152 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com proceed under an alternative theory that would have produced a greater recovery, we cannot say, as did the trial court, that there simply was no duty for the attorneys to breach.”). 500 See, e.g., Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 115 (2015) (prevailing FEHA defendant should not be awarded costs unless “action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so”); Seever v. Copley Press, Inc., 141 Cal. App. 4th 1550, 1560 (2006) (defendant’s statutory offer of compromise for sum certain, plus costs and attorney fees “incurred to the date of this offer in the amount determined by the Court according to proof,” was sufficiently definite to constitute valid offer, but trial court abused discretion by awarding defendant more than $60,000 in costs without considering plaintiff’s ability to pay). See also § 6.13. 501 Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal. App. 5th 525, 552 (2018) (“We resolve the conflict in favor of the FEHA provision, which the Legislature enacted as part of a comprehensive statutory scheme designed to encourage victims of discrimination in employment or housing to seek relief.”). 502 Id. at 552-56. 503 Formal Opinion No. 517: Indemnification of Client’s Litig. Costs (April 2006) (re Rule 4-210(A)(3)). See also Ripley v. Pappadopoulos, 23 Cal. App. 4th 1616, 1626 n.17 (1994) (“It was formerly considered unethical for an attorney to agree to advance the costs of litigation if reimbursement was made contingent upon the outcome. … Rule 4-210 of the California Rules of Professional Conduct now permits an attorney to advance the costs of prosecuting or defending a claim and also permits repayment to be made contingent on the outcome of the matter.”). See generally Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510 (2006) (mere filing of meritless lawsuit could not give rise to cause of action for abuse of process). 504 Earley v. Superior Ct. (Washington Mut. Bank), 79 Cal. App. 4th 1420, 1435 (2000) (written notice to class members is not to tell the workers deciding whether to opt out that they might be liable for defendant’s attorney fees or costs: “Defense fees and costs could easily dwarf the potential overtime compensation recovery each worker might obtain. With potential risks far outweighing potential benefits, workers may well forego asserting their statutory wage and hour rights.”). 505 Joaquin v. City of Los Angeles, 202 Cal. App. 4th 1207, 1231 (2012) (CACI fails to include “retaliatory intent” as essential element for claim of unlawful retaliation; rather, CACI instruction here made jury verdict “inevitable” because instruction simply required plaintiff to show (1) he reported sexual harassment, (2) the City terminated his employment, (3) the report was a “motivating reason” to terminate him, (4) he was harmed, and (5) the City’s conduct was a substantial factor in causing his harm; CACI did not apply here, where the termination of employment was not for reporting as such, but for reporting falsely; “We urge the Judicial Council to redraft the retaliation instruction and the corresponding special verdict form so as to clearly state that retaliatory intent is a necessary element of a retaliation claim under FEHA.”). 506 Harris v. City of Santa Monica, 56 Cal. 4th 203, 213 (2013) (rejecting CACI No. 2500, which made employers liable if a protected status was merely “a motivating factor/reason” for the employer’s adverse action, where a “motivating factor” is “something that moves the will and induces action even though other matters may have contributed to the taking of the action”). 507 Veronese v. Lucasfilm Ltd., 212 Cal. App. 4th 1, 20 (2012) (reversing jury verdict for plaintiff in pregnancy discrimination case). The Judicial Council then issued a new jury instruction, CACI 2513, which is a disappointingly semi-adequate response to Veronese. CACI 2513 reads in pertinent part: “[A]n employer may [discharge] an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair reason, as long as its action is not for a [discriminatory] reason.” 508 SB 41, 2019 bill amending Civ. Code § 3361 (“Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”). 509 Id. 510 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). 511 Lab. Code § 1171.5(a). See also Civ. Code § 3339; Gov’t Code § 7285. 512 Lab. Code § 1171.5(b). 513 Reyes v. Van Elk, Ltd., 148 Cal. App. 4th 604, 617 (2007). 514 Id. at 618. 515 Id. 516 Farmers Bros. Coffee v. WCAB, 133 Cal. App. 4th 533 (2005). 517 Incalza v. Fendi N. Am., Inc., 479 F.3d 1005 (9th Cir. 2007). 518 8 U.S.C. § 1324a(a)(2). 519 Incalza, 479 F.3d at 1010-11. 520 Salas v. Sierra Chem. Co., 59 Cal. 4th 407, 414 (2014). 521 Id. at 416-17. 522 Salas v. Sierra Chem. Co., 198 Cal. App. 4th 29, 44-45 (2011). 523 Salas, 59 Cal. 4th at 430. 524 Id. 525 Id. at 419 (citing Gov’t Code § 7285(a)). 526 Id. at 431-32. 527 Lab. Code §1024.6.
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