Superior Court San Bernardino County, No. CIVRS801732, Ct. App. 4/2 E055755 Janet M. Frangie Judge
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Loring Winn Williams, in pro. per.; Hamilton & McInnis, Donald E. McInnis, Ben-Thomas Hamilton; The deRubertis Law Firm, David M. deRubertis, Helen U. Kim; Pine & Pine and Norman Pine for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Peter J. Brown and Judith S. Islas for Defendant and Respondent.
Kira L. Klatchko for League of California Cities, California Association of Counties, California Special Districts Association, California Association of Sanitation Agencies, Fire Districts Association of California and Association of California Water Agencies as Amici Curiae on behalf of Defendant and Respondent.
Plaintiff Loring Winn Williams sued defendant Chino Valley Independent Fire District (the District) for employment discrimination in violation of the California Fair Employment and Housing Act. (FEHA; Gov. Code, § 12900 et seq.) The trial court granted summary judgment for the District and, in a separate order, awarded the District its court costs. Williams appealed from the latter order, contending that in the absence of a finding his action was frivolous, unreasonable or groundless, defendant should not have been awarded its costs.
The issues presented are these: Is a defendant prevailing in a FEHA action entitled to its ordinary court costs as a matter of right pursuant to Code of Civil Procedure section 1032, or only in the discretion of the trial court pursuant to Government Code section 12965, a provision of FEHA itself? And, if the trial court does have discretion, must that discretion be exercised according to the rule applicable to attorney fee awards in certain federal civil rights actions under Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 [54 L.Ed.2d 648, 98 S.Ct. 694] (Christiansburg), according to which a prevailing defendant receives its attorney fees only if the plaintiff’s action was objectively groundless?
We conclude Government Code section 12965, subdivision (b), governs cost awards in FEHA actions, allowing trial courts discretion in awards of both attorney fees and costs to prevailing FEHA parties. We further conclude that in awarding attorney fees and costs, the trial court’s discretion is bounded by the rule of Christiansburg; an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff
brought or continued litigating the action without an objective basis for believing it had potential merit.
Factual and Procedural Background
Plaintiff, a firefighter, sued defendant, his employer, alleging disability discrimination in violation of FEHA. On summary judgment, the trial court ruled for defendant and awarded it costs in an amount to be determined. Defendant filed a memorandum of costs, and plaintiff moved to tax costs. The trial court granted the motion to tax in part, reducing the award from the requested amount, but rejected plaintiff’s contention that the Christiansburg standard applied to an award of court costs. Without making any finding plaintiff’s action was frivolous, unreasonable, or groundless, the trial court awarded defendant costs totaling $5, 368.88. (As far as the record on appeal shows, defendant did not request an award of attorney fees.)
On appeal from the costs order, the Court of Appeal affirmed. The appellate court held the governing statute was Code of Civil Procedure section 1032, subdivision (b), which allows a prevailing party its court costs as a matter of right, rather than Government Code section 12965, subdivision (b), which makes such an award discretionary. The court also distinguished between attorney fees (which it agreed were subject to the Christiansburg standard) and costs, observing that attorney fees “can be more expensive and unpredictable than ordinary costs and could discourage plaintiffs from filing meritorious actions.”
As the issues here are ones of statutory interpretation, we begin with the central statutes involved.
Code of Civil Procedure section 1032, subdivision (b) (Code of Civil Procedure section 1032(b)), guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”
Code of Civil Procedure section 1033.5 limits recoverable costs to those both “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Id., subd. (c)(2), (3).) The section also details the types of expenses “allowable as costs under Section 1032.” (Id., subd. (a).) These include filing, motion, and jury fees, food and lodging costs for sequestered juries, the costs of taking necessary depositions, costs of service of process,
fees of ordinary witnesses and of court ordered experts, the costs of transcripts ordered by the court, attachment expenses and surety bond premiums, fees of court reporters and interpreters, and the costs of exhibits helpful to the trier of fact. (Id., subd. (a)(1)-(9), (11)-(13).) Attorney fees and parties’ expert witness fees are not ordinarily recoverable as costs under section 1032. (§ 1033.5, subds. (a)(10), (b)(1).) Below, we sometimes use the phrase “ordinary costs” to refer to those costs allowed by section 1033.5, subdivision (a).
Government Code section 12965, subdivision (b) (Government Code section 12965(b)), provides for private actions to enforce the provisions of FEHA. It states in part: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.” (§ 12965(b).)
Two principal issues are disputed here: Is Government Code section 12965(b) an express exception to Code of Civil Procedure section 1032(b), allowing discretion in cost awards rather than requiring them as a matter of right? And if so, is the court’s discretion in awarding costs to a prevailing party under Government Code section 12965(b) bounded by an asymmetric rule requiring a finding the plaintiff’s action was groundless before a cost award may be made to a prevailing defendant? While these are questions of California law, their resolution requires discussion, as well, of federal law on cost awards in civil rights litigation.
In an action under title VII of the Civil Rights Act of 1964 (Pub.L. No. 88-352 (July 2, 1964) 78 Stat. 241) (Title VII), the trial court, “in its discretion, may allow the prevailing party... a reasonable attorney’s fee... as part of the costs.” (42 U.S.C. § 2000e-5(k).) In Christiansburg, the high court interpreted this discretionary provision as creating a different standard for awards of fees to prevailing defendants than to prevailing plaintiffs: while prevailing Title VII plaintiffs, whom Congress had chosen as instruments to vindicate its policy against job discrimination, should ordinarily be awarded their fees (Christiansburg, supra, 434 U.S. at pp. 416–417, 418), a Title VII plaintiff “should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” (Christiansburg, at p. 422.)The legislative history of Title VII indicated the purpose of the fee provision was to “ ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’ ” (Christiansburg, a ...