1.MOTION TO STRIKE OR TAX COSTS
Plaintiff?s?Motion to Tax Costs is Granted.?
The Motion to Tax, while late-filed, was permitted per the Court?s order of 8/23/17, on Plaintiff?s ex parte seeking leave to permit the late filing. The Motion has thus been considered on the merits.
A prevailing employer in a FEHA action should ordinarily not be awarded fees and costs unless the plaintiff?s claims were frivolous, unreasonable, without foundation or brought in bad faith. (Williams v. Chino Valley Independent Fire District?(2015) 61 Cal.4th?97, 99-100.) But here, Defendant made a reasonable C.C.P. ? 998 offer, for $151,000, plus Plaintiff?s reasonable fees and costs. (Low Decl. ? 4 Ex. A.) Plaintiff did not accept. Trial then resulted in a defense verdict.
In light of the recent decision in?Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (Cal. Ct. App., Jan. 2, 2018, No. E061677) 2018 WL 259003, there is a split of authority as to the extent to which ? 998 permits a prevailing defendant on a nonfrivolous FEHA claim to recover post-offer costs. (Compare?Arave, supra at 33-37 with?Holman v. Altana Pharma US, Inc.?(2010) 186 Cal.App.4th 262, 277 and?Sviridov v. City of San Diego?(2017) 14 Cal.App.5th 514, 520-521.)? But here, in either event, the Court is now persuaded that no costs should be imposed on Plaintiff, as she has demonstrated that she is entirely unable to pay any sum that may be awarded to Defendants for such costs. (See Egbuta Decl., ?? 3-9;?Seever v. Copley Press, Inc.?(2006) 141 Cal.App.4th 1550, 1561-62; and?Villanueva v. City Of Colton?(2008) 160 Cal.App.4th 1188, 1202-1204 [public policy behind FEHA would not be served by devastating plaintiffs financially because a few of them file frivolous claims.) The Motion to Tax Costs is thus Granted; no costs are imposed upon Plaintiff here.
Defendant?s Evidentiary Objections are Sustained for Obj. Nos. 10-13, and 52 [relevance], but otherwise Overruled.
Defendant is to give notice of this ruling.