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Date: 11-16-2018

Case Style: Felix Huerta v. Kava Holdings, Inc.

Case Number: B277164, B281303

Judge: Rubin, Acting P.J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Carney R. Shegerian and Jill McDonell

Defendant's Attorney: Peter Abrahams, Bradley S. Pauley, Dean A. Bochner, Stokes Wagner, Arch Y. Stokes, Peter B. Maretz, Diana L. Dowell and Adam L. Parry

Description: Defendant Kava Holdings, Inc., dba Hotel Bel-Air
(defendant) terminated two restaurant servers after they were
involved in an altercation during work. One of the fired
employees, plaintiff Felix Huerta, sued defendant on a variety of
legal theories, most of which were dismissed before or during
trial. The trial court granted defendant’s motion for nonsuit as to
plaintiff’s claim for retaliation under the Fair Employment and
Housing Act (FEHA; Gov. Code, § 12900 et seq.), and allowed the
jury to decide plaintiff’s FEHA causes of action for harassment
based on a hostile work environment, discrimination, and failure
to prevent harassment and/or discrimination. The jury returned
a verdict in defendant’s favor.
Postjudgment, the trial court found plaintiff’s action was
not frivolous and denied defendant’s motion for attorney fees,
expert fees and costs under Government Code section 12965,
subdivision (b) (section 12965(b)). Based on plaintiff’s rejection of
defendant’s pretrial Code of Civil Procedure section 9981
settlement offer, however, the trial court awarded defendant
$50,000 in costs and expert witness fees under that statute.
In the unpublished portion of the opinion, we affirm the
judgment. The trial court properly granted nonsuit on plaintiff’s
FEHA retaliation claim and did not prejudicially limit his
counsel’s closing argument.
1 With the exception of section 12965(b), all undesignated
statutory references will be to the Code of Civil Procedure.
3
In the published portion of the opinion, we note that
effective January 1, 2019, section 998 will have no application to
costs and attorney and expert witness fees in a FEHA action
unless the lawsuit is found to be “frivolous, unreasonable, or
groundless when brought, or the plaintiff continued to litigate
after it clearly became so.”2 For litigation that predates the
application of the amended version of section 12965(b), we hold
section 998 does not apply to nonfrivolous FEHA actions and
reverse the order awarding defendant costs and expert witness
fees pursuant to that statute. (Arave v. Merrill Lynch, Pierce,
Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525 (Arave).)
I. FACTUAL AND PROCEDURAL BACKGROUND3
A. The Altercation and Plaintiff’s Termination
The precipitating event triggering this lawsuit occurred on
December 21, 2013, and was captured by several video
surveillance cameras. Plaintiff and Atanas Kolev were working
the same shift as front servers in one of the hotel’s restaurants.
All the guests had departed, and the restaurant staff was
engaged in “side work,” i.e., putting items away and preparing for
the next shift.
2 Section 12965(b), as amended by Statutes 2018, chapter
955, section 5.
3 The jury trial spanned more than three weeks; but on
appeal, plaintiff raises only two issues related to the conduct of
the trial itself. Accordingly, this portion of the opinion will focus
on evidence relevant to the retaliation claim, with an emphasis
on testimony favorable to plaintiff. We will not address damages
or expert witness testimony or delve with detail into the evidence
that pertained only to the harassment and discrimination causes
of action.
4
As of that date, Kolev had worked for defendant for
approximately two years. He was born in Bulgaria and moved to
the United States in 2003. Plaintiff had been with defendant
longer. He was born in Mexico and came to California in 1988,
when he was 15 years old.
Kolev described the altercation as follows: He felt plaintiff
routinely shirked side work duties. This particular evening,
angry because plaintiff kept “disappearing” during the side work,
Kolev confronted him. Plaintiff responded by calling Kolev “a
[expletive] loser.”
4 In his own words, Kolev became “angry” and
“overreacted.” He and plaintiff walked toward each other,
talking loudly. Kolev said they should take their argument
outside and then he pushed plaintiff.
According to plaintiff, when Kolev swore at him that
evening, he called Kolev a loser, but did not use profanity.
Plaintiff did not think he and Kolev were shouting at each other.
Kolev started across the room and plaintiff walked toward him,
not backing down. Kolev grabbed plaintiff by the throat.
Plaintiff told him, “ ‘You’re done. I’m going to report you right
now.’ ”
At that point, other employees intervened. The two men
walked away from each other.
Plaintiff immediately reported the incident to the manager
on duty, Michael Pekarsky. Plaintiff described the confrontation,
but did not state Kolev previously harassed or belittled him
because of plaintiff’s race or national origin. Plaintiff did not tell
4 It was common knowledge among the restaurant staff that
Kolev’s wife left him. Kolev interpreted the “loser” remark as
referring to that fact.
5
Pekarsky the incident had anything to do with race or national
origin.
At Pekarsky’s request, plaintiff stayed in the office and
prepared a written statement on the computer. Plaintiff’s signed
statement read in full:
I still have tables and doing some closing
paper work, and went to deliver the full
bottles of wine to the main bar and when I
was coming back, then [Kolev] started asking
me what I’ve been doing all night. I told him
I’ve been taking care of my tables, because I
got most of the late tables inside. I told him I
was taking the bottles and doing whatever
side work I can. Then he started cursing me
calling, “you piece of [expletive]”. He was
walking toward the kitchen and cursing at me
loud. Then I say “you’re a loser” then he came
back to me and I asked him “what are you
going to do?”. And he grabbed me by the neck.
Then I told him I was going to report it [to] a
manager and to security as well. But then he
said lets [sic] go and finish this @ the parking
lot, I just walk away and reported to mike the
manager. . . [.] ps this is not the first time
th[at] he threatened me. . [. . I] have more
witnesses from other times using a very
offensive verbage [sic]. . calling me worthless
useless piece of [expletive].
In the meantime, Pekarsky informed hotel security about
the situation and located Kolev in the kitchen. Kolev also
6
provided a statement. Security separately escorted the two men
off the property. Pekarsky suspended both men pending further
investigation.
The investigation included obtaining written statements
from other employees still in the restaurant when the
confrontation occurred. None of the statements indicated Kolev
bullied or taunted plaintiff because he was Hispanic or from
Mexico.
According to Denise Flanders, defendant’s general
manager, the Human Resources (HR) department followed up
with plaintiff concerning the “p.s.” in plaintiffs statement to
determine the nature of Kolev’s previous threats. Plaintiff was
not responsive to the efforts.
Flanders, HR director Jason Brown, and restaurant
manager Adam Crocini collectively made the decision to
terminate both men on December 24, 2013, for violating the
“Pledge,” defendant’s code of conduct.5 They agreed plaintiff was
5 The Pledge is a written contract signed by every employee.
Plaintiff received a copy of the Pledge and underwent training as
to its requirements. The Pledge advises that certain
unacceptable conduct, e.g., “[e]ngaging in disorderly conduct,
including fighting, threats of violence, physically or verbally
abusing another team member, . . . or using obscene language or
gestures in the [h]otel” may result in immediate termination
without any intervening discipline.
The Pledge encourages employees “to meet and discuss
suggestions, problems or concerns with management” and
emphasizes its open door policy. Employees are required to
immediately report harassment to management or HR.
Retaliation for such reporting is prohibited.
7
a conscientious and respected employee, but found he engaged in
disorderly conduct that warranted immediate termination.
B. Post-Termination Reports of Harassment
Within days of plaintiff’s termination, three coworkers―all
Hispanic―complained to the HR director that plaintiff had been
the victim of sustained harassment by Kolev because of his race
and national origin. Before the fight, Kolev harassed other
Hispanic employees and made racist comments, but plaintiff bore
the brunt of Kolev’s verbal attacks. The HR director checked the
department’s files and confirmed there had not been any previous
complaints concerning Kolev. The HR director also spoke to the
restaurant’s managers, who said they had not observed any such
behavior before plaintiff’s termination.
C. The Complaint
Plaintiff initiated this action on August 8, 2014. The
original complaint―although considerably narrowed in scope by
the time the jury began deliberations―remained the operative
pleading. Plaintiff sued the hotel and several management
individuals. The complaint included 11 causes of action and
sought general and punitive damages based on various legal
theories. Defendant was named in every cause of action; the
individuals were named only in the cause of action for intentional
infliction of emotional distress.
Plaintiff alleged six FEHA causes of action. Five were
based on race, national origin, and ancestry (collectively, race)6:
discrimination, harassment, failure to present discrimination and
6 “Race” was the collective designation used by the trial court
and counsel for these three factors. For consistency, we adopt
this designation as well.
8
harassment, retaliation for complaining of discrimination or
harassment, and wrongful termination in violation of public
policy. In the sixth FEHA cause of action, plaintiff alleged he
was retaliated against for taking a medical leave under the
California Family Rights Act. Plaintiff alleged three factual
predicates for the FEHA race-based claims: harassment by
Kolev; harassment and discrimination by various supervisors,
unrelated to Kolev’s conduct; and discrimination as a substantial
motivating factor in the decision to terminate plaintiff’s
employment.
Plaintiff also sought damages based on breach of an
implied contract that he could be fired only for cause; defendant’s
negligently hiring and retaining supervisors who harassed and
retaliated against him; and defendant’s negligent supervision of
its employees, permitting them to harass plaintiff.
D. Pretrial Proceedings
All the individuals plaintiff sued were dismissed before
trial, either voluntarily or by summary judgment. The trial court
granted summary adjudication for defendant on plaintiff’s causes
of action for breach of implied contract to terminate only for
cause, negligent hiring, and retaliation for taking CFRA leave.
On April 27, 2016, shortly before the trial began, defendant
served plaintiff with a section 998 settlement offer in the sum of
$375,000, with the litigants bearing their own attorney fees,
costs, and litigation expenses. Plaintiff did not accept the offer,
but countered with his own section 998 demand in the sum of
$1.55 million.
E. Jury Trial
The matter proceeded to a jury trial. Trial evidence
included the following:
9
Before December 21, 2013, several coworkers urged
plaintiff to report Kolev’s ongoing verbal harassment to HR. The
coworkers did not report Kolev’s harassment themselves because
they believed plaintiff should take the responsibility.
Plaintiff testified he did not report the harassment
“because sometimes the managers [were] around, and they didn’t
do anything about it.” He thought Pekarsky, when he was a
restaurant captain, overheard some of Kolev’s comments, but did
not respond and actually might have laughed at them on
occasion. Plaintiff also recalled Kolev’s making a comment about
“ ‘[expletive] Mexicans, can’t speak English’ ” during a staff
meeting that Pekarsky and the restaurant manager attended,
but was “not sure every manager heard that.”
Plaintiff testified Kolev “would just out of the blue come
towards” him, cursing at him and calling him a “ ‘[expletive]
Mexican.’ ” He would say, “ ‘You [expletive] Mexican, get out of
my face. I don’t like you. I hate you. Don’t talk to me,’ just for
no reason.” Kolev also said he had been trained to kill while
serving in the Bulgarian army, so plaintiff should not confront or
fight him.
Kolev denied he discriminated against plaintiff or anyone
else based on race. He was “antiracist.” He characterized the
exchanges as workplace camaraderie and insisted there was
“nothing extreme or discriminatory . . . nothing that was meant
to harm anybody. [¶] They were calling me that I’m a terrorist,
and I have seven wives and a goat. I . . . understood the nature of
the jokes. It was . . . joking.” Kolev made fun of the way plaintiff
10
spoke, but said he was not the only employee who did so.7 Kolev
was also rude to coworkers who were not Hispanic.
At the close of evidence, plaintiff dismissed all causes of
action except the FEHA claims for retaliation, harassment,
discrimination, and failure to prevent harassment or
discrimination. Defendant moved for nonsuit. The trial court
granted a nonsuit only as to the retaliation claim, finding nothing
in plaintiff’s written statement or interviews with HR that could
“be construed by a reasonable trier of fact [as] reporting a
protected activity.”8 Although the trial court determined the
evidence to support plaintiff’s remaining FEHA causes of action
(harassment, discrimination, and failure to prevent harassment
or discrimination) was suspect, it was “strong enough . . . to go to
the jury.” The jury’s verdict on all remaining causes of action
was in defendant’s favor.
F. Postjudgment Proceedings
As the prevailing party in a FEHA action, defendant sought
costs, expert witness fees, and attorney fees pursuant to section
12965(b). As the prevailing party that obtained a result more
favorable than the sum it was willing to settle for, defendant
sought the same costs and fees pursuant to section 998.
7 Plaintiff spoke English with an accent, talked rapidly, and
was sometimes difficult to understand.
8 The trial court granted defendant’s nonsuit motion on the
retaliation cause of action on June 9, 2016. The trial court
minutes for June 10, 2016 mistakenly report defendant’s motion
for nonsuit as to retaliation was denied; on that date, the trial
court denied defendant’s motion for nonsuit on the discrimination
cause of action.
11
Defendant’s memorandum of costs was in the total amount of
$111,242.83, which included $47,322.50 in expert witness fees.
Defendant asked for $1,318,955 in attorney fees.
Plaintiff moved to tax and/or strike defendant’s costs,
arguing section 12965(b) precluded an award of costs to
defendant as prevailing party unless the trial court determined
plaintiff’s action was “ ‘ “unreasonable, frivolous, meritless or
vexatious.” ’ ” (Cummings v. Benco Building Services (1992) 11
Cal.App.4th 1383, 1387, quoting Christiansburg Garment Co. v
E. E. O. C. (1978) 434 U.S. 412, 421 (Christiansburg).) Plaintiff
opposed the request for attorney fees on the same basis.
Almost six months of briefing and collateral motions
followed. During this period, defendant submitted a revised
memorandum of costs in the amount of $98,863.59. This
memorandum eliminated costs incurred before service of the
section 998 offer. After a hearing, the trial court took the
motions under submission and issued a detailed written ruling
one month later.
The trial court first analyzed each item of claimed postsettlement
offer ordinary costs (§ 1033.5)9 and determined the
requested amounts were necessary and reasonable. Nonetheless,
finding plaintiff’s action was not frivolous, the trial court
determined section 12965(b) precluded awarding defendant
ordinary costs, expert witness fees, and attorney fees.
The trial court then considered each category of postsettlement
offer costs and analyzed whether they could be
9 These costs included jury fees, deposition costs, service of
process fees, expert witness fees, models/blowups/exhibit
photocopies, and court reporter fees.
12
awarded based on the rejected section 998 settlement offer. The
trial court concluded defendant was not entitled to postoffer
attorney fees because the action was not frivolous. It did,
however, award defendant its postoffer ordinary costs and expert
witness fees pursuant to section 998. Although the trial court
previously found defendant’s incurred costs to be necessary and
reasonable, the trial court reduced the award to $50,000 based on
plaintiff’s economic circumstances.
Plaintiff timely appealed from the judgment and the
postjudgment order awarding defendant costs and expert witness
fees pursuant to section 998. We ordered the appeals
consolidated for all purposes.
II. DISCUSSION
A. Nonsuit Was Properly Granted on the
Retaliation Cause of Action
FEHA prohibits workplace harassment and discrimination
based on a number of factors, including race, national origin, and
ancestry. (Gov. Code, § 12940, subd. (a).) An employee who
reports a FEHA violation engages in “protected activity for which
[he can]not be subjected to retaliation.” (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); Gov. Code,
§ 12940, subd. (h).)
An employee’s cause of action against his employer for
unlawful retaliation under FEHA includes the following
elements: (1) the employee engaged in a FEHA-protected
activity; (2) the employer subjected plaintiff to an “adverse
employment action;” and (3) the employee’s protected activity
“was a substantial motivating reason for” the employer’s action.
(CACI No. 2505; Yanowitz, supra, 36 Cal.4th at p. 1042.) If a
trial court determines as a matter of law that the plaintiff’s
13
evidence of retaliation is insufficient to permit the cause of action
to go to the jury, nonsuit is appropriate. (Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 291 (Nally).)
On appeal, we review this issue de novo (Saunders v.
Taylor (1996) 42 Cal.App.4th 1538, 1542). We affirm if our
independent review leads us also to conclude as a matter of law
that no trier of fact could find plaintiff was terminated in
retaliation for reporting workplace harassment or discrimination.
(Nally, supra, 47 Cal.3d at p. 291.) In determining whether a
nonsuit should be affirmed, we accept plaintiff’s evidence as true,
indulge “every legitimate inference” from it, and disregard
conflicting evidence. (Ibid.)
Under these standards, we find as a matter of law
plaintiff’s evidence fell short of satisfying the threshold
requirement that plaintiff engaged in protected activity. Plaintiff
concedes he did not “report the assault explicitly as racially
motivated.” Nevertheless, he argues there was enough evidence
of Kolev’s bigotry and abuse to permit the jury to decide whether
the December 21, 2013 argument “had a racial component and
was related to race discrimination and/or harassment.” Yes,
there was: This was a primary theme in plaintiff’s closing
argument (see, post, fn. 10). Evidence that Kolev was bigoted and
abused plaintiff based on plaintiff’s race was relevant to the
FEHA causes of action presented to the jury (harassment,
discrimination, and the failure to prevent either), as was evidence
that the altercation itself between the two men was racially
motivated.
The issue before us, however, is different. In reviewing
whether defendant was entitled to judgment as a matter of law
on the retaliation claim, the question is whether plaintiff’s report
14
of harassment or discrimination based on race was a “substantial
motivating factor” in the decision to terminate him. (Harris v.
City of Santa Monica (2013) 56 Cal.4th 203, 232.) We begin by
analyzing whether plaintiff engaged in FEHA-protected activity,
i.e., did he protest and report a FEHA violation that occurred in
the workplace?
On the night of the incident, plaintiff did not complain to
Pekarsky that Kolev harassed him based on race, national origin,
or ancestry. Rather, he reported the verbal and physical assault
that occurred minutes earlier, without mentioning it was the
latest in a series of race-based run-ins. Witnesses provided
statements concerning only the evening’s confrontation. No one
stepped forward to complain of ongoing harassment by Kolev. At
trial, plaintiff testified he intentionally never reported Kolev’s
harassment; the record confirmed he never complained of it
before his termination.
Plaintiff was fired for engaging in the confrontation with
Kolev, not for reporting it. The confrontation, as described to
defendant’s decision makers, violated defendant’s code of conduct,
not FEHA.
Although facts concerning Kolev’s poor treatment of
Hispanic coworkers subsequently came to light, neither plaintiff
nor the other employees who submitted statements to Pekarsky
following the altercation―but before plaintiff’s termination―
referred to race. The statements pegged Kolev as a crass,
unpleasant coworker, but did not assert he harassed Hispanic
coworkers based on race.
Plaintiff presented no evidence that Flanders, Brown or
Crocini received reports or were aware of racist conduct by Kolev
before they decided to terminate both employees. All three
15
decision makers testified they terminated plaintiff based solely
on his admitted role in the altercation with Kolev, which
constituted a violation of defendant’s code of conduct.
We accept as true testimony that Pekarsky and plaintiff’s
coworkers heard Kolev use profanity and never escalated the
issue to HR, although they should have. But that testimony was
presented in the context of Kolev’s use of foul language that did
not include racial slurs. Even assuming foul language in the
workplace that does not include ethnic denigration constitutes a
FEHA violation, the evidence was undisputed plaintiff never
reported it. Without evidence that plaintiff reported a FEHA
violation―i.e., that plaintiff engaged in protected activity― as a
matter of law, plaintiff cannot prevail on a FEHA retaliation
claim. (Nally, supra, 47 Cal.3d at p. 291.)
B. Plaintiff Forfeited His Challenge to the Trial
Court’s Ruling Concerning Closing Argument
1. Overview
Plaintiff next argues the trial court prejudicially erred by
limiting his counsel’s closing argument, “preclud[ing] the jury
from holding defendant liable . . . for Kolev’s harassing conduct.”
Plaintiff asserts, “Kolev’s assault on December 21, 2016 was the
strongest evidence supporting the hotel’s liability for its failure to
take corrective action. By not being able to consider this
evidence, the jury was precluded from properly assigning the
hotel liability. Therefore, the [t]rial [c]ourt’s erroneous limitation
of the scope of Huerta’s closing argument was prejudicial and
reversible error.”
The issue arose during the jury instruction discussion
between the trial court and counsel. Counsel agreed CACI No.
2521A was appropriate. That instruction advises jurors plaintiff
16
has the burden to prove, among other elements, he “was
subjected to unwanted harassing conduct because of his race” and
“the harassing conduct was severe or persuasive.”
The trial court and counsel then turned to CACI No. 2523,
which provides a nonexhaustive list of conduct that qualifies as
harassment within the context of a FEHA action. Counsel agreed
the trial court should instruct with option (a) that “verbal
harassment, such as obscene language, demeaning comments,
slurs, or threats” constitutes harassing conduct. Plaintiff also
wanted the trial court to give option (b), which provides that
harassing conduct includes “physical harassment such as
unwanted touching, assault, or physical interference with normal
work or movement.” Defendant disagreed, noting the Kolev was
fired the first time he touched plaintiff.
After an exchange with counsel, the trial court agreed to
give the physical harassment language as plaintiff requested, but
did not want jurors misled by an attempt “to bootstrap this in
and make a harassment cause of action based on the December
21st conduct, [for] which the employer did take action.”
Plaintiff’s counsel assured the trial court he was “not saying . . .
[the confrontation] itself is harassment, but [wanted to argue
that] Kolev’s motivation in targeting [plaintiff] that day . . . was
based on his racial animus as evidenced by the prior harassing
conduct.” The trial court responded, “You can argue that. I don’t
have any issue,” and then added, “I’m not going to allow you to
say, ‘Oh, [the confrontation] is physical harassment that
[defendant] didn’t do anything about.’ Because [it] clearly did.
[¶] And if you’re going to argue that, I’m not going to give [the
physical harassment instruction].” Plaintiff’s counsel replied
simply, “Understood, Your Honor.”
17
No more was said on the subject. A recurring theme in
plaintiff’s closing argument was that but for Kolev’s ongoing
racially-motivated verbal harassment, the December 21, 2013
confrontation never would have occurred, and plaintiff would not
have been terminated.
10
2. Analysis
We never presume trial court error. (Keyes v. Bowen (2010)
189 Cal.App.4th 647, 655.) Reversal is warranted only where
there has been a miscarriage of justice. (Cal. Const., art. VI,
§ 13.) To be entitled to a reversal, an appellant must
demonstrate trial court error and prejudice as the result of the
error. (Widson v. International Harvester Co. (1984) 153
10 The following excerpts from plaintiff’s counsel’s closing
argument illustrate the point:
1. “Regardless how you slice the pie of reasons . . . that
[plaintiff] was terminated, if racial harassment and race bias
hadn’t come before December 21st, 2013, if it had not existed in
that workplace, December 21st, 2013 does not ever occur. There
is no incident as defendant calls it, or assault and battery as we
call it.”
2. “But for [plaintiff’s] race, nothing ever occurs on December
21st.”
3. “[T]hat event from December 21st, 2013 never occurs
without [plaintiff] having the previous harassment and the
mistreatment by Mr. Kolev, the[] server [the hotel] kept on the
floor for over a year . . . [¶] . . . But if you look at the . . . buildup
of the acrimony [by plaintiff] as he’s being harassed for a yearplus
as of December 2013, what explodes on December 21st . . .
never happen[s].”
4. “ ‘Mexican trash.’ . . . Not even ten days after [the hotel]
fired [plaintiff] . . . they knew that the person who had caused the
assault and battery had used terms like this . . . .”
18
Cal.App.3d 45, 53.) Additionally, an appellant must support his
challenge with cogent argument, citations to relevant authorities,
and accurate references to the record: “[C]iting cases without any
discussion of their application to the present case results in
forfeiture . . . [and w]e are not required to examine undeveloped
claims or to supply arguments for the litigants.” (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen); Cal. Rules of
Court, rule 8.204.) As a general rule, an appellant who fails to
object in the trial court forfeits the issue on appeal. (Gray1 CPB,
LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 897
(Gray1).)
As noted, plaintiff did not object in the trial court to the
exchange or to the court’s decision to give the instruction he
requested, provided plaintiff’s counsel did not argue to the jury
that the one instance of physical contact by Kolev constituted
actionable, i.e., severe or pervasive, harassment under FEHA.
Plaintiff’s counsel did not protest that the ruling unfairly limited
his closing argument or would preclude the jury from finding that
Kolev harassed plaintiff based on race.
On appeal, however, plaintiff cites section 647 and asserts
this issue is preserved because no objection is required when the
trial court gives, refuses to give, or modifies a jury instruction.
But the trial court gave the standard CACI No. 2523 language
just as plaintiff requested; there was no refusal or modification.
A plaintiff is not aggrieved when the trial court gives an
instruction he requested. Section 647 has no application; and
without a timely objection in the trial court, the issue is forfeited
on this ground. (Gray1, supra, 233 Cal.App.4th at p. 897.)
Additionally, plaintiff has not suggested in what manner
his closing arguments were unfairly limited. His contentions on
19
appeal are conclusory and lack citations to the record or to
relevant authority. The issues are forfeited on this basis as well.
(Allen, supra, 234 Cal.App.4th at p. 52.)
C. Section 998 Does Not Apply to This
Nonfrivolous FEHA Action
1. Overview
In awarding defendant its ordinary costs and expert
witness fees pursuant to section 998, but reducing the award
from a sum accepted as necessary and reasonable to an amount
that reflected plaintiff’s limited economic resources, the trial
court relied on Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th
1550 (Seever) and Holman v. Altana Pharma US, Inc. (2010)
186 Cal.App.4th 262 (Holman). (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Both Seever and Holman predate Williams v. Chino Valley
Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams), where the
Supreme Court held section 12965(b), which controls the award
of costs in FEHA actions, is an “express exception” to section
1032, subdivision (b). (Williams, at p. 105.) Additionally, since
the trial court entered its postjudgment order in this case, the
legal landscape has expanded to include Arave, supra, 19
Cal.App.5th 525. In Arave, the Court of Appeal tackled Holman
head-on and held section 998 does not apply in nonfrivolous
FEHA actions.
For the reasons that follow, we find the Arave analysis and
result persuasive. We hold the general policies behind section
998 must yield to the specific policies concerning costs and
20
attorney and expert witness fee awards in nonfrivolous FEHA
actions.11
We begin our analysis by discussing the law applicable to
prevailing party costs in civil actions generally (§§ 1032, 1033.5)
and in FEHA actions specifically (§ 12965(b)). We then review
the authorities relied upon by the trial court and the interplay
between those authorities and section 998, the statute designed
“to encourage the settlement of lawsuits before trial . . . by
punishing a party who fails to accept a reasonable offer from the
other party.” (Hurlbut v. Sonora Community Hospital (1989) 207
Cal.App.3d 388, 408.)
11 The Legislature agrees. Section 12965(b) has been
amended, effective January 1, 2019, to add the following bold
language in the concluding sentence: “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, except that,
notwithstanding Section 998 of the Code of Civil
Procedure, a prevailing defendant shall not be awarded
fees and costs unless the court finds the action was
frivolous, unreasonable, or groundless when brought, or
the plaintiff continued to litigate after it clearly became
so.”
We also emphasize nothing in our opinion is intended to
apply to FEHA actions deemed “frivolous, unreasonable, or
groundless when brought, or the plaintiff continued to litigate
after it clearly became so.” In those cases, the trial court retains
discretion to award fees and costs pursuant to section 12965(b).
(Williams, supra, 61 Cal.4th at p. 115; Arave, supra,
19 Cal.App.5th at p. 554.)
21
2. Prevailing party costs: Civil Actions v. FEHA
Actions
Generally, the prevailing party in “any action or
proceeding” is entitled to costs as a matter of right. (§ 1032,
subd. (b).) By statute, a defendant against whom a plaintiff
recovers no relief is a “prevailing party.” (Id., subd. (a)(4).) A
trial court has no discretion to deny prevailing party status to
such a defendant. (Charton v. Harkey (2016) 247 Cal.App.4th
730, 738 (Charton).)
A trial court also has no discretion to deny the prevailing
party its ordinary costs; they are to be awarded “as a matter of
right,” unless a statute expressly dictates otherwise.
(§ 1032, subd. (b).) Section 1033.5 lists the ordinary costs that
must be awarded to a prevailing party. The fees of expert
witnesses, unless ordered by the trial court, are not recoverable
as ordinary costs. (Id., subd. (b)(1).) Nor are attorney fees,
unless authorized by law or the parties’ contract. (Id.,
subd. (a)(10).)
In addition to being automatic, cost awards to the
prevailing party pursuant to section 1032, subdivision (b) are
symmetrical, i.e., the prevailing party, whether a plaintiff or a
defendant, is entitled to them. (Charton, supra, 247 Cal.App.4th
at p. 738.)
On the other hand, an award of costs to the prevailing
party in a FEHA action is never a matter of right, but is always
within a trial court’s discretion. (§ 12965(b); Williams, supra, 61
Cal.4th at p. 108.) Notably, that discretion extends to awarding
22
the prevailing party in a FEHA action not just the ordinary
litigation costs, but also attorney fees and expert witness fees.12
As always, however, a trial court’s discretion has
boundaries. The demarcation here is an asymmetrical one; the
trial court’s discretion to award costs―including attorney fees and
expert witness fees―to a prevailing defendant in a FEHA action
is not coextensive with the discretion it possesses when a plaintiff
is the prevailing party.
The asymmetrical standard was articulated by the United
States Supreme Court 40 years in Christiansburg, supra,
434 U.S. 412. There, the Supreme Court recognized trial courts
have discretion to award attorney fees to the prevailing plaintiff
in an Equal Employment Opportunity Commission action simply
because plaintiff prevailed. The Supreme Court held that
discretion does not extend to an award of attorney fees to a
prevailing defendant unless the trial court also finds the
plaintiff’s “claim was frivolous, unreasonable, or groundless, or
that the plaintiff continued to litigate after it clearly became so.”
(Christiansburg, supra, at p. 422.) California courts, of course,
adhere to Christiansburg’s asymmetrical standard for awards of
attorney fees in FEHA actions. (Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 985.)
In Baker v. Mulholland Security & Patrol, Inc. (2012)
204 Cal.App.4th 776, this court applied the Christiansburg
12 Section 12965(b), as originally enacted in 1980, did not give
trial courts the discretion to award expert witness fees to the
prevailing party in a private FEHA action. The Legislature
amended the section in 1999 to add that discretion, abrogating
the holding in Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436.
(Williams, supra, 61 Cal.4th at p. 106, fn. 1.)
23
asymmetrical standard to expert witness fees as well: “We agree
the standard applicable to attorney’s fees should apply to expert
witness fees for a prevailing FEHA defendant. Expert fees, just
like attorney’s fees, are not ordinary litigation costs which are
routinely shifted under Code of Civil Procedure sections 1032 and
1033.5. Like attorney’s fees, expert fees should be treated
differently than ordinary litigation costs because they can be
expensive and unpredictable, and could chill plaintiffs from
bringing meritorious actions.” (Id. at p. 783.)
Finally, in Williams, supra, 61 Cal.4th 97, the California
Supreme Court held the Christiansburg standard applies to the
award of ordinary costs as well as attorney fees13 when the
defendant prevails in a nonfrivolous FEHA action: “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. [Citation.] 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 became so.” (Id. at p. 115.)
3. Section 998 and FEHA Actions
In addition to the asymmetrical standard, the law is now
well settled that section 12965(b) is an express exception to the
prevailing party cost provisions in section 1032, subdivision (b).
Section 1032, subdivision (b) does not apply in FEHA actions, as
13 Expert witness fees were not an issue in Williams, and the
Supreme Court did not address that category of costs in the
FEHA context.
24
the trial court acknowledged. (Williams, supra, 61 Cal.4th at
p. 109.)
What had not been settled, though, is whether section 998
applies in nonfrivolous FEHA actions when a plaintiff refuses a
defendant’s reasonable statutory settlement offer, but fails to
achieve a better result. Under this scenario, appellate courts
traditionally discussed section 998’s applicability by cost
category, i.e., ordinary costs, attorney fees, and expert witness
fees. The trial court followed that formula and determined
defendant was not entitled to section 998 attorney fees, but did
award ordinary costs and expert witness fees pursuant to section
998, albeit in a reduced sum based on plaintiff’s economic
resources. In so ruling, the trial court relied on a trio of preWilliams
appellate decisions:
The trial court denied defendant its postoffer attorney fees
under section 998, citing Mangano v. Verity, Inc. (2008)
167 Cal.App.4th 944 (Mangano). In Mangano, the trial court
granted the defendant employer’s summary judgment motion in a
FEHA action. Defendant then sought an award of expert witness
fees and attorney fees incurred after it served a section 998
settlement offer. The trial court awarded the defendant expert
witness fees, but denied its request for attorney fees. Both sides
appealed; the Court of Appeal affirmed.
No one contended on appeal the FEHA action was frivolous.
(Mangano, supra, 167 Cal.App.4th at p. 951, fn. 10.) With that
understanding, Mangano held the Christiansburg standard
applied and there was no “persuasive argument for allowing the
application of section 998 to supplant the established standard
that seeks to deter frivolous suits while providing adequate
support and incentive for meritorious actions.” (Id. at p. 951.)
25
Accordingly, it affirmed the trial court’s denial of an award of
attorney fees to the prevailing defendant.14
Citing Seever, supra, 141 Cal.App.4th 1550, the trial court
granted defendant’s request for section 998 postoffer ordinary
costs, but in a reduced amount based on plaintiff’s economic
resources. Seever involved an award of ordinary costs and expert
witness fees to the prevailing defendant whose section 998 offer
was rejected.
Nowhere in Seever does one find the words “frivolous” or
“nonfrivolous.” Seever’s initial citation to Christiansburg was in
the context of “the imbalance inherent in allowing equal costshifting
between unequal parties.” (Seever, supra, 141
Cal.App.4th at p. 1562.) Seever attributed the denial of attorney
fees and discretionary costs to prevailing defendants in a FEHA
action to judicial concerns that “shifting these litigation expenses
to what ordinarily are modest- or low-income individuals would
unduly discourage these plaintiffs from litigating legitimate
claims.” (Ibid.)
Seever did not cite or make reference to section 12965(b).
Instead, the appellate panel appeared to accept that the strong
public policy behind section 998 compelled its application in
14 On the other hand, Mangano also affirmed the grant of
expert witness fees to the prevailing defendant pursuant to
section 998. That portion of the decision is not published
(Mangano, supra, 167 Cal.App.4th at p. 948), however, so we
have no insight into the appellate panel’s reasoning on that score,
other than to observe Christiansburg was an attorney fees case
and did not involve a claim for expert witness fees.
26
FEHA actions,
15 and then focused on the potential inequities of
shifting costs to a plaintiff whose economic circumstances were
typically more modest than those of the defendant. To that end,
Seever fashioned a “means” test to fairly weight economic
incentives and consequences: “Thus, seldom would a court
properly deny a successful defendant its entire section 998 cost
award, even in a FEHA case. But consistent with the rationale of
Christiansburg and like California decisions, it is entirely
appropriate and indeed necessary for trial courts to ‘scale’ those
awards downward to a figure that will not unduly pressure
modest- or low-income plaintiffs into accepting unreasonable
offers. [¶] Because the [trial] court here made no inquiry about
Seever’s financial situation, we do not know whether the cost
award . . . represents an unduly powerful settlement incentive to
a litigant of Seever’s means.” (Seever, supra, 141 Cal.App.4th at
p. 1562.)
The trial court relied on Holman, supra, 186 Cal.App.4th
262 to award defendant its section 998 postoffer expert witness
fees, also in a reduced amount, per Seever. In Holman, the Court
of Appeal held a trial court has discretion to award the prevailing
employer in a FEHA case expert witness fees under section 998
without first establishing the plaintiff’s case was frivolous. (Id.
at p. 280.) Where the FEHA action is not frivolous, however, the
trial court must “scale” an award of expert witness fees to take
15 Seever observed that section 998 “is designed to create
economic incentives on both parties to settle rather than try their
lawsuits. To do so, both sides must face some economic
consequences if it turns out they miscalculate and lose.” (Seever,
supra, 141 Cal.App.4th at p. 1562.)
27
into account the plaintiff’s economic resources. (Id. at pp. 283-
284.)
Although it predated Williams, Holman presciently
“assume[d] for purposes of this appeal that . . . the
Christiansburg standard appl[ies] when not only attorney fees,
but also expert witness fees, are awarded under section 12965 to
a prevailing defendant.” (Holman, supra, 186 Cal.App.4th at
p. 280.) Holman rejected, however, the notion that section
12965(b) was an express exception to section 1032, subdivision (b)
prevailing cost provisions. (Holman, at p. 281.) That conclusion
led to Holman’s reliance on Murillo v. Fleetwood Enterprises, Inc.
(1998) 17 Cal.4th 985 (Murillo) to analyze whether section 998
authorized an award of expert witness fees in FEHA actions.
In Murillo, the Supreme Court held the prevailing party
cost provisions in the Song-Beverly Consumer Warranty Act
(Civ. Code, § 1790 et seq.) are not “ ‘express’ exception[s]” to
section 1032, subdivision (b). (Murillo, supra, 17 Cal.4th at
p. 991.) Having reached that conclusion, the Supreme Court
“likewise conclude[d]” the Song-Beverly Act provided no
impediment to awarding expert witness fees to the prevailing
defendant whose section 998 settlement offer was rejected:
“[T]he requirements for recovery of costs and fees under section
998 must be read in conjunction with section 1032(b), including
the requirement that section 998 costs and fees are available to
the prevailing party ‘[e]xcept as otherwise expressly provided by
statute.’ (§ 1032(b), italics added.) Because the cost-shifting
provisions of the Song-Beverly Act do not ‘expressly’ disable a
prevailing defendant from recovering section 998 costs and fees
in general, or expert witness fees in particular, we find nothing in
the Act prohibiting the trial court’s exercise of discretion to
28
award expert witness fees to seller” pursuant to section 998.
(Murillo, at p. 1000, fn. omitted.)
Holman found no inconsistency with Mangano, supra,
167 Cal.App.4th 944. Holman concluded, again relying on
Murillo, that “attorney fees are subject to different rules than
those applicable to other costs.” (Holman, supra, 186 Cal.App.4th
at p. 283.) But erasing the distinction between the treatment of
attorney fees and costs pursuant to section 12965(b) was the
point in Williams. (Williams, supra, 61 Cal.4th at p. 112 [“The
Legislature’s choice of statutory language indicates it intended
the same rule apply to ordinary litigation costs as to attorney
fees”].)
Williams did not involve section 998, so its Murillo
discussion is limited to the express exception/section 1032,
subdivision (b) issue. In 2018, however, our colleagues in
Division Two of the Fourth Appellate District analyzed both
Murillo and Williams, surveyed the development of the law, and
concluded there is no statutory authority to award section 998
postoffer fees and costs in a nonfrivolous FEHA action. (Arave,
supra, 19 Cal.App.5th at p. 553.)
Arave reasoned as follows: Section 12965(b) is an express
exception to section 1032, subdivision (b). Section 998 “operates
only as an adjustment to cost awards under Section 1032(b), [so]
it follows that Section 12965(b) overrides Section 998(c) . . . . [I]f
a defendant may not obtain an award of costs under Section
1032(b) [because] plaintiff's claim are nonfrivolous, the trial court
may not augment an award of costs by awarding expert witness
fees under Section 998(c).” (Arave, supra, 19 Cal.App.5th at
p. 553.)
29
We find Arave’s logic unassailable. The Legislature
expressly pegs section 998 to section 1032. (§ 998, subd. (a).) In
non-FEHA actions, a “defendant is entitled under section 998 to
those costs incurred after the settlement offer to which a
prevailing party would be entitled under section 1032.” (Scott Co.
v. Blount, Inc. (1999) 20 Cal.4th 1103, 1112-1113.) In non-FEHA
actions, where the special prevailing party cost statute is not an
express exception to section 1032, a defendant is also entitled
under section 998 to its postoffer costs. (Murillo, supra,
17 Cal.4th at p. 1000.) But in nonfrivolous FEHA cases, the
prevailing party cost provisions are express exceptions to section
1032. (Williams supra, 61 Cal.4th at p. 105.) It follows, then,
that section 998 does not apply in nonfrivolous FEHA actions.
(Arave, supra, 19 Cal.App.5th at p. 553.)
Analyzed thusly, for cases that predate the amendment to
section 12965(b), we see no reason to differentiate between the
treatment of ordinary costs, attorney fees, and expert witness
fees in nonfrivolous FEHA actions. The language in section
12965(b) indicates all three categories are subject to the same
rules.

Outcome: The judgment is affirmed. The postjudgment order awarding respondent costs and expert witness fees pursuant to section 998 is reversed. In the interests of justice, no costs on appeal are awarded.

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