Williams v. Chino Valley Independent Fire District

Filed 5/4/15

IN THE SUPREME COURT OF CALIFORNIA

LORING WINN WILLIAMS, )

)

Plaintiff and Appellant, )

) S213100

v. )

) Ct.App. 4/2 E055755

CHINO VALLEY INDEPENDENT )

FIRE DISTRICT, )

) San Bernardino County

Defendant and Respondent. ) Super. Ct. No. CIVRS801732

____________________________________)

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

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applicable to attorney fee awards in certain federal civil rights actions under

Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 (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

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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.‖

DISCUSSION

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. (Id., 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).

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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.‖ (Ibid.)

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 1964 Civil Rights Act (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 an instrument 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, at p. 420.) To award fees to a defendant simply because the

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plaintiff was ultimately unsuccessful ―would substantially add to the risks inhering

in most litigation and would undercut the efforts of Congress to promote the

vigorous enforcement of the provisions of Title VII.‖ (Id. at p. 422.)

Christiansburg involved attorney fees, not court costs, and the high court has

not decided whether the same asymmetrical standard applies to an award of costs

to a prevailing Title VII defendant. Several lower courts have held it does not.

In Nat. Organization for Women v. Bank of California (9th Cir. 1982) 680

F.2d 1291, 1294, the court relied on Federal Rules of Civil Procedure, rule 54(d)

(28 U.S.C.) (rule 54(d)), which states the prevailing party should be allowed costs

unless otherwise provided by statute, rule, or court order, and observed that Title

VII contains ―no express statutory provision for applying Christiansburg to cost

awards.‖ (Accord, Delta Air Lines, Inc. v. Colbert (7th Cir. 1982) 692 F.2d 489,

491, fn. 5 [―Title VII contains no provision respecting costs, unlike its special

provision on attorney‘s fees.‖]; Poe v. John Deere Co. (8th Cir. 1982) 695 F.2d

1103, 1108 (Poe) [positing as a rationale for Title VII‘s provision for discretionary

award of fees and absence of similar provision for costs that ―[w]hereas the

magnitude and unpredictability of attorney‘s fees would deter parties with

meritorious claims from litigation, the costs of suit in the traditional sense are

predictable and, compared to the costs of attorneys‘ fees, small‖]; Cosgrove v.

Sears, Roebuck & Co. (2nd Cir. 1999) 191 F.3d 98, 101–102 [following Poe in

distinguishing between costs and fees by their size and predictability]; Byers v.

Dallas Morning News, Inc. (5th Cir. 2000) 209 F.3d 419, 430 [relying on rule

54(d)‘s allowance of costs to the prevailing party and noting that ―Title VII does

not expressly provide otherwise . . . .‖].)

While these lower federal court decisions have not applied Christiansburg to

costs in Title VII actions, the Ninth Circuit Court of Appeals has done so in

actions under the Americans with Disabilities Act (ADA), a provision of which

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gives trial courts discretion to award the prevailing party ―a reasonable attorney‘s

fee, including litigation expenses, and costs.‖ (42 U.S.C. § 12205.) In Brown v.

Lucky Stores, Inc. (9th Cir. 2001) 246 F.3d 1182, 1190, the court held this

―express provision governing costs‖ prevailed over rule 54(d)‘s general allowance

of costs to the prevailing party. Because the ADA provision ―makes fees and

costs parallel,‖ moreover, the court held the Christiansburg standard for fees

applies as well to a cost award to a prevailing ADA defendant. (Brown v. Lucky

Stores, Inc., supra, 246 F.3d at p. 1190.)

In Martin v. California Dept. of Veterans Affairs (9th Cir. 2009) 560 F.3d

1042, concerning an award of costs under the Rehabilitation Act, a provision of

which gives the court discretion to award a prevailing party ―a reasonable

attorney‘s fee as part of the costs‖ (29 U.S.C. § 794a(b)), the Ninth Circuit

elaborated on its earlier textual analysis. Like the fee provision of Title VII, but

unlike that of the ADA, the Rehabilitation Act section ―makes an attorney fee

award discretionary‖ but ―does not suggest that ‗the costs‘ are similarly

discretionary, but rather that they are a given, to which fees may attach.‖ (Martin

v. California Dept. of Veterans Affairs, at p. 1053.) The ―parallel structure‖ of the

ADA provision (―a reasonable attorney‘s fee . . . and costs‖ (42 U.S.C. § 12205))

being ―critically absent from the relevant texts of both the Rehabilitation Act and

Title VII,‖ prevailing defendants under the Rehabilitation Act, like those under

Title VII, are to be awarded their costs pursuant to rule 54(d) regardless of

whether the Christiansburg standard is met. (Martin v. California Dept. of

Veterans Affairs, at p. 1052.)

Turning to FEHA case law, we begin with Cummings v. Benco Building

Services (1992) 11 Cal.App.4th 1383 (Cummings), which adopted the

Christiansburg standard for awards of fees and costs to prevailing FEHA

defendants. In an age discrimination suit under FEHA, the trial court granted

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summary judgment to the defendant and awarded it more than $60,000 in attorney

fees and about $3,000 in costs. (Cummings, at pp. 1385–1386.) Quoting

Government Code section 12965(b) and relying on the similarity of language and

purposes between FEHA and Title VII, the appellate court held ―[t]he standard a

trial court must use in exercising its discretion in awarding fees and costs to a

prevailing defendant was set forth in the Supreme Court‘s decision in

Christiansburg . . . .‖ (Cummings, at p. 1387.) Without discussing costs

separately from attorney fees, the Cummings court concluded both were subject to

Christiansburg and, finding the plaintiff‘s action was not groundless, reversed the

trial court‘s order as an abuse of discretion as to both fees and costs. (Cummings,

at p. 1388.)

With regard to awards of attorney fees to prevailing FEHA defendants,

numerous appellate decisions have followed Cummings in applying the

Christiansburg standard. (See, e.g., Leek v. Cooper (2011) 194 Cal.App.4th 399,

419–420; Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, 1475;

Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948–949; Rosenman v.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th

859, 874 [―Any other standard would have the disastrous effect of closing the

courtroom door to plaintiffs who have meritorious claims but who dare not risk the

financial ruin caused by an award of attorney fees if they ultimately do not

succeed.].‖) In Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985, we

noted this line of decisions with apparent approval, observing that ―California

courts have adopted‖ the Christiansburg standard for attorney fee awards in

FEHA cases. We did not address the standard for ordinary costs.

With regard to costs awards, on the other hand, the published California

decisions on point have declined to follow Cummings. In Perez v. County of Santa

Clara (2003) 111 Cal.App.4th 671, 679 (Perez), the defendant, having prevailed in

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a court trial of the plaintiff‘s FEHA claims, sought about $13,000 in costs, which

the trial court denied, citing Cummings. Although disagreeing with the plaintiff

that Government Code section 12965(b) states an express exception to Code of

Civil Procedure section 1032(b), the Perez court, somewhat contradictorily, found

it ―clear that [Government Code] section 12965(b) governs the costs at issue here‖

and considered the ―only question‖ to be ―whether the court must find the action to

be frivolous, unreasonable, or groundless before it may exercise that discretion to

award costs to a prevailing FEHA defendant.‖ (Perez, at p. 679.) On that

question, Perez found persuasive the federal case law on Title VII costs, in

particular the contrast made in Poe between the ― ‗magnitude and unpredictability

of attorney fees,‘ ‖ an award of which ― ‗would deter parties with meritorious

claims from litigation,‘ ‖ and ordinary costs, which are ― ‗predictable and,

compared to the costs of attorneys‘ fees, small.‘ ‖ (Perez, at p. 681, quoting Poe,

supra, 695 F.2d at p. 1108.) Perez concluded that ―ordinary litigation costs are

recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous,

groundless, or unreasonable.‖ (Perez, at p. 681.)

Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121

followed Perez rather than Cummings on FEHA costs. The trial court gave

summary judgment for the defendant district and awarded it more than $3,000 in

costs. (Knight v. Hayward Unified School Dist., at p. 134.) The appellate court

affirmed, finding Perez persuasive and observing that while ―costs may in some

FEHA cases be considerable, . . . Perez does not prevent nonprevailing plaintiffs

from pleading and demonstrating that such an award would impose undue

hardship or otherwise be unjust, and should therefore not be made, and we are

unwilling to assume trial judges would turn a deaf ear to such equitable claims.‖

(Knight v. Hayward Unified School Dist., at pp. 135–136; accord, Hatai v.

Department of Transportation (2013) 214 Cal.App.4th 1287, 1299. With this

8

background in the statutes and case law, we address the interpretive questions

before us.

I. Is Government Code Section 12965(b) an Express Exception to

Code of Civil Procedure Section 1032(b)?

As noted earlier, Code of Civil Procedure section 1032(b) provides that civil

defendants are ―entitled as a matter of right‖ to recover their costs ―[e]xcept as

otherwise expressly provided by statute.‖ Unless Government Code section

12965(b) expressly excepts FEHA parties from this entitlement, therefore, a

prevailing FEHA defendant is entitled to its costs as a matter of right.

We conclude Government Code section 12965(b) is an express exception to

Code of Civil Procedure section 1032(b) and the former, rather than the latter,

therefore governs costs awards in FEHA cases. The FEHA statute expressly

directs the use of a different standard than the general costs statute: Costs that

would be awarded as a matter of right to the prevailing party under Code of Civil

Procedure section 1032(b) are instead awarded in the discretion of the trial court

under Government Code section 12965(b). By making a cost award discretionary

rather than mandatory, Government Code section 12965(b) expressly excepts

FEHA actions from Code of Civil Procedure section 1032(b)‘s mandate for a cost

award to the prevailing party.

Our prior case law is not to the contrary.

In Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, we held a

provision of the Song-Beverly Consumer Warranty Act, Civil Code section 1794,

subdivision (d), was not an express exception to Code of Civil Procedure section

1032(b). We so concluded because Civil Code section 1794, subdivision (d),

awards costs to the prevailing buyer of consumer goods in an action under the

statutory scheme, but is silent as to a prevailing seller. ―In other words, it does not

expressly disallow recovery of costs by prevailing sellers; any suggestion that

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prevailing sellers are prohibited from recovering their costs is at most implied.

Accordingly, based on the plain meaning of the words of the statutes in question,

we conclude Civil Code section 1794(d) does not provide an ‗express‘ exception

to the general rule permitting a seller, as a prevailing party, to recover its costs

under section 1032(b).‖ (Murillo, at p. 991.) We went on to distinguish cases

involving cost statutes that ―concern the ability of both parties to recover costs . . .

or require that additional conditions be satisfied before one side of the litigation

may recover costs,‖ observing that ―these statutes may constitute express

exceptions to section 1032(b).‖ (Id. at p. 999.)

Though both parties in the present case cite Murillo, it tends to support

plaintiff‘s position, and our conclusion, that Government Code section 12965(b) is

an express exception to Code of Civil Procedure section 1032(b). Government

Code section 12965(b), rather than being silent as to either party‘s recovery of

costs, expressly states that both parties are allowed costs in the trial court‘s

discretion, a standard expressly differing from the entitlement to costs provided

under Code of Civil Procedure section 1032(b).

For the proposition that Government Code section 12965(b)‘s discretionary

standard does not govern the award of costs in FEHA cases, defendant relies

heavily on Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436 (Davis). In Davis, we

held Government Code section 12965(b) did not authorize the trial court in a

FEHA case to award the prevailing party its expert witness fees as part of the

costs. (Davis, at p. 446.)1 We reasoned that Government Code section 12965(b),

while authorizing a discretionary award of ―costs‖ to the prevailing party, does not

define that term, while the statute that sets out allowable and nonallowable costs,

1 At the time, Government Code section 12965(b) did not expressly allow

expert witness fees as costs. The Legislature later amended the statute to add such

fees, abrogating Davis‘s holding. (See Stats. 1999, ch. 591, § 12, p. 4222.)

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Code of Civil Procedure section 1033.5, states that expert witness fees are not

allowable absent express statutory authority (id., subd. (b)(1)). (Davis, at pp. 439–

442.) Government Code section 12965(b) ―uses the bare term ‗costs,‘ while Code

of Civil Procedure section 1033.5 defines the term by codifying the rules

specifying which ‗costs‘ are allowable, which are nonallowable, and which are

within the trial court‘s discretion.‖ (Davis, at p. 443.)

Davis‘s holding and dispositive reasoning are not informative on the question

before us here, whether Government Code section 12965(b), as an express

exception to Code of Civil Procedure section 1032(b), governs the award of costs

in FEHA actions. Davis addressed the relationship between Government Code

section 12965(b) and Code of Civil Procedure section 1033.5, not Code of Civil

Procedure section 1032(b). Our holding in Davis that the definition of allowable

costs in Code of Civil Procedure section 1033.5 governs the type of costs that may

be awarded under Government Code section 12965(b) has no application in this

case, where the question is not whether the court had the authority to award the

type of costs it did — ordinary costs of types indisputably allowable under Code

of Civil Procedure section 1033.5 — but whether the court enjoyed discretion in

deciding whether or not to award costs to a prevailing FEHA defendant.

Davis does, however, contain a brief dictum that supports defendant‘s

position. In the course of our discussion we observed that while the trial court

lacked authority under Government Code section 12965(b) to award expert

witness fees, it did have the discretion ―to award or deny any additional items of

costs that are not mentioned as either allowable or nonallowable in Code of Civil

Procedure section 1033.5.‖ (Davis, supra, 17 Cal.4th at p. 444.) In the

accompanying footnote, we added: ―At the same time, we reject any suggestion

that Government Code section 12965, in referring to the trial court‘s ‗discretion‘

to award attorney fees and costs, intended to provide the prevailing party in a

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discrimination action with fewer remedies than those afforded ‗as of right‘ to other

litigants pursuant to Code of Civil Procedure sections 1032 and 1033.5.‖ (Id. at

p. 444, fn. 3.) Though the issue was not before us in Davis, this sentence does

suggest the view that Code of Civil Procedure section 1032(b), rather than

Government Code section 12965(b), governs the award of ordinary costs to a

prevailing FEHA party.

We spoke too broadly in the quoted dictum. As will be seen, the discretion

provided in Government Code section 12965(b) does not significantly lessen the

availability of costs to a prevailing FEHA plaintiff — the circumstance that was

seemingly in the Davis court‘s mind when it spoke, in a case that itself involved a

prevailing FEHA plaintiff, of FEHA ―remedies.‖ But to the extent trial courts‘

Government Code section 12965(b) discretion is bounded by an asymmetrical rule

restricting awards to prevailing defendants (see pt. II, post), it could be said to

reduce the ―remedies‖ available to such prevailing defendants. Nothing in Davis

suggests we had the circumstance of a prevailing defendant, or the question of

whether an asymmetrical rule should apply for awards of ordinary costs, in mind

when we pronounced the quoted dictum. Again, the question in Davis was what

types of costs were to be included in an award, not whether the court exercises

discretion under Government Code section 12965(b) in making an award at all.

We therefore decline to follow, and instead we disapprove, our dictum in Davis‘s

footnote 3. (Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 444, fn. 3.)

Finally, defendant relies on Chavez v. City of Los Angeles, supra, 47 Cal.4th

970 (Chavez). Chavez, however, neither holds nor implies that Government Code

section 12965(b) is not an express exception to Code of Civil Procedure section

1032(b)‘s mandate that the prevailing party be awarded its ordinary court costs.

The plaintiff in Chavez, after extensive litigation, won only a portion of his

FEHA suit and was awarded damages of only $11,500. The trial court denied his

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request for almost $871,000 in attorney fees, relying in part on Code of Civil

Procedure section 1033, subdivision (a), which provides discretion in the award of

costs when the action is not brought as a limited civil case, but the prevailing

party‘s recovery is one that could have been obtained in such a limited case.

(Chavez, supra, 47 Cal.4th at pp. 976–981.)2 We rejected the plaintiff‘s

contention that Government Code section 12965(b)‘s authorization of fees to a

prevailing FEHA party precluded application of Code of Civil Procedure section

1033, concluding instead that the two statutes can be harmonized. We

acknowledged the decisions holding under Government Code section 12965(b)

that a prevailing FEHA plaintiff should, pursuant to the Christiansburg standard,

―ordinarily recover attorney fees unless special circumstances would render the

award unjust‖ (Chavez, at p. 985), but explained that in appropriate circumstances

―the plaintiff‘s failure to take advantage of the time- and cost-saving features of

the limited civil case procedures may be considered a special circumstance that

would render a fee award unjust.‖ (Id. at p. 986.)

Both Government Code section 12965(b) and Code of Civil Procedure

section 1033, subdivision (a) provide the trial court with discretion in awarding

attorney fees to the prevailing party. Chavez holds simply that in exercising its

discretion the court must look both to FEHA policies and, where appropriate, to

Code of Civil Procedure section 1033, subdivision (a)‘s policy of promoting

efficiency in litigation. (Chavez, supra, 47 Cal.4th at pp. 986–988.) Chavez says

nothing about whether Government Code section 12965(b)‘s discretionary

standard constitutes an express exception to Code of Civil Procedure section

2 Attorney fees may be awarded as costs when authorized, inter alia, by

statute. (Code Civ. Proc., § 1033.5, subd. (a)(10)(B).) The jurisdictional limit for

limited civil cases, now and at the time Chavez was decided, is $25,000. (Code

Civ. Proc., § 86; Chavez, supra, 47 Cal.4th at p. 976.)

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1032(b)‘s mandate for award of ordinary costs to the prevailing party. (See also,

Holman v. Altana Pharma US, Inc. (2010) 186 Cal.App.4th 262, 283–285 [where

trial court has discretion under both Gov. Code, § 12965(b) and Code Civ. Proc.,

§ 998, subd. (c)(1) to award prevailing defendant its expert witness fees, court in

determining size of award should consider the policies behind both statutes,

including the policy of encouraging vindication of civil rights embodied in the

Christiansburg standard].)

Our determination that Government Code section 12965(b), as an exception

to Code of Civil Procedure section 1032(b), makes an award of ordinary costs to a

prevailing FEHA party discretionary rather than mandatory is consistent with the

federal court interpretation of similar language in the ADA. As discussed earlier,

the ADA provision giving trial courts discretion to award the prevailing party ―a

reasonable attorney‘s fee, including litigation expenses, and costs,‖ (42 U.S.C.

§ 12205) has been construed to make an exception from the command of rule

54(d) that costs be awarded the prevailing party in a civil action ―[u]nless a federal

statute, these rules, or a court order provides otherwise.‖ (Brown v. Lucky Stores,

Inc., supra, 246 F.3d at p. 1190.) Cost awards have therefore been held governed

by Christiansburg when made in actions under the ADA. (Ibid.)

By contrast, several federal circuit court decisions have, as previously

explained, declined to apply the Christiansburg standard to costs awarded in

actions under Title VII. But those decisions are based at least in part on the

absence of any provision in Title VII making the award of costs discretionary with

the trial court. (See Nat. Organization for Women v. Bank of California, supra,

680 F.2d at p. 1294; Delta Air Lines, Inc. v. Colbert, supra, 692 F.2d at p. 491, fn.

5; Poe, supra, 695 F.2d at p. 1108; Byers v. Dallas Morning News, Inc., supra,

209 F.3d at p. 430.) The FEHA, however, contains such a provision, as does the

ADA. (See Martin v. California Dept. of Veterans Affairs, supra, 560 F.3d at

14

pp. 1052–1053 [distinguishing the phrasing of Title VII and the Rehabilitation Act

from that of the ADA].) Thus, regardless of whether those decisions are correct in

not applying the Christiansburg standard to cost awards in Title VII and

Rehabilitation Act cases, their reasoning is inapplicable here.

―In interpreting California‘s FEHA, California courts often look for guidance

to decisions construing federal antidiscrimination laws, including title VII of the

federal Civil Rights Act of 1964 . . . . But federal court interpretations of Title VII

are helpful in construing the FEHA only when the relevant language of the two

laws is similar.‖ (Chavez, supra, 47 Cal.4th at p. 984.) The relevant Title VII

section (42 U.S.C. § 2000e-5(k) [providing that the trial court, ―in its discretion,

may allow the prevailing party . . . a reasonable attorney‘s fee . . . as part of the

costs . . . .‖]) is similar to [Government Code] section 12965(b) as to attorney fees,

but not as to ordinary court costs. By making fees discretionary as part of the

costs, but not making costs themselves discretionary, the Title VII phrasing

―makes an attorney fee award discretionary‖ but ―does not suggest that ‗the costs‘

are similarly discretionary, but rather that they are a given, to which fees may

attach.‖ (Martin v. California Dept. of Veterans Affairs, supra, 560 F.3d at

p. 1053.) In contrast, both the ADA and FEHA expressly extend the court‘s

discretion to fees and costs, not merely fees as part of the costs. As the relevant

language of Government Code section 12965(b) follows the ADA more closely

than it does Title VII, federal decisions on the former are more persuasive than

those on the latter in resolving the issue at hand.

Having determined that Government Code section 12965(b), as an express

exception to Code of Civil Procedure section 1032(b), governs costs awards in

FEHA actions, providing the trial court with discretion in making such awards to

the prevailing party, we turn to the question of how that discretion should be

exercised when it is the defendant who has prevailed.

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II. Is the Trial Court’s Discretion under Government Code Section

12965(b) Subject to the Christiansburg Standard?

On its face, the language of Government Code section 12965(b) does not

distinguish between awards to FEHA plaintiffs and to FEHA defendants: It

simply provides trial court discretion in making fee and cost awards to the

prevailing ―party.‖ But the legislative history of the bill by which this language

entered our law, and the underlying policy distinctions reflected in that history,

persuade us the Legislature intended trial courts to use the asymmetrical standard

of Christiansburg as to both fees and costs.

FEHA, enacted in 1980, combined the provisions of two predecessor statutes,

the Fair Employment Practices Act (Lab. Code, former § 1410 et seq.) and the

Rumford Fair Housing Act (Health & Saf. Code, former § 35700 et seq.). (Rojo v.

Kliger (1990) 52 Cal.3d 65, 72.) Labor Code former section 1422.2, subdivision

(b), authorizing civil actions alleging discrimination in employment, was the direct

predecessor of Government Code section 12965(b). As amended in 1978, it

provided that in such an action ―the court, in its discretion, may award to the

prevailing party reasonable attorney fees and costs . . . .‖ (Stats. 1978, ch. 1254,

§ 10, p. 4074.) This provision was later recodified in Government Code section

12965(b) without relevant alteration.

The 1978 amendment adding the fees and costs provision to Labor Code

former section 1422.2 was enacted by Assembly Bill No. 1915 (1977–1978 Reg.

Sess.). As introduced on May 5, 1977, the bill would have added a new section,

section 1423.1, to the Labor Code, concerning civil actions by employment

discrimination complainants; in such an action, the trial court would have

discretion to award ―the prevailing party reasonable attorney‘s fees.‖ (Assem. Bill

No. 1915 (1977–1978 Reg. Sess.) as introduced May 7, 1977.) As first amended

in the Assembly on January 9, 1978, the bill instead amended existing provisions

16

on civil actions in former section 1422.2 of the Labor Code by adding, inter alia, a

provision giving the trial court discretion to award ―the prevailing plaintiff

reasonable attorney fees and costs.‖ (Assem. Bill No. 1915 (1977–1978 Reg.

Sess.) as amended Jan. 9, 1978.)

A committee analysis for a hearing on January 11, 1978, noted that the bill,

as amended January 9, differed from federal law under Title VII in one respect:

―Unlike the proposed provision, which limits payment of fees and costs to only the

prevailing plaintiff, federal law allows fees and costs to be awarded to a prevailing

defendant if there is a showing that individuals bringing suit acted in bad faith,

frivolously, or maliciously.‖ (Assem. Com. on Labor, Employment, and

Consumer Affairs, Analysis of Assem. Bill No. 1915 (1977–1978 Reg. Sess.) as

amended Jan. 9, 1978, p. 1 (hereafter the January 11 analysis).) The analysis went

on to ask, rhetorically, ―Would it be more equitable to allow the prevailing party,

rather than just the prevailing plaintiff, to be awarded attorneys fees and costs?‖

(Ibid.)

The bill was next amended a week later, on January 18, 1978, still in the

Assembly. The sole amendment on that day was to change ―plaintiff‖ to ―party.‖

In that form, it was voted unanimously out of committee and summarized in an

analysis for the Assembly as a whole. The analysis explained that the provision

allowing the court to award fees and costs ―is similar to a provision contained in

the Federal Civil Rights Act of 1964 which also allows the court to award

attorneys fees to the prevailing party‖ and further observed that ―[t]he intent of

Congress in allowing the courts to award attorneys fees was to encourage persons

injured by discrimination to seek judicial relief.‖ (Assem. Off. of Research, 3d

reading analysis of Assem. Bill No. 1915 (1977–1978 Reg. Sess.) as amended Jan.

18, 1978, p. 1.) After many additional amendments, none relating to the

measure‘s provisions on fee and cost awards, Assembly Bill No. 1915 (1977–1978

17

Reg. Sess.) was passed by both houses and approved by the Governor, as chapter

1254 of the Statutes of 1978, on September 26, 1978.

Christiansburg was decided on January 23, 1978. The January 11 analysis,

in reciting a federal requirement for award of fees and costs to a defendant that the

suit was brought ―in bad faith, frivolously, or maliciously,‖ could not, therefore,

have been referring to the decision in Christiansburg. Lower court decisions

preceding Christiansburg and cited there had, however, used similar language.

(See Carrion v. Yeshiva University (2nd Cir. 1976) 535 F.2d 722, 727 [a

prevailing Title VII defendant should be awarded fees ―only where the action

brought is found to be unreasonable, frivolous, meritless or vexatious‖]; U.S. Steel

Corp. v. U.S. (3rd Cir. 1975) 519 F.2d 359, 363 [upholding district court denial of

fees to prevailing Title VII defendant on basis that action was not ― ‗unfounded,

meritless, frivolous or vexatiously brought‘ ‖].) The Christiansburg court

approved ―the concept embodied in the language adopted by these two Courts of

Appeals,‖ qualifying that language ―only by pointing out that the term ‗meritless‘

is to be understood as meaning groundless or without foundation, rather than

simply that the plaintiff has ultimately lost his case, and that the term ‗vexatious‘

in no way implies that the plaintiff‘s subjective bad faith is a necessary

prerequisite to a fee award against him.‖ (Christiansburg, supra, 434 U.S. at

p. 421.) The high court continued with its own formulation, requiring ―a finding

that the plaintiff‘s action was frivolous, unreasonable, or without foundation, even

though not brought in subjective bad faith.‖ (Ibid.)

With the distinction that the January 11 analysis‘s formulation included terms

denoting subjective bad faith as well as objective groundlessness, whereas

Christiansburg embraced a standard that does not require bad faith, the January 11

analysis accurately anticipated the forthcoming Christiansburg decision. And by

the time Assembly Bill No. 1915 (1977–1978 Reg. Sess.) was finally passed by

18

the Legislature and signed into law in September of 1978, the decision in

Christiansburg had been available for several months.

To summarize, an early version of the 1978 bill that introduced trial court

discretion to award costs and fees to prevailing employment discrimination parties

(by amendment to Lab. Code, former § 1422.2), would have allowed awards only

to prevailing plaintiffs. In the January 11 analysis, the responsible Assembly

committee was informed that the corresponding federal law allowed awards to

prevailing defendants as well, but only on a restrictive standard of frivolousness.

A week later, the Assembly amended the bill to change ―plaintiff‖ to ―party,‖ and

about a week after that, the high court filed Christiansburg, which approved the

lower courts‘ earlier use of a restrictive standard for fee awards to prevailing Title

VII defendants. The Legislature later passed the bill without further changes to

the fees and costs provision. We find inescapable the inference that the

Legislature, in giving the trial courts discretion to award fees and costs to

prevailing parties in employment discrimination suits, intended that discretion to

be bounded by the Christiansburg rule, or something very close to it.

The Legislature‘s choice of statutory language indicates it intended the same

rule apply to ordinary litigation costs as to attorney fees. Although the history of

the 1978 amendment to Labor Code former section 1422.2 demonstrates a

legislative desire to follow the model of Title VII, and federal courts later held the

Christiansburg standard does not govern ordinary costs in Title VII actions (see,

e.g., Poe, supra, 695 F.2d at p. 1108; Delta Air Lines v. Colbert, supra, 692 F.2d

at pp. 490–491), nothing in the history suggests the Legislature anticipated this

distinction would be drawn. The language the Legislature actually chose,

moreover, differs from the Title VII provision in treating costs and fees in parallel.

As discussed earlier, the fees and costs provision of Government Code section

12965(b) — added by the 1978 amendment to Labor Code former section 1422.2

19

and later recodified in the Government Code as part of FEHA — resembles the

fees and costs provision of the ADA more closely than it does the Title VII fee

provision, and the ADA provision has been construed to establish trial court

discretion, bounded by the Christiansburg standard, over awards of ordinary costs

as well as attorney fees. (Brown v. Lucky Stores, Inc., supra, 246 F.3d at p. 1190.)

In amending California‘s employment antidiscrimination law to authorize

discretionary awards of attorney fees and costs, our Legislature, like Congress

before it, sought ―to encourage persons injured by discrimination to seek judicial

relief.‖ (Assem. Off. of Research, 3d reading analysis of Assem. Bill No. 1915

(1977–1978 Reg. Sess.) as amended Jan. 18, 1978, p. 1.) Defendant argues that

while this policy might be frustrated if attorney fee awards were routinely made to

prevailing defendants, the same cannot be said as to awards of ordinary costs. For

this point, defendant relies on Perez, supra, 111 Cal.App.4th at page 681, wherein

the court (quoting Poe, supra, 695 F.2d at p. 1108) asserted that ― ‗[w]hereas the

magnitude and unpredictability of attorney‘s fees would deter parties with

meritorious claims from litigation, the costs of suit in the traditional sense are

predictable, and, compared to the costs of attorneys‘ fees, small.‘ ‖

It may well be that in FEHA cases, as in civil litigation generally, attorney

fees are typically much larger than ordinary litigation costs. For example, in

Cummings, supra, 11 Cal.App.4th at page 1386, the trial court awarded the

prevailing defendant more than $60,000 in fees, but only about $3,000 in costs.

On the other hand, ordinary costs in FEHA cases can themselves be substantial.

Plaintiff references an unpublished case in which an unsuccessful FEHA plaintiff

was assessed more than $26,000 in costs, as well as a published decision (Hatai v.

Department of Transportation, supra, 214 Cal.App.4th at p. 1295) in which the

trial court awarded costs of almost $31,000 to the prevailing defendants. Even the

court in Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at page

20

135, which declined to apply Christiansburg to costs awards, conceded that ―costs

may in some FEHA cases be considerable.‖3

Though we have no estimate of the average FEHA costs award or of the

average FEHA plaintiff‘s financial resources, we note that the most common basis

for FEHA litigation is wrongful termination of employment. (Blasi and Doherty,

Cal. Employment Discrimination Law and Its Enforcement: The Fair

Employment and Housing Act at 50 (UCLA/Rand Center for Law & Public Policy

2010), p. 40.) Even if FEHA plaintiffs have found new jobs by the time they

pursue litigation, many have probably experienced some period of unemployment.

The Legislature could well have believed the potential for a costs award in the tens

of thousands of dollars would tend to discourage even potentially meritorious suits

by plaintiffs with limited financial resources.

Defendant points out that under Code of Civil Procedure section 1033.5,

subdivision (c)(2) and (3), allowable costs must be both necessary to the conduct

3 One factor contributing to substantial costs in FEHA cases could be the

expense of taking and transcribing depositions, an allowable item under Code of

Civil Procedure section 1033.5, subdivision (a)(3). Allowable defense costs under

this subdivision include the cost of one copy of each deposition taken by the

plaintiff. (Ibid.) A guide to employment litigation practice advises plaintiff‘s

counsel to depose the decisionmakers in a discrimination case on numerous topics,

including the ―identity and demographic characteristics (race, gender, age, etc.) of

other employees subject to the same supervisor(s) or decisionmaker(s) and

whether each of them received the same treatment as plaintiff in respect to hiring,

salary, benefits, shift assignment, performance evaluations, etc.‖ (Chin, Wiseman

et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2014)

¶ 19:538, p. 19-82), and to ―consider deposing each officer or agent of the

corporation with knowledge of the facts of the case.‖ (Id., ¶ 19:539, p. 19-82.)

Defense counsel is advised to depose the plaintiff not only on the details of the

events that form the basis for the claim but also on the plaintiff‘s prior

employment history, any prior charges of discrimination the plaintiff has made,

and details of all damage claims. (Id., ¶ 19:654, pp. 19-101 to 19-102.) Moreover,

the seven-hour limit on depositions in Code of Civil Procedure section 2025.290

does not apply to employment litigation. (Id., subd. (b)(4).)

21

of the litigation and reasonable in amount, and that the court in Knight v. Hayward

Unified School Dist., supra, 132 Cal.App.4th at pages 135–136, held trial courts

have discretion to deny or reduce a cost award to a prevailing FEHA defendant

where a large award would impose undue hardship on the plaintiff. (See also

Holman v. Altana Pharma U.S., Inc., supra, 186 Cal.App.4th at pp. 283–285

[permitting expert witness fees awarded to prevailing FEHA defendant to be

―scaled‖ to the parties‘ relative financial resources].) But as we observed in the

arbitration context, the theoretical possibility of later obtaining a reduction of costs

is at best an imperfect assurance to the employee contemplating a FEHA action:

―[I]f it is possible that the employee will be charged substantial forum costs, it is

an insufficient judicial response to hold that he or she may be able to cancel these

costs at the end of the process through judicial review. Such a system still poses a

significant risk that employees will have to bear large costs to vindicate their

statutory right against workplace discrimination, and therefore chills the exercise

of that right.‖ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000)

24 Cal.4th 83, 110.)

Finally, defendant argues Code of Civil Procedure section 1032(b) also

serves an important public policy, relieving a party whose position was vindicated

in court of the basic costs of litigation, and Government Code section 12965(b)‘s

goal of encouraging potentially meritorious FEHA suits should not be held to

displace that policy. By its terms, however, Code of Civil Procedure section

1032(b) was intended to relieve successful litigants of their costs only where no

statute expressly provides otherwise. In part I of the discussion, ante, we

determined Government Code section 12965(b) established such an express

exception from Code of Civil Procedure section 1032(b)‘s mandate for the award

of costs. In FEHA cases, therefore, the trial court enjoys discretion under

Government Code section 12965(b); our rule for costs awards to prevailing FEHA

22

defendants must reflect the legislative intent as to how that discretion is to be

bounded.

In the end, the language and history of Government Code section 12965(b)

persuade us the Legislature intended a trial court‘s discretion to be exercised in the

same manner for costs as for attorney fees. The statute treats the two in parallel

and without distinction, providing discretion in the award of ―attorney‘s fees and

costs‖ to a prevailing FEHA party. (Gov. Code, § 12965(b).) The history of the

statutory amendment adding this language to Government Code section

12965(b)‘s predecessor shows the Legislature was aware of and embraced the

asymmetrical rule applied in Title VII cases. Although Title VII discretion was

later found to apply only to attorney fees, our Legislature used language providing

discretion as to costs as well, and similar language in the federal ADA has since

been construed as calling for use of Christiansburg‘s asymmetrical standard for

both costs and fees. And while ordinary costs are generally likely to be smaller

than attorney fees, a broader application of Christiansburg is nonetheless

consistent with the legislative policy. In FEHA cases, even ordinary litigation

costs can be substantial, and the possibility of their assessment could significantly

chill the vindication of employees‘ civil rights. Statutory language and legislative

history thus point in the same direction.

For these reasons, we conclude the Christiansburg standard applies to

discretionary awards of both attorney fees and costs to prevailing FEHA parties

under Government Code section 12965(b). To reiterate, under that standard a

prevailing plaintiff should ordinarily receive his or her costs and attorney fees

unless special circumstances would render such an award unjust. (Christiansburg,

supra, 434 U.S. at pp. 416–417.) A prevailing defendant, however, should not be

awarded fees and costs unless the court finds the action was objectively without

foundation when brought, or the plaintiff continued to litigate after it clearly

23

became so. (Id. at pp. 421–422.) We disapprove Perez v. County of Santa Clara

(2003) 111 Cal.App.4th 671, Knight v. Hayward Unified School Dist. (2005) 132

Cal.App.4th 121, and Hatai v. Department of Transportation (2013) 214

Cal.App.4th 1287 to the extent they held ordinary costs were not governed by this

standard.

24

CONCLUSION AND DISPOSITION

The Court of Appeal erred in affirming the trial court‘s award of costs to

defendant despite the absence of any finding the action was objectively

groundless. The judgment of the Court of Appeal is reversed and the matter is

remanded to that court for further proceedings consistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

25

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Williams v. Chino Valley Independent Fire District

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 218 Cal.App.4th 73

Rehearing Granted

__________________________________________________________________________________

Opinion No. S213100

Date Filed: May 4, 2015

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Janet M. Frangie

__________________________________________________________________________________

Counsel:

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.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

David M. deRubertis

The deRubertis Law Firm

4219 Coldwater Canyon Avenue

Studio City, CA 91604

(818) 761-2322

Judith S. Islas

Liebert Cassidy Whitmore

6033 West Century Boulevard, 5th Floor

Los Angeles, CA 90045

(310) 981-2000

Kira L. Klatchko

Best Best & Krieger

74-760 Highway 111, Suite 200

Indian Wells, CA 92210

(760) 568-2611

2