©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 189 Second, in a FEHA decision that affirmed summary judgment for the two defendants—the plaintiff’s employer and her supervisor—the California Court of Appeal affirmed the trial court’s decision to award only $1.00 in attorney fees to the prevailing individual defendant, even though the suit against her was “frivolous and vexatious.”307 The Court upheld the decision to give only a nominal fee award because any fee award would benefit the corporate employer, which had paid for the individual’s defense, and because the suit against the employer itself, while lacking merit, was not frivolous. In a more welcome development, a California Court of Appeal decision upheld an order requiring the plaintiff to pay a prevailing FEHA defendant $100,000 in attorney fees, where (1) the trial court made express oral findings when it ruled on defendant’s motion, (2) the trial court properly considered plaintiff’s financial condition, and (3) the trial court did not abuse its discretion in finding that the action was “unreasonable, frivolous, meritless, or vexatious.”308 6.13.2 Costs Under federal and California law, the prevailing party in a lawsuit generally is entitled to recover its costs of suit (filing fees, court reporter fees, etc.). But California has instituted a double standard to favor FEHA plaintiffs. The California Supreme Court held that prevailing defendants in FEHA cases are not automatically entitled to their costs.309 Rather, prevailing FEHA defendants seeking costs must show that the action was objectively without foundation when brought, or that the plaintiff continued to litigate after the lack of foundation had become clear.310 That result follows even when a FEHA defendant made a pre-trial offer—rejected by the plaintiff—and then prevailed at trial: the defendant cannot recover its post-offer costs unless the FEHA plaintiff brought or maintained a frivolous action.311 The same kind of double standard has extended to awards of expert witness fees in FEHA cases, even where the defendant has made an offer of judgment that was more generous than what the plaintiff achieved in a verdict, and thus ordinarily would be entitled to recover its expert witness fees (see § 5.16.) More generally, in 2021, the California Supreme Court held that “[a]n appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff’s action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so.”312 6.14 No Meaningful Duty to Exhaust Administrative Remedies Before suing under Title VII, a plaintiff must exhaust administrative remedies by filing a personally verified charge with the EEOC, which can investigate, conciliate, and possibly avoid litigation. California, meanwhile, has systematically removed exhaustion requirements to the point that they have become a mere ministerial formality. First, would-be plaintiffs can bypass any administrative process simply by filing a discrimination form with the DFEH to “elect court action” and obtain an immediate right to sue. Second, the plaintiffs need not even sign the administrative paperwork; their attorney may sign instead.313 Third, the attorney need not even bother with a physical signature; the signature can be electronic.314 Moreover, although the attorney is supposed to give notice of the administrative complaint to the employer, the attorney’s failure to do so will not bar a lawsuit.315 So, all too often, California employers learn of an employee’s discrimination claim only once a lawsuit is served. California also favors employees when it comes to late administrative filings. Federal law excuses a late administrative filing only under special circumstances, e.g., where the employer has misled an employee or has concealed facts that the employee needed in order to assert the employee’s rights. There is no tolling of the federal filing deadline simply because the employee has pursued an internal grievance.316 In California it’s
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