees of $4,905.40 under Code of Civil Procedure section section 1038.
The fee award got reversed in McCallum v. Escondido Union High School Dist., Case No. D058270 (4th Dist., Div. 1 Nov. 15, 2011) (unpublished). To its credit, school district conceded that section 1038 applies to a resolution reached after a summary judgment, section 631.8 judgment, directed verdict, or nonsuit, but not to sustaining a demurrer. (See also California Correctional Peace Officers Assn. v. Virga, 181 Cal.App.4th 30, 37 (2010).) However, the appellate court did not impede the District from renewing the request under other bases before the trial court (such as the FEHA bad faith fee-shifting statute, where plaintiff’s “pocketbook”–ability to pay–must be assessed).