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



                                          1
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



                                          2
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).




                                            3
     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

                                            4
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

                                              5
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

                                             6
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

                                          7
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


                                           9
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.)

                                           10
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

                                          11
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

                                          12
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.)

                                         13
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.

                                           15
       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




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