That subdivision states: "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." The District relies on Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671 (Perez); Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121 (Knight); and Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776 (Baker). In Perez, a nurse at a correctional facility sued the County of Santa Clara for racial discrimination and retaliation under FEHA. (Perez, supra, 111 Cal.App.4th at p. 673.)
In Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 679, 3 Cal.Rptr.3d 867 (Perez ), the defendant, having prevailed in 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.”
Hatai asked the trial court to strike the cost bills in their entirety because defendants had not shown that Hatai's lawsuit was frivolous, vexatious, or wholly without merit. The trial court declined to do so, pursuant to Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 3 Cal.Rptr.3d 867 ( Perez ). The trial court's ruling was proper.
(Cummings, supra, 11 Cal.App.4th at p. 1390.) However, as the courts in Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681, and Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 135136, subsequently noted, the Christiansburg case addressed the recovery of attorney fees only, and not an award of costs: "In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at p. 421, italics added.)
However, there is a split of authority about whether the Christiansburg standard applies to "costs." (Compare Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681 [ 3 Cal.Rptr.3d 867] ( Perez) ["ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable"] and Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 134-135 [ 33 Cal.Rptr.3d 287] ( Knight) [same] with Cummings, supra, 11 Cal.App.4th at p. 1387 [Christiansburg standard applicable when determining whether to award fees and costs to a prevailing FEHA defendant].) Neither Knight, Perez, or Cummings answer the specific question presented here because they did not deal explicitly with expert witness fees, but only "ordinary litigation costs."
In order to establish a prima facie case of discriminatory failure to promote, a plaintiff must show that 1) she belongs to a protected class; 2) she "applied and was qualified for a job for which the employer was seeking applicants"; 3) despite her qualifications, she was rejected; and 4) after her rejection, "the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications." See Perez v. Cnty. of Santa Clara, 111 Cal. App. 4th 671, 675-76 (2003).
See Reeves v. SandersonPlumbing Prods., Inc., 530 U.S. 133, 142 (2000). In the job promotion context, plaintiff must show that: (1) she belongs to a protected class; (2) she applied for and was qualified for a job for which the employer was seeking applicants; (3) she was rejected despite her qualifications; and (4) that defendant filled the position with a man or continued to consider other applicants whose qualifications were comparable to hers after rejecting her. See Perez v. County of Santa Clara, 111 Cal.App.4th 671, 675-76 (2003). Defendant argues that even if plaintiff's claim was not time-barred, plaintiff cannot meet her burden of establishing a prima facie case of discrimination as she cannot show that she applied for any available position and, therefore, cannot show that she was rejected despite her qualifications.
The Romans additionally argued certain of the costs for which BRE sought reimbursement were unnecessary (an argument that is not repeated on appeal) and, alternatively, requested that they be excused from paying the award by demonstrating hardship/inability to pay.The court denied the motion to tax costs. The court ruled the “frivolous, unreasonable or groundless” standard applied in FEHA cases only to an award of attorney fees to a prevailing party defendant, not an award of costs under Code of Civil Procedure section 1032, subdivision (b), citing Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 33 Cal.Rptr.3d 287 and Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 3 Cal.Rptr.3d 867, both of which had disagreed with our contrary holding in Cummings . (Our decision in Cummings had reversed a combined award of attorney fees and costs as an abuse of discretion.) In addition, the court explained, the Romans had asserted several statutory claims in addition to their FEHA cause of action; and the mandatory provision in section 1032, subdivision (b), governed the award of costs to the successful party on those causes of action.
(Id. at p. 1391.) Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671 [Sixth Dist.] refused to follow Cummings with respect to costs. It stated: "[T]he issue in Christiansburg was limited to the recovery of attorney fees.
Alternatively, it argues that the decision not to promote her to a position was legitimate if she was not the most qualified candidate for that position. A prima facie case based on a failure to promote requires showing that the plaintiff '"applied and was qualified for a job for which the employer was seeking applicants,"' and that '"despite his qualifications, he was rejected."' (Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 675-676.) In Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666 (Reeves), a case that required a comparison of the plaintiff's qualifications to those of the successful candidate, the court concluded that the disparity in qualifications must be substantial in order to support an inference of discrimination.