Sviridov v. City of San Diego

If a defendant in a Fair Employment and Housing Act lawsuit makes a section 998 offer that the plaintiff rejects and does not improve upon at trial, the defendant may recover its costs under section 998 notwithstanding the normal rule that a defendant cannot recover costs against the plaintiff in a FEHA action unless the action was objectively without foundation.  Ordinarily, a defendant cannot recover costs against the plaintiff in a FEHA action unless the action was objectively without foundation or became so and plaintiff continued to litigate it.  However, if the defendant makes a CCP 998 that the plaintiff rejects and then does not better at trial, defendant may recover its costs under section 998 notwithstanding the normal rule about costs in FEHA actions.  The Police Officer Bill of Rights Act also does not preclude an award of costs under CCP 998.  POBRA contains a section allowing the trial court to award costs, including attorney fees, as sanctions for a frivolous or bad faith suit.  (Gov. Code 3309.5(d)(2).)  But that provision does not conflict with CCP 998 or preclude a cost award under that section.

California Court of Appeal, Fourth District, Division 1 (McConnell, P.J.); July 28, 2017 (published August 15, 2017); 2017 WL 3203271

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