Filed 6/3/20 Wergechik v. Anaheim Arena Management, LLC CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANGELA WERGECHIK,

Plaintiff and Appellant,

v.

ANAHEIM ARENA MANAGEMENT, LLC,

Defendant and Appellant.

G056079, G056318

(Super. Ct. No. 30-2015-00786670)

O P I N I O N

Appeals from a judgment and postjudgment order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed. Request for Judicial Notice. Denied.

Workplace Justice Advocates, Tamara S. Freeze and Robert A. Odell for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Jason A. Weiss, Ruben D. Escalante and Matthew A. Tobias for Defendant and Appellant.

* * *

INTRODUCTION

A jury found defendant Anaheim Arena Management, LLC (AAM) not liable to its former employee, plaintiff Angela Wergechik (Wergechik), on her sex discrimination, retaliation, and disability-related claims brought under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA). The jury found AAM liable to Wergechik for violating Labor Code section 1198.5, subdivision (k) (section 1198.5(k)) by failing to make her personnel file available to her for inspection. An amended judgment awarded Wergechik a $750 penalty for the section 1198.5(k) violation and $150 in statutory attorney fees on that single claim. The trial court thereafter granted Wergechik’s and AAM’s postjudgment motions to strike the other’s memorandum of costs and awarded no further costs.

Both parties appealed from the amended judgment and the order granting the motions to strike costs. Wergechik contends the trial court erred by (1) bifurcating the trial into liability and damages phases, (2) failing to modify jury instructions in the first phase of the trial to eliminate the elements of causation and harm in the FEHA claims to account for the bifurcation, (3) limiting the admission of “me too” evidence, (4) refusing to admit into evidence an unredacted grievance memorandum, and (5) striking her memorandum of costs.

AAM contends insufficient evidence supported the jury’s finding AAM violated section 1198.5(k) based on the theory presented to the jury in the special instruction given. AAM also contends it was entitled to an award of costs.

We affirm the amended judgment. The trial court was within its discretion to bifurcate the trial into liability and damages phases. Wergechik does not argue any of the given jury instructions was inaccurate, and the record does not show that Wergechik was limited in her ability to present evidence on causation and damages for liability purposes.

Contrary to Wergechik’s argument, the trial court did not categorically exclude all me-too evidence but considered the admissibility of proffered evidence on a case-by-case basis. The court did not abuse its discretion by excluding certain testimony by two female AAM employees offering me too evidence. Nor did the court abuse its discretion by excluding the admission of a 15-page grievance memorandum unless it was redacted to exclude anecdotal hearsay of me-too evidence and complaints of discriminatory acts that occurred remote in time, some as far back as 2004, and well outside the limitations period; Wergechik did not seek to admit a redacted version of the memorandum. The court did not abuse its discretion by concluding the continuing violations doctrine did not apply to require the admission of the unredacted memorandum. Also, the trial court did not abuse its discretion under Code of Civil Procedure section 1033, subdivision (a) by granting AAM’s motion to strike Wergechik’s costs, as she recovered far less than the $25,000 in damages that might be recovered in a limited civil case (id., § 85, subd. (a)).

We reject AAM’s single challenge to the amended judgment. We conclude that evidence of AAM’s handling of Wergechik’s requests to inspect her personnel file was sufficient to support a finding AAM violated section 1198.5(k). We also affirm the postjudgment order striking AAM’s memorandum of costs.

SUMMARY OF TRIAL EVIDENCE

AAM operates and manages the Honda Center. AAM and the Anaheim Ducks Hockey Club are managed by HMS Ventures, LLC.

In November 1994, Wergechik began working at the Honda Center for AAM as a certified public accountant and was later promoted to accounting manager. In 1998, she began reporting to AAM’s president and chief executive officer, Tim Ryan, who, in June 1998, promoted her to the position of director of finance. In 2006, Ryan promoted Wergechik to the position of vice president of finance which she held until 2015, the year her employment was terminated. He also appointed her to the organization’s executive committee which consisted of the “top executives.”

I.

WERGECHIK’S CASE

Wergechik testified that during her employment, she discovered the existence of differentials in pay between herself and male executives. The parties stipulated to Wergechik’s annual salary history since May 2010 as follows: “May 2010, $164,821. June 2011, $191,139. July 2012, $202,692. June 2013, $218,752. June 2014, $238,752.” On June 30, 2014, Wergechik received a bonus in the amount of $47,750. Ryan authorized all of Wergechik’s raises, bonuses, and promotions. Wergechik testified, “I noticed that . . . most of the male executives were paid less than me, and then over the course of time, it shot up and then the differential became 10, 20, 30 percent more than me [with regard to salary and bonuses] with no corresponding experience or anything. . . . I couldn’t see a correlation. I couldn’t see a reason for that.”

Wergechik testified that, in addition to noticing pay differentials, during her employment at AAM she was treated less favorably than male executives. She observed male executives having the opportunity to interact with AAM’s owners and regularly have lunch with Ryan; Wergechik was often not included unless the executive committee had a business lunch meeting. She testified Ryan told her that women were not allowed on the team plane. Male executives were invited to attend sponsor events at resort venues and to travel to away games, but Wergechik was not. Although in 2013, Ryan ranked Wergechik’s performance as “exceeds expectations,” she observed Ryan to regularly highlight the accomplishments of male executives and rarely highlight her accomplishments. On one occasion, following a presentation to the owners, Ryan commended a male executive for work that Wergechik had performed. On another occasion, Ryan expressed concern that Wergechik was not as approachable as she should be and commented, “I don’t want to hear from anybody, ‘here comes the bitch.’” This comment made Wergechik feel upset, embarrassed, and surprised because Ryan had never before said anything like that to her.

In 2014, Wergechik was the only woman serving on AAM’s executive committee. She testified that Ryan was unsympathetic when she told him it was difficult being the only woman serving on the executive committee; he told her “you will just have to work harder.”

Wergechik further testified that in April 2014, she expressed her concerns to Scott about pay differentials based on gender, being excluded from executive events, and “basically the preferential treatment of the men.” Wergechik “never heard anything” and did not know what happened as a result of her conversation with Scott.

In July 2014, Wergechik was informed that AAM had implemented a reorganization and that as a result, Tracy Jones, a female employee who had worked in marketing for AAM starting around 1996, was no longer with the company.

II.

WERGECHIK’S ABSENCE AND SUBSEQUENT EVENTS

Later that month, Ryan went on an annual two-week fishing trip vacation with Starkey. While he was away, Ryan tried to contact Wergechik and, when he could not reach her, asked his assistant to contact her. The assistant was not able to reach Wergechik for a number of days. Ryan learned from others that Wergechik’s absence from the office when Ryan was away was normal behavior for her. Ryan e-mailed Wergechik to express his disappointment about her absence from the office without notice. He told her she was a key executive, her presence was important when he was away on vacations, and they had a tremendous amount to talk about when he returned. Wergechik responded with an e-mail defending her absence and expressing her criticisms of and anger at Ryan for sending his e-mail.

III.

WERGECHIK’S GENDER DISCRIMINATION INQUIRY, LEAVE OF ABSENCE, COMPLAINT, AND EMPLOYMENT TERMINATION

On September 21, 2014, Wergechik filed an inquiry alleging gender discrimination with the Department of Fair Employment and Housing (DFEH). Two days later, she informed Ryan, Scott, and other executives by e-mail about her DFEH filing. Scott testified that his receipt of Wergechik’s September 23, 2014 e-mail was the first time he was given any information that she had some type of complaint about employment discrimination.

On October 1, 2014, Wergechik submitted to AAM a 15-page summary of grievances which laid out in detail her allegations of discrimination and retaliation; her allegations were primarily focused on issues related to her compensation, promotions, and impression that she was undervalued and excluded from work opportunities because of her sex. In October 2014, she began a medical leave of absence which AAM approved and designated under the Family Medical Leave Act and the California Family Rights Act (CFRA); Wergechik would never thereafter return to work at AAM.

Wergechik testified that she took the leave of absence due to increasing anxiety. AAM extended her leave until January 5, 2015, even though it took the position that she had refused to meet with AAM in good faith to discuss her return to work, and that during her absence, AAM discovered that she had engaged in misconduct.

On January 5, 2015, Wergechik submitted another doctor’s note placing her off work until February 28, 2015. Wergechik testified that her employment was then terminated for job abandonment and misconduct. Scott testified that her employment was not terminated at that time, but instead she was placed on an “unapproved leave.”

In early May 2015, Wergechik filed her original complaint in this action. In September 2015, Scott notified Wergechik that her employment with AAM was terminated as a result of a corporate reorganization that had been in the works long before she filed her DFEH inquiry in September 2014.

PROCEDURAL HISTORY

I.

THE SECOND AMENDED COMPLAINT

Wergechik’s second amended complaint, her operative pleading, alleged nine causes of action against AAM and the Anaheim Ducks Hockey Club, LLC: (1) disability discrimination in violation of Government Code section 12940, subdivision (a); (2) failure to accommodate a disability in violation of Government Code section 12940, subdivision (m); (3) failure to engage in the interactive process in violation of Government Code section 12940, subdivision (n); (4) sex discrimination in violation of Government Code sections 12940, subdivision (a) and 12926, subdivision (r); (5) retaliation for exercising rights under FEHA in violation of Government Code section 12940, subdivision (h); (6) failure to prevent discrimination and/or retaliation in violation of Government Code section 12940, subdivision (k); (7) failure to furnish a copy of personnel records in violation of Labor Code section 1198.5; (8) retaliation for exercising rights under the CFRA in violation of Government Code section 12945.2, subdivision (l); and (9) wrongful termination in violation of public policy.

Before trial, Wergechik dismissed her claims for disability discrimination and wrongful termination in violation of public policy and dismissed the Anaheim Ducks Hockey Club from the lawsuit.

II.

AAM’S CROSS-COMPLAINT

After the first amended complaint was filed, but before Wergechik filed the second amended complaint, AAM filed a cross-complaint against Wergechik containing claims for breach of contract, breach of the duty of loyalty, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, violation of the California Comprehensive Computer Data Access and Fraud Act in violation of Penal Code section 502, declaratory relief, conversion, and unfair competition.

Wergechik filed an anti-SLAPP motion to strike the cross-complaint. She argued the cross-complaint arose from protected activity within the meaning of Code of Civil Procedure section 425.16. AAM filed written opposition. The trial court granted the anti-SLAPP motion on the grounds the cross-complaint arose from Wergechik’s assertion of claims against AAM in this lawsuit and AAM had not shown a likelihood of prevailing by admissible evidence. AAM appealed from the order striking the entire cross-complaint. That appeal remained pending during the jury trial on Wergechik’s second amended complaint. The trial court granted AAM’s motion in limine to exclude evidence of the cross-complaint at trial.

III.

THE TRIAL COURT ORDERS TRIAL BIFURCATED AND DENIES WITHOUT PREJUDICE AAM’S MOTIONS IN LIMINE TO EXCLUDE ME-TOO EVIDENCE AND EVIDENCE OF ALLEGED WRONGFUL ACTS THAT OCCURRED BEFORE MAY 6, 2014.

At a pretrial conference on September 25, 2017, the trial court announced that the jury trial would be bifurcated: “Now this is not in the nature of a question; it’s in the nature of an announcement which I probably made before. The case will be bifurcated. We’ll be doing it on liability first and then on damages, assuming liability is proven on some of these, maybe all of these causes of action.” The court confirmed its bifurcation ruling at the November 6 pretrial hearing on the eve of jury selection. At that hearing, Wergechik’s counsel stated she had spoken with AAM’s counsel and requested that the trial not be bifurcated because it would take substantially longer. The trial court told counsel the bifurcation ruling would stand.

Also at the November 6 pretrial hearing, the trial court addressed the parties’ motions in limine. As pertinent to this appeal, the trial court considered AAM’s Motion in Limine No. 1, which sought an order excluding from trial references and evidence “concerning alleged discrimination, retaliation, harassment, or mistreatment against individuals other than [Wergechik], and allegedly by individuals other than the alleged wrongdoer in this case.” The trial court stated it would deny the motion without prejudice. The court informed the parties about an opinion issued by a panel of this court, Chen v. County of Orange (2002) 96 Cal.App.4th 926 (Chen), that the court thought would govern the court’s rulings. The court stated: “[F]rom time to time if you want to bring on [an Evidence Code section] 402 hearing on these witnesses, I suppose I will let you do that. But frankly, more than that, I think [what I would] need for each witness is an offer of proof in writing. . . . [¶] Right now, it’s denied without prejudice, but the burden is on the plaintiff to show me that the situation would be vividly illustrated by the collateral ‘me too’ evidence. Best I can do for you today.”

The court also addressed AAM’s Motion in Limine No. 2, which sought to exclude references or evidence “regarding discrete alleged adverse employment actions occurring prior to May 6, 2014.” The motion was made on statute of limitations and relevance grounds. The trial court denied the motion without prejudice, subject to a written offer of proof by Wergechik on which the court would make an evaluation. The court explained “that would be on a witness-by-witness basis I guess or something like that. So you basically are just going to have to raise your problems, [AAM’s counsel] and when it comes up and they start transgressing to that . . . you’re going to have to object and he will say I have an offer of proof that makes it fall within the exception. But, you know, I can’t evaluate that today.”

IV.

THE JURY FINDS IN FAVOR OF AAM ON ALL CLAIMS EXCEPT THE SECTION 1198.5(k) CLAIM; THE AMENDED JUDGMENT IS ENTERED; WERGECHIK AND AAM APPEAL.

After a 12-day trial on liability, the jury returned a verdict in favor of AAM on all of Wergechik’s claims except for her section 1198.5(k) claim. In response to the question “[h]as plaintiff Angela Wergechik proved by a preponderance of the evidence that defendant AAM is liable for any of the following” the jury voted as follows for each claim:
“(a) Not accommodating a disability Yes 3 No 9
“(b) Not engaging in an interactive process with her to explore potential accommodations Yes 2 No 10
“(c) Discriminating against her because of her sex Yes 1 No 11
“(d) Failing to prevent sexual discrimination against her Yes 0 No 12
“(e) Retaliating against her for filing claims with the DFEH Yes 3 No 9
“(f) Retaliating against her for taking medical leave Yes 2 No 10
“(g) Denying her access to her personnel file Yes 11 No 1
The jury also found Wergechik had not proven by clear and convincing evidence that AAM acted with fraud, oppression, or malice against her.

In January 2018, the amended judgment on jury verdict was entered in favor of Wergechik on the section 1198.5(k) claim, for which she was awarded the $750 statutory penalty, and in favor of AAM on all remaining causes of action. Wergechik and AAM each appealed from the amended judgment.

V.

THE TRIAL COURT GRANTS EACH PARTY’S POSTJUDGMENT MOTION STRIKING THE OTHER PARTY’S MEMORANDUM OF COSTS; AAM FILES A SECOND NOTICE OF APPEAL.

Wergechik and AAM each filed a memorandum of costs. AAM sought $247,719.39 in costs while Wergechik sought $57,365.23 in costs. Each party filed a motion to strike or tax the other party’s requested costs. The trial court granted both motions to strike costs and denied a costs award to either Wergechik or AAM. Wergechik and AAM each filed a notice of appeal from the court’s order granting the motions to strike or tax costs. The trial court awarded Wergechik $150 in statutory attorney fees under Labor Code section 1198.5. We consolidated Wergechik’s and AAM’s appeals from the order granting the motions to strike or tax costs with Wergechik’s and AAM’s appeals from the amended judgment.

DISCUSSION

I.

WERGECHIK’S APPEAL

A.

The Trial Court Did Not Abuse Its Discretion by Bifurcating the Trial into a Liability Phase and Damages Phase.

Wergechik argues “the trial court prejudicially erred in bifurcating the trial on Wergechik’s FEHA causes of action into liability and damages.” (Boldface and some capitalization omitted.) Wergechik’s argument is without merit. We start by setting out in detail the sequence of events regarding the trial court’s decision to bifurcate trial. These events are also relevant to Wergechik’s claim of instructional error discussed in subsection I.B.

i.

Summary of pre-trial discussions regarding bifurcation.

Our record shows the trial court first ordered trial bifurcated at the September 25, 2017 pretrial hearing at which the trial court informed counsel: “The case will be bifurcated. We’ll be doing it on liability first and then on damages, assuming liability is proven on some of these, maybe all of these causes of action.” No objection was raised by any party.

A short time later in the hearing, after discussing verdict forms and jury instructions briefly, the court reiterated, “So the case will be bifurcated.” After a discussion about trial witnesses, the trial court addressed expert and medical doctor testimony, stating it was the court’s guess “that’s for phase two in any event.” Wergechik’s counsel responded, “No, your Honor, that’s the liability phase of the experts.” The court responded, “Well, we may have to talk about whether that really is liability.”

Later still at the hearing, the trial court stated: “Okay. Keep in mind that we’re bifurcating, which I will tell the jury. In your first opening you can tell them the whole case. I don’t care. You get half an hour. You can say, ‘and we’re going to ask for $2 million.’ You can tell them the whole thing, the damages, anguish, all that. You can tell them, although we won’t have that in phase one of the trial. But it depends on how you want to allocate your time on telling them about the case. [¶] You will get an opening on phase two, and that will be confined to the issues in phase two. Everything that’s in the jury room, in terms of evidence and jury instructions will stay there for phase two. So phase two will be radically reduced in time.” Still, Wergechik’s counsel did not object.

After the trial court informed counsel about other courtroom procedures, Wergechik’s counsel asked, “Your Honor, just to understand. So there will be a phase two, which is the damages phase, separate from the liability phase?” The court responded: “Yes. And the one area in which people feel a bump in the road is the question of causation. It doesn’t always come up. But in negligence and tort cases often the plaintiff will say, ‘but how can we find out whether the causation—’ essentially it’s a hypothetical question in phase one. And the way I phrase it to the jury is, ‘I’m asking you to assume, without deciding, that there was a causation of some damages that resulted in this behavior, and I want to find out whether the behavior was bad.’ That’s how we handle the causation situation and we’re able to get to phase two without encumbering ourselves with two versions of the causation question.” (Italics added.) Wergechik’s counsel responded, “I understand. And so the witnesses that are pertinent to damages such as—” and the trial court interjected, “They may have to come back.” Wergechik’s counsel responded, “They will have to come back. They can come in the liability phase, but they can also come in the damages phase?” The court replied: “Oh, sure. They can testify.”

Wergechik’s counsel next asked, “And for opening in phase two, did you also say it was 30 minutes as well?” The court stated, “usually 30 minutes is more than you need. Phase two is the damages phase,” to which Wergechik’s counsel responded, “Right.” After the trial court later asked counsel if there was anything else they wanted to raise before they moved to some of the merits of the case, Wergechik’s counsel asked: “Just to clarify, your Honor, for the actual phases of trial. It will be the same jury, correct?” The court responded in the affirmative.

Over a month later on November 6, 2017, the trial court held another pretrial hearing at which the court began the discussion of pretrial issues by stating: “First, we bifurcated the trial between liability and damage.” No party objected. During the continued pretrial hearing that afternoon, Wergechik’s counsel stated: “The only issue that defense counsel and I were discussing is—would be to request the court not to bifurcate trial into liability and damages as it would take a substantially longer time.” The court responded: “I have already ruled on that” and “I am going to do it.” Wergechik’s counsel said, “Yes, yes, your honor.”

ii.

The trial court did not abuse its discretion by bifurcating the trial sua sponte.

Although, beginning as early as September 25, 2017, the trial court repeatedly informed counsel that the trial would be bifurcated, Wergechik never filed an opposition to bifurcation. At the end of the November 6 pretrial hearing, Wergechik’s counsel requested that the court not bifurcate the trial on the ground that, as bifurcated, trial would take a substantially longer time. The trial court tacitly disagreed by stating that the trial would be bifurcated. Wergechik offered no explanation in the trial court or on appeal why bifurcation would result in trial taking a substantially longer time.

Wergechik argues for the first time on appeal “[t]he FEHA statute does not authorize bifurcation of a FEHA action into ‘liability’ and ‘damages,’ and there is nothing in the FEHA legislative history o[r] the Judicial Council of California Civil Jury Instructions (‘CACI’) to indicate a proper procedure of such bifurcation.” But section 598 of the Code of Civil Procedure provides the trial court with discretion to, at any time, unilaterally bifurcate trial into a liability phase and damages phase when “the convenience of witnesses, the ends of justice, or economy and efficiency of handling the litigation would be promoted thereby.” Wergechik fails to show the trial court’s implied findings in support of bifurcation were baseless and its decision to bifurcate constituted an abuse of discretion.

B.

Wergechik’s Contention of Instructional Error.

Wergechik does not argue that any of the jury instructions given to the jury contained an inaccurate statement of the law. Instead, she argues that in the wake of bifurcating trial into a liability phase and a damages phase, the trial court erred by failing to modify the standard jury instructions on her FEHA claims to eliminate causation and damages elements during the first phase of trial. However, the record does not show that Wergechik labored under a misunderstanding that anything other than the standard jury instructions on her FEHA claims, including all elements requisite to a liability finding, would be given to the jury during phase one of the trial.

After the trial court ordered the trial bifurcated on September 25, 2017 and before trial commenced, on November 6, 2017, Wergechik filed a set of proposed jury instructions that included the following standard instructions relevant to her FEHA claims: CACI Nos. 2500 (Disparate Treatment—Essential Factual Elements), 2505 Retaliation—Essential Factual Elements), 2527 (Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant), 2541 (Disability Discrimination—Reasonable Accommodation—Essential Factual Elements), 2546 (Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process), 2620 (CFRA Rights Retaliation—Essential Factual Elements). All of those instructions contained the causation and harm elements of such claims.

On November 17, 2017, Wergechik rested her case as to liability (phase one). That same day, the trial court provided counsel with its own proposed set of jury instructions. Those instructions reflected modified versions of instructions for two of Wergechik’s FEHA claims, CACI Nos. 2500 and 2505, from which were deleted the elements of causation and harm. On November 20, 2017 (the 10th day of trial), Wergechik filed proposed revisions to the court’s proposed jury instructions which, as pertinent to the issue presented on appeal, requested that the elements of harm and causation also be removed from CACI Nos. 2527, 2541, and 2546, which had not been so modified in the court’s proposed set of jury instructions. Her counsel argued: “[T]hey are not applicable to this first phase of trial, since the court bifurcated this trial into ‘liability’ and ‘damages.’”

The trial court’s minute orders dated November 17, 20, and 21, 2017 each state that off the record discussions were held between the trial court and counsel regarding jury instructions. The minute orders do not state what transpired during those discussions.

On November 22, 2017, the trial court instructed the jury with versions of the CACI instructions on all of Wergechik’s FEHA claims, including her claim for violation of the CFRA, that each included the elements of causation and harm. Wergechik asserts she was surprised by the jury instructions ultimately given by the court which she contends greatly prejudiced her case. Yet, the record does not show she expressed her concerns to the trial court, aside from filing proposed revisions to the court’s proposed instructions on November 20. She did not request any clarifying instructions (as offered by the trial court during the September 25, 2017 pretrial hearing) or file any posttrial motions raising her concerns.

Conspicuously absent from Wergechik’s appellate briefs is a citation to the record where she ever expressed to the trial court that she would have introduced additional evidence on causation and damages had she known those elements would have been included in the jury instructions. She has never even identified what evidence she would have offered. As of the time Wergechik rested her case, she had submitted proposed jury instructions that included those elements; nothing in the record suggests Wergechik had put on her case with a different expectation. The record shows it was thereafter the trial court’s idea to possibly eliminate those elements in the instructions for the first phase of the trial for at least some of the claims. Although Wergechik attempted to follow up on that idea, the trial court ultimately included those elements in the given jury instructions.

The lynchpin of Wergechik’s argument that she suffered prejudice as a result of the given jury instructions is the assumption that the court’s order bifurcating the trial excluded or at least significantly limited the presentation of evidence of causation and damages during the first phase of trial. In her opening brief, Wergechik asserts without citation to the record that “the trial court didn’t allow any evidence of monetary loss suffered by Wergechik during phase one of the trial,” she “obliged and did not present evidence of lost wages, benefits and earning capacity during phase one,” and “[g]iven the severe limitation on presentation of such evidence, she was placed in [the] impossible position to demonstrate ‘harm’ and what caused such ‘harm’ at trial, misleading the jury and leaving the jury to wonder ‘what’s the big deal’ while deliberating on liability.” (Boldface omitted.)

Wergechik fails to identify where in the record the trial court issued an order limiting, whether generally or specifically, any evidence of causation or damages before or during trial. The court did not make any specific evidentiary rulings with regard to bifurcation. The court’s approach was consistent with its pattern of dealing with other evidentiary issues on a case-by-case basis, as evidenced by its denial without prejudice of both AAM’s Motion in Limine No. 1 with regard to me-too evidence and Motion in Limine No. 2 with regard to evidence of wrongdoing preceding the limitations period.

The only example Wergechik offers of any limitation of causation or damages evidence during trial was not a ruling by the trial court but a question. During Wergechik’s counsel’s examination of Wergechik’s licensed social worker, the court asked, “We had a discussion what was appropriate for phase two and phase one. Why wasn’t this a phase two examination?” Wergechik’s counsel responded, “Because Ms. Wergechik was still employed, your Honor, as of October 2014. And it goes into her disability.” The trial court’s inquiry cannot be construed as confirming an order excluding any particular type of evidence.

Wergechik does not dispute, as pointed out in AAM’s respondent’s brief, “the trial court permitted Wergechik to testify about the impact AAM’s treatment had on her health (e.g. erratic sleeping, anxiety, worrying indigestion, dizziness, panic attack, etc.). . . . The trial court permitted two professionals to testify about Wergechik’s emotional distress. . . . The trial court permitted evidence of the disparity in pay between Wergechik and other male employees. . . . Thus, if the jury found that AAM wrongfully terminated Wergechik, it necessarily would have found she suffered lost wages.” As also pointed out by AAM, Wergechik’s counsel in closing argument stated that “Wergechik was harmed. She was harmed because she lost her job. We had Dr. Karimpour testify, her depression became worse. It changed from a major depressive disorder, moderate, to severe. On January 16, 2015, after she gets terminated, and throughout 2016, she has a lack of energy, on medications, disheveled, unable to leave her house; very depressed and hopeless. She was harmed. There was no question that the conduct of her employer caused her tremendous pain, tremendous harm.”

Wergechik argues such examples merely reflect Wergechik being “able to sporadically sneak in some light evidence of ‘harm’ at trial.” In her reply brief she continues: “Yet, [AAM] admits that due to the trial court’s bifurcation order, Wergechik was not allowed to bring her experts to testify concerning her ‘lost wages and emotional distress’ because it ‘saved the jury from being distracted.’” She argues AAM “further admits that because of the court’s bifurcation order, Wergechik was not allowed to bring two economists and two psychologists, who were supposed to testify regarding Wergechik.”

Wergechik mischaracterizes the cited portion of AAM’s respondent’s brief which addressed the propriety of the bifurcation order itself and did not contain such admissions. AAM argued in the cited portion of its brief: “[T]he trial court properly exercised its discretion when it bifurcated the trial because bifurcation aided the presentation of evidence, reduced the time of trial, and avoided confusion of the issues. [Citation.] For example, the bifurcation order served the interest of judicial economy by obviating proof of damages. It permitted both parties to avoid incurring the cost and expense of presenting expert testimony regarding Wergechik’s lost wages and emotional distress, and saved the jury from being distracted and prejudiced by evidence that was irrelevant to whether AAM violated the law. Indeed, the joint witness list contained at least four expert witnesses, two economists and two psychologists, none of whom was called to testify unnecessarily on the extent of damages. . . . Thus there was a sound basis for the trial court’s order.”

As Wergechik has failed to cite to the record showing the trial court ever imposed her claimed limitations on the presentation of evidence at trial or improperly instructed the jury, we find no error.

C.

Wergechik’s Contentions of Evidentiary Error Are Without Merit.

Wergechik argues the trial court abused its discretion by excluding me-too evidence and an unredacted copy of the 15-page summary of grievances she provided AAM in October 2014. For the reasons we explain, the court’s exclusion of certain evidence did not constitute an abuse of discretion.

i.

Standard of review

The trial court’s rulings on the admissibility of evidence, whether made in limine or during trial, are reviewed for abuse of discretion. (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1555.) We review the trial court’s evidentiary rulings for abuse of discretion. (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 570.) We may reverse only if the appellant demonstrates the ruling was “‘so irrational or arbitrary that no reasonable person could agree with it.’” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

ii.

Me too evidence

“California courts have held so-called ‘me-too’ evidence, that is, evidence of gender bias against employees other than the plaintiff, may be admissible evidence in discrimination and harassment cases. (See Pantoja [v. Anton (2011)] 198 Cal.App.4th 87 [Pantoja]; Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740 (Johnson).) The relevance of evidence concerning conduct toward nonparty employees is inherently ‘“fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.”’ (Johnson, supra, at p. 767.) ‘[S]imilar considerations are involved in balancing the probative value of the evidence against its prejudicial effect.’ (Ibid.) Me too evidence is therefore not subject to any per se rule of exclusion, and may be admissible to prove a defendant’s motive or intent even where the conduct occurred outside the plaintiff’s presence and at times other than when the plaintiff was employed. (See Pantoja, supra, at pp. 115 116; see also Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379, 381, 388 . . . [evidence that employer discriminated against employees other than plaintiff ‘is neither per se admissible nor per se inadmissible,’ and instead ‘requires a fact-intensive, context-specific inquiry’].)” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 871.)

In her opening brief, Wergechik argues: “The trial court abused its discretion when it excluded all me-too evidence and pattern and practice evidence of sex discrimination and retaliation across the board, both when ruling on AAM’s motion in limine and when revisiting the issue during trial.”

Wergechik’s assertion is patently false. The trial court denied without prejudice AAM’s Motion in Limine No. 1 which sought an order precluding me too evidence which AAM defined as “evidence of third parties about their personal, individual employment experiences that in this case, which is not a workplace environment case, have nothing to do with [Wergechik’s] employment, or the individual that [Wergechik] claims mistreated her.”

Although the trial court denied Motion in Limine No. 1 and correctly refused to impose a per se rule of exclusion of me-too evidence, the court stated it would require a written offer of proof “for each witness” in order to determine the admissibility of me-too evidence. Wergechik argues the trial court erred by excluding the me-too testimony offered by Jo-Ann Armstrong and Lisa Johnson.

On the second day of trial, Wergechik filed offers of proof summarizing Armstrong’s and Johnson’s proposed me too testimony. Wergechik offered this testimony to prove AAM’s “discriminatory motive and mental state with respect to [Wergechik]’s unlawful treatment and termination” and that AAM has “a pattern and practice of gender-based discrimination.”

Armstrong’s offer of proof stated Armstrong would testify she had been excluded from meetings, talked down to, dismissed and belittled by her male boss (not Ryan); chaperoned by her male boss (not Ryan) at conferences; and afraid she would be retaliated against after she complained to Scott about harassment/discrimination and he did not do anything about it. Armstrong was also to testify that she believed there was a “culture of fear” at AAM, women were not treated as well as men at AAM, and senior women at AAM were treated poorly. Armstrong would testify that that she had expressed to Wergechik concern that women, such as Tracy Jones, were getting pushed out of AAM through reorganization.

As pointed out by AAM, the record shows Armstrong and Wergechik had completely different reporting structures and were at different levels. Armstrong did not claim that she was ever mistreated by Ryan because she was a woman. Armstrong remained a current employee as of the time of trial and had not been “restructured out,” notwithstanding her proffered testimony of AAM’s culture of fear and her opinion that women might be getting pushed out.

During a hearing, the trial court stated that, based on the offer of proof, it was not going to admit Armstrong’s testimony. The trial court cited Chen, supra, 96 Cal.App.4th 926, and stated it would not admit the proffered evidence for several reasons. The court stated that Armstrong’s testimony did not help Wergechik’s case. She was not a percipient witness to anything Wergechik experienced and Armstrong’s testimony would be insufficient to show a pattern and practice of discrimination. The court observed Wergechik’s allegation that AAM engaged in a pattern and practice of sex discrimination was not “an incantation that gets you to bring in chosen witnesses.” The court further observed that in any event, Armstrong’s testimony did not reflect a pattern and practice but only that Armstrong had “some gripes” about her employment situation. The court invited Wergechik to make a different offer of proof for the court to consider.

Wergechik’s offer of proof for Johnson stated that she would testify: (1) that after complaining about unfair treatment concerning Wergechik, she received a negative performance review that she was not a team player and was argumentative and, as a consequence, received a two-percent raise while men received a three-percent raise; (2) she complained about her negative performance review to Scott; (3) her male reports had a “greater commission structure than she had” and one of them was given a payoff bonus and the opportunity to earn a personal commission while she was not; (4) her commission pay was capped at 1.5 percent while her male direct reports had commissions capped at 1.5 percent; and (5) the executive team was a “‘group of guys [who] are very similar to each other; they look alike to a certain extent, they walk in packs, you know.’”

Like Armstrong, Johnson and Wergechik had completely different reporting structures and were at different levels. Wergechik reported to Ryan at AAM while Johnson reported to Heller at Anaheim Ducks Hockey Club. Aside from the pay differential issue, Johnson did not claim she was ever mistreated, whether based on gender or otherwise.

The court reached the same conclusion about Wergechik’s offer of proof regarding Johnson’s proposed testimony as it had with her offer of proof regarding Armstrong’s proposed testimony. The court added that some of Johnson’s proposed testimony would constitute inadmissible hearsay, opinion, and speculation.

We cannot say the trial court’s ruling constituted an abuse of discretion. The admission of me-too evidence must be evaluated by the trial court on a witness by witness basis. The trial court did precisely that: Its determinations that the proffered testimony did not reflect sufficiently similar circumstances to Wergechik’s circumstances to be admitted at the trial did not constitute an abuse of discretion.

iii.

Exclusion of summary of grievances document (trial exhibit No. 169)

Wergechik also argues the trial court abused its discretion by removing from evidence a copy of Wergechik’s 15-page summary of grievances. The court found this summary included hearsay, speculation, references to alleged wrongdoing that occurred outside of the limitations period, and references to me too evidence that the court had excluded.

Wergechik argues the entire unredacted document should have been admitted due to the application of the continuing violation doctrine. On this record, the trial court did not abuse its discretion by limiting evidence of pre-May 5, 2014 wrongdoing by finding the continuing violation doctrine inapplicable. The record supports the finding that the alleged unlawful conduct that occurred before the limitations period had not occurred with reasonable frequency and had not acquired a degree of permanence to trigger the application of the doctrine. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802.)

The trial court informed Wergechik’s counsel that if Wergechik wanted the document readmitted into evidence, the court would “have a sidebar discussion about redaction and things like that” but stated the court would not “send the document into the jury room unless it’s redacted according to the principles of in limine motion number one” and to address its “hearsay problems.” Wergechik did not take the trial court up on its offer to discuss specific redactions and readmission of the document into evidence.

D.

The Trial Court Did Not Abuse Its Discretion by Granting

AAM’s Motion to Strike Wergechik’s Costs.

Wergechik argues the trial court abused its discretion by granting AAM’s motion to strike Wergechik’s costs. We conclude the trial court acted within its discretion.

The amended judgment did not designate a prevailing party. It awarded Wergechik a $750 penalty on the section 1198.5(k) claim and stated judgment shall be entered in AAM’s favor on the remaining claims and “Defendant may recover costs in the amount of $___.”

On January 26, 2018, Wergechik filed a memorandum of costs seeking a costs award of $57,365.23; on January 24, 2018, AAM filed a memorandum of costs seeking a costs award in the amount of $247,719.39. Each party filed a motion to strike or tax the other party’s requested costs. The trial court granted both motions to strike costs and thereby denied both Wergechik’s and AAM’s requests for an award of costs.

At the hearing on the dueling motions, the trial court summarized the jury verdict as “almost 100 percent against [Wergechik]” and as having given AAM a “very lopsided victory.” The trial court continued: “So let’s look at the defendant’s motion today to tax or to strike the Wergechik cross memorandum for 57 grand. [¶] That’s based on the following arguments: First, under [Code of Civil Procedure] section 1033[, subdivision] (a), the court has the authority to strike the memorandum in its entirety because the trial recovery fell short of the $25,000 statutory minimum. Second, they say that the plaintiff rejected the defendant’s pretrial settlement offer under [Code of Civil Procedure section] 998, which is, I recall, in the neighborhood of 200 grand, I think. The 998 offer was put before me, 198,000 or something. Third, they say the plaintiff’s itemized request contains items which are [just not] recoverable as costs, like jury consultant fees. . . . [¶] I think all three of those reasons are perfectly sound. And so I’m going to strike the entirety of the [plaintiff’s] memorandum of costs.”

Section 1033, subdivision (a) of the Code of Civil Procedure makes an award of costs discretionary in an unlimited civil case when the amount of damages awarded in the judgment is less than what may be recovered in a limited civil case. (See Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1053.) Here, the amended judgment awarded Wergechik only the statutory penalty of $750 for prevailing on her section 1198.5(k) claim. Wergechik therefore recovered far less than the $25,000 maximum amount of damages that might be recovered in a limited civil case. (Code Civ. Proc., § 85, subd. (a).) The trial court did not abuse its discretion by granting AAM’s motion to strike Wergechik’s costs on that basis.

In her reply brief, Wergechik argues the trial court’s ruling denying her costs must be reversed under Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 (Chavez) because Wergechik’s attorney “had reasonable basis to value Wergechik’s damages well above $25,000.” Chavez is inapposite. In Chavez, the plaintiff brought a FEHA action and recovered damages in an amount that was less than half the $25,000 jurisdictional limit for a limited civil case. (Chavez, supra, 47 Cal.4th at p. 976.) The plaintiff had not brought the action as a limited civil case, and the trial court, relying on section 1033, subdivision (a), denied the plaintiff’s motion seeking a sizeable attorney fee award. (Chavez, supra, at p. 976.) The appellate court reversed, holding “‘section 1033 does not apply in actions brought under FEHA.’” (Ibid.)

The Supreme Court, reversing the appellate court, held: “As we explain, section 1033(a), interpreted according to its plain meaning, gives a trial court discretion to deny attorney fees to a plaintiff who prevails on a FEHA claim but recovers an amount that could have been recovered in a limited civil case. In exercising that discretion, however, the trial court must give due consideration to the policies and objectives of the FEHA in general and of its attorney fee provision in particular. Here, we further conclude that, in light of plaintiff’s minimal success and grossly inflated attorney fee request, the trial court did not abuse its discretion in denying attorney fees.” (Chavez, supra, 47 Cal.4th at p. 976, italics added.)

The Chavez court explained: “In determining whether a FEHA action should have been brought as a limited civil case, the trial court should consider FEHA’s underlying policy of encouraging the assertion of meritorious FEHA claims, and it should evaluate the entire case in light of the information that was known, or should have been known, by the plaintiff’s attorney when the action was initially filed and as it developed thereafter. [Citation.] In making this evaluation, the trial court should exercise caution to avoid ‘hindsight bias,’ which is the recognized tendency for individuals to overestimate or exaggerate the predictability of events after they have occurred. [Citations.] If, based on the available information, the plaintiff’s attorney might reasonably have expected to be able to present substantial evidence supporting a FEHA damages award in an amount exceeding the damages limit (now $25,000) for a limited civil case, or if the plaintiff’s attorney might reasonably have concluded that the action could not be fairly and effectively litigated as a limited civil case, the trial court should not deny attorney fees merely because, for example, the trier of fact ultimately rejected the testimony of the plaintiff’s witnesses or failed to draw inferences that were reasonably supported, although not compelled, by the plaintiff’s evidence. But if, to the contrary, the trial court is firmly persuaded that the plaintiff’s attorney had no reasonable basis to anticipate a FEHA damages award in excess of the amount recoverable in a limited civil case, and also that the action could have been fairly and effectively litigated as a limited civil case, the trial court may deny, in whole or in part, the plaintiff’s claim for attorney fees and other litigation costs.” (Chavez, supra, 47 Cal.4th at pp. 986-987.)

Thus, under Chavez, even a plaintiff who prevails on a FEHA claim, but in an amount under the jurisdictional limit, may be denied prevailing party attorney fees pursuant to Code of Civil Procedure section 1033, subdivision (a) if the trial court takes into consideration relevant FEHA policies. Here, unlike the plaintiff in Chavez, Wergechik did not recover on a FEHA claim in an amount short of the jurisdictional limit; she did not prevail on any of her FEHA claims. The FEHA policies relied upon in Chavez in evaluating a prevailing party attorney fees award in favor of a successful FEHA plaintiff are therefore inapplicable to this case.

Furthermore, at the hearing on the parties’ motions to strike costs, the trial court stated that it agreed with the jury and described Wergechik’s case as “weak.” The record does not support Wergechik’s argument the trial court abused its discretion.

II.

AAM’S APPEAL

A.

Sufficient Evidence Supports the Jury’s Finding AAM Violated Section 1198.5(k).

AAM contends insufficient evidence supports the jury’s finding that AAM violated section 1198.5(k) by failing to provide Wergechik the opportunity to inspect her personnel file. “‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) It is the province of the trier of fact to make credibility determinations. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926.)

Here, the jury was instructed on Wergechik’s section 1198.5(k) claim: “With regard to current employees, an employer is obliged to maintain a copy of their personnel records and to make those records available for inspection to the employee or his or her agent either at the place where the employee reports to work or at another location agreeable to both the employer and the employee.” No party objected to the trial court giving this instruction or challenges it on appeal.

Trial evidence showed that Wergechik sent a letter dated October 15, 2014 to Scott stating, “I would like to schedule an appointment with you or a representative to inspect my personnel file as soon as possible and to be provided with copies of all documents which are available to me under applicable law(s).” In a November 10, 2014 e mail to Scott, Wergechik reiterated that she had requested to inspect her personnel file and be provided with copies of all documents she was entitled to by law and was surprised she had not received copies of such documents to date. In a letter dated November 19, 2014, AAM’s attorney, Jason Weiss, wrote to Wergechik: “AAM will continue to respect and honor your leave, as required by law. With regard to your personnel file, it continues to be available for your inspection at a mutually agreeable time.” Scott testified that he did not send Wergechik a copy of her personnel file. When asked, “Did you ever provide Ms. Wergechik with the opportunity to review her personnel file at the Honda Center Offices,” Scott testified, “If I recall, I referenced something to that effect in e-mail that it would be available to her.” Scott testified that to his knowledge she did not inspect her file and her attorneys did not ask to review it before filing her lawsuit.

It is true that AAM’s obligation under section 1198.5(k), of which the jury was instructed, was to make the personnel file available for inspection by Wergechik or by her agent at the place where she reported to work or at a place mutually agreed upon by the parties. It is also true that in the appellate briefing, Wergechik argues that sufficient evidence supported her claim because AAM failed to provide her a copy of her personnel file. Her theory of liability at trial, as reflected in the special jury instruction, was not based on AAM’s failure to provide her a copy of her personnel file under section 1198.5(k) but AAM’s failure to allow her to inspect it.

Nevertheless, we must view AAM’s challenge to the jury’s verdict on this claim through the lens of the applicable substantial evidence standard of review. Looking through this lens, we see just enough evidence to support the jury’s finding that AAM did not meet its obligation to allow Wergechik the opportunity to inspect her personnel file. Instead of asking Wergechik when it would be convenient for her to come to work to inspect her personnel file, Weiss’s October 15, 2014 letter suggests that AAM’s willingness to allow such an inspection had been and continued to be conditioned on the inspection occurring at a “mutually agreeable” time. The jury could have found Weiss unreasonably burdened Wergechik’s rights and unreasonably delayed the inspection of her file.

Furthermore, Scott, Weiss, and Wergechik all testified at trial. The jury had the opportunity to observe each witness’s demeanor and make credibility determinations accordingly. We will not invade the province of the jury by reweighing the evidence or by replacing the jury’s credibility determinations with our own. We therefore reject AAM’s argument insufficient evidence supported the jury’s 11 to 1 verdict in favor of Wergechik on her section 1198.5(k) claim.

B.

The Trial Court Did Not Err by Granting Wergechik’s Motion to Strike AAM’s Costs.

AAM argues the trial court erred by granting Wergechik’s motion to strike its costs because “the trial court based its ruling on an incorrect legal standard in effect in 2017.” AAM argues it should have been awarded its costs because it had served an offer to settle under Code of Civil Procedure section 998 and Wergechik failed to obtain a more favorable judgment than the amount AAM had offered. AAM argues it was the “‘prevailing’ party for purposes of awarding its post-offer costs.”

Code of Civil Procedure section 998 provides in part: “(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. [¶] (b) Not less than 10 days prior to commencement of trial . . . any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. . . . [¶] . . . [¶] (c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.”

Subdivision (e) of section 998 provides: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.”

In October 2015, AAM submitted a written offer under Code of Civil Procedure section 998 to settle Wergechik’s claims for the amount of $119,375. Wergechik did not accept the offer. After judgment was entered, AAM filed a memorandum of costs seeking the recovery of its costs. The trial court granted Wergechik’s motion to strike AAM’s claimed costs on the grounds: (1) the court generally had discretion to deny costs to a successful defendant in a FEHA action; (2) Wergechik’s claims were weak but were not “subjectively groundless”; and (3) Code of Civil Procedure section 998 did not apply.

AAM does not challenge the trial court’s finding that Wergechik’s FEHA claims were nonfrivolous. AAM argues the trial court erred because Code of Civil Procedure section 998 applies to nonfrivolous FEHA claims.

The California Supreme Court in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 held a prevailing defendant cannot recover ordinary costs on FEHA claims “unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” Appellate courts have been divided regarding whether non-ordinary costs (e.g., expert witness fees) are recoverable by a prevailing defendant in a FEHA action.

On the one hand, in Holman v. Altana Pharma US, Inc. (2010) 186 Cal.App.4th 262, 281, the appellate court held “there is nothing in [Government Code] section 12965 that expressly disallows an award of expert witness fees to a prevailing FEHA defendant under Code of Civil Procedure section 998.” (Fn. omitted.) In Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521, the appellate court held that the trial court may award a prevailing defendant costs under Code of Civil Procedure section 998 in a nonfrivolous FEHA action.

On the other hand, the appellate court in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 554 (Arave) “part[ed] ways with the conclusion of [its] colleagues” in Holman and Sviridov and held Code of Civil Procedure section 998 “operates only as an adjustment to cost awards” under Code of Civil Procedure section 1032, subdivision (b), and so “it follows” that Government Code section 12965, subdivision (b) “overrides” Code of Civil Procedure section 998, subdivision (c). Accordingly, “[i]f a defendant may not obtain an award of costs under [Code of Civil Procedure] Section 1032[, subdivision] (b) [because] plaintiff’s claim[s] are nonfrivolous, the trial court may not augment an award of costs by awarding expert witness fees under [Code of Civil Procedure] Section 998[, subdivision] (c).” (Arave, supra, 19 Cal.App.5th at p. 553.)

In Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 84, the appellate court held: “We find Arave’s logic unassailable. The Legislature expressly pegs section 998 to [Code of Civil Procedure] section 1032. [Citation.] In non-FEHA actions, a ‘defendant is entitled under section 998 to those costs incurred after the settlement offer to which a prevailing party would be entitled under section 1032.’ [Citation.] In non-FEHA actions, where the special prevailing party cost statute is not an express exception to section 1032, a defendant is also entitled under section 998 to its postoffer costs. [Citation.] But in nonfrivolous FEHA cases, the prevailing party cost provisions are express exceptions to section 1032. [Citation.] It follows, then, that section 998 does not apply in nonfrivolous FEHA actions.”

As pointed out by AAM in its appellate briefing, the Legislature has since amended FEHA’s cost provision statute to specifically provide that, notwithstanding section 998 of the Code of Civil Procedure, a prevailing defendant may not recover attorney fees and costs against a plaintiff for nonfrivolous FEHA claims. (See Gov. Code, § 12965, subd. (b), as amended by Stats. 2018, ch. 955, § 5, eff. Jan. 1, 2019.) Citing the legislative history of that statute, the appellate court in Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 243 (Scott) held: “[W]e conclude that in amending Government Code section 12965, subdivision (b), the Legislature expressed an intent to clarify existing law regarding the recovery of attorney fees and costs in FEHA actions.[ ] The legislative materials demonstrate that the amendment was passed promptly after, and in response to, appellate court opinions expressing divergent views on this issue. We find the divergent opinions on this issue reveal an underlying ambiguity in the law, which had not been finally and conclusively resolved by our high court. Under these circumstances, we give due consideration to the Legislature’s expressed intent that it was clarifying not changing existing law by expressly stating that, notwithstanding section 998, a prevailing defendant may not recover attorney fees and costs against a plaintiff asserting and pursuing a nonfrivolous FEHA lawsuit. For all these reasons, we conclude the amended statute governs this case, and we need not address whether the statute operates retroactively or has retroactive effect.” (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 [“A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment”].)

We are persuaded by the appellate court’s reasoning in Scott and conclude Code of Civil Procedure section 998 does not apply to Wergechik’s FEHA claims because they are nonfrivolous.

AAM also argues that it is entitled to costs incurred after Wergechik failed to accept its Code of Civil Procedure section 998 offer as to Wergechik’s non-FEHA claim for wrongful termination in violation of public policy, which was dismissed before trial, and claim for unfair competition which did not appear in the second amended complaint. AAM cites Arave, supra, 19 Cal.App.5th at page 525 in which the appellate court remanded to the trial court to determine costs under Code of Civil Procedure section 998 for the plaintiff’s non-FEHA wage claim. AAM argues we should remand for the trial court to apportion costs on those two claims.

Unlike the wage claim in Arave, the two non-FEHA claims here were based entirely on the same allegations of discrimination and retaliation as AAM’s FEHA claims; AAM does not argue otherwise. AAM does not offer any legal authority or analysis supporting its argument that it is entitled to an award of costs under these circumstances. We therefore conclude the trial court properly granted Wergechik’s motion to strike costs claimed by AAM.

DISPOSITION

The amended judgment and postjudgment order denying the motions to strike or tax costs are affirmed. In the interests of justice, neither party shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.