By Sun Hi Ahn and Christopher S. Andre
In Department of Fair Employment and Housing v. Mayr, the California Court of Appeal held defendants who prevailed against the Department of Fair Employment and Housing ("DFEH") in an action asserting alleged housing discrimination under the Fair Employment and Housing Act ("FEHA") could not recover from the DFEH attorney's fees or costs. The Court held the language of Government Code section 12989.2 dictates that attorney's fees and costs may neither be recovered by or recovered against the government in such actions. The court held Code of Civil Procedure section 1028.5 providing for an award of attorney's fees and costs to a small business or licensee that prevails in a civil action between the small business or licensee and s state regulatory agency if the court finds the agency acted without substantial justification does not apply to such actions because, according to the court, Government Code section 12989.2 is more specific and more recent than Code of Civil Procedure section 1028.5.
Although Government Code section 12989.2 applies to actions for alleged housing discrimination in violation of FEHA, we think a court presented with the issue would likely apply the same reasoning to actions for alleged employment discrimination under FEHA because Government Code section 12965(b) applicable to claims for alleged employment discrimination in violation of FEHA is worded very similarly to Government Code section 12989.2. Government Code section 12988.2 and Government Code section 12965(b) both contain language exempting actions brought by the state. Section 12989.2 states in part: "The court may, at its discretion, award the prevailing party other than the state, reasonable attorney's fees and costs, including expert witness fees, against any party other than the state." Emphasis added. Section 12965(b) states in part: "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity." Emphasis added.
