Williams v. Chino Valley Independent Fire District: Prevailing FEHA Defendants Are Not Entitled to Recover Costs Unless the Plaintiff’s Claims Are Frivolous
By: Ashley Tate, The Maloney Firm, APC
On May 4, 2015, The California Supreme Court held in Williams v. Chino Valley Independent Fire District, S213100 5/4/15, that a prevailing defendant in a FEHA case should not be awarded litigation costs unless the court finds the action lacked merit. In contrast, prevailing plaintiffs can and ordinarily should receive their costs and attorneys fees. In Williams, the plaintiff Loring Winn Williams sued defendant Chino Valley Independent Fire District for employment discrimination in violation of the Fair Employment and Housing Act, “FEHA.” The trial court granted summary judgment for the defendant employer, and awarded the defendant its court costs. The plaintiff employee appealed, contending that because plaintiff’s action was not frivolous, unreasonable or groundless, the defendant should not have been awarded its costs.
When a defendant in a FEHA case succeeds against a plaintiff’s non-frivolous claims, can the court order the plaintiff to pay the defendant’s costs of the litigation? In short, no.
Code of Civil Procedure section 1032 guarantees prevailing parties in civil litigation awards of the costs expended in the litigation, “[e]xcept as otherwise expressly provided by statute.” The costs 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.
The questions in Williams were (1) Is Government Code section 12965(b) an express exception to the general mandate of Code of Civil Procedure section 1032(b) for courts to award fees to prevailing parties? and (2) Is the trial court’s discretion under Section 12965(b) limited when it comes to prevailing defendants? Yes and yes.
FEHA provides an exception to the general rule of Section 1032. Government Code section 12965(b) provides for private actions to enforce the provisions of FEHA, and 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.” (Emphasis added.)
The Supreme Court in Williams determined after a detailed analysis that Government Code section 12965 is in fact an express exception to CCP 1032(b), and it governs costs awards in FEHA actions. This provides the trial court with discretion in making such awards to the prevailing party. But the discretion is much more limited when the prevailing party is the defendant.
The Court analyzed legislative history and case law, concluding that the assymmetrical standard set forth in the 1978 case Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties. The Court in Christiansburg held that a prevailing defendant receives its attorneys’ fees only if the plaintiff’s action was objectively groundless. Id. The asymmetrical standard set forth in Christiansburg entitles prevailing plaintiffs to attorneys’ fees generally but allows prevailing defendants awards of their attorneys’ fees only when the plaintiffs’ claims were frivolous. Under Williams, the Christiansburg standard applies not only to attorneys’ fees, but also to other litigation costs.
In sum, a prevailing plaintiff in a FEHA case will ordinarily be awarded his or her attorneys’ fees and costs, but a prevailing defendant is not entitled to either unless the court finds the plaintiff’s action was frivolous. This is good news for FEHA plaintiffs, and bad news for the defendants.
The Maloney Firm, APC is a full service law firm based in El Segundo, California. The professionals at The Maloney Firm focus on providing clients with efficient and effective service in business disputes and employment litigation. www.maloneyfirm.com
I Could Have Sworn I Heard That Before: California Court of Appeal Holds That Legal Fee Invoices Are Privileged Communications.
By: Patrick M. Maloney and Carl I. S. Mueller of The Maloney Firm, APC
The Second Appellate District recently ruled that legal fee invoices fall within the attorney-client privilege as established in Cal. Evidence Code § 952. When said out loud, it seems obvious. But, according to County of Los Angeles Board of Supervisors v. The Superior Court of Los Angeles, case no. B257230, filed April 13, 2015, the question had not previously been resolved. In addressing the issue, the court noted that “while several cases have touched on the fringes of this question, none have squarely decided it.”
The case arose from a request under the California Public Records Act, wherein the ACLU attempted to obtain legal fee invoices, among other documents, from the Los Angeles County Board related to nine different lawsuits, “brought by inmates involving alleged jail violence,”. Six of the lawsuits were ongoing. The ACLU wanted to determine whether those lawsuits, defended by private firms on the taxpayers’ dime, were being litigated efficiently. The County Board agreed to produce redacted invoices for the concluded matters, but refused to produce the legal fee invoices for the ongoing disputes. So, the ACLU filed a petition for a writ of mandate in the Los Angeles Superior Court to compel the County Board to “disclose the requested records for all nine lawsuits.”
In what the appellate court referred to as “a thoughtful decision,” the trial court granted the petition, ordering the County Board to produce the legal fee invoices. In reaching its decision, the trial court cited the County Board’s failure to produce any “actual evidence concerning the contents of the billing statements, including whether they were produced for a litigation related
The County Board challenged the trial court’s ruling via a petition for writ of mandate to the appellate court. On appeal, the crux of the legal dispute fell to the following language defining a confidential communication within Evidence Code § 952:
Information transmitted between a client and his or her lawyer in the course of that relationship and in confidence […], and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Emphasis added).
The ACLU argued the phrase “and legal opinion” required that to qualify as protected, confidential, and privileged, the invoices needed to contain a legal opinion. However, the County Board argued the nature of the confidential communications as between an attorney and client created the privileged status, and the appellate court agreed. The court based this reading on historical context, and reasoned that any other reading created the absurd result of any confidential communication lacking legal opinion losing its privileged status.
Overall, the court once again chose to strengthen and uphold the sanctity of statutory privilege, and practitioners now only need to point to this decision when opposing a motion to compel production of legal fee invoices. However, as the appellate court noted, when prosecuting a request for attorneys’ fees, clients may decide to waive the privilege in relation to those legal fee invoices in order to enhance their potential for recovery.
The Maloney Firm, APC provides expertise to clients in relation to legal fee disputes and professional malpractice claims on either side of the aisle. Additionally, the professionals at The Maloney Firm, APC focus on providing clients with efficient and effective service in business disputes and employment litigation. www.maloneyfirm.com
You won a judgment for your client. Now what? This complimentary MCLE program hosted by The Maloney Firm on May 12th will discuss tools attorneys can use for enforcing a California civil judgment. Space is limited. Please RSVP by calling 310.540.1505 or emailing firstname.lastname@example.org.
Two often over-looked, key aspects of the mediation process are selection of the mediator and preparation for the mediation. This complimentary MCLE program sponsored by ADR Services on April 2nd will give practical tips on the key qualities of a mediator to consider in the selection process and the core elements of mediation preparation. Space is limited. Please RSVP by calling 310.540.1505 or emailing email@example.com.
When does it become your ethical or legal obligation to safeguard information? This complimentary MCLE program on March 18th discusses the security challenges and rewards of various technologies and some best practices for protecting private data in a world of rapidly spreading information technology. Space is limited. Please RSVP by calling 310.540.1505 or emailing firstname.lastname@example.org.
Congratulations to Patrick M. Maloney for being named to the 2015 Southern California Super Lawyers list, an honor bestowed upon only 5% of attorneys. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
This program will explore how bias creeps into dispute resolution using an arbitrator’s comments from a recent hearing. Patrick Maloney and Jayesh Patel will analyze the rules that require lawyers, jurors, arbitrators, and judges to avoid bias in the context of the diverse population of California. Space is limited. Please RSVP by calling 310.540.1505 or emailing email@example.com.
This presentation has been approved by the State Bar of California for 1.0 hour of MCLE credit, including 1.0 hour of Elimination of Bias.
Patrick Maloney is featured this morning on The South Bay Show discussing “Why an Attorney is Important for Your Business.” This weekly live radio show is sponsored by the Manhattan Beach Chamber of Commerce.
The Maloney Firm will be hosting the South Bay MCLE Series, offering the following, complimentary lunchtime MCLE Programs over the coming months:
September 4 – Preparing and Reading Legal Fee Invoices
October 1 – Preserving the Record for Appeal
November 7 – IP Litigation for Non-IP Attorneys
The Bottom Line, a publication of the California State Bar Law Practice Management and Technology Section, published in its June issue an article by Patrick Maloney on attorney client fee arbitrations: California’s Mandatory Fee Arbitration Act Benefits Attorneys by Providing an Efficient Mechanism to Resolve Legal Fee Disputes