Scott v. City of San Diego

In 2015, San Diego Police Department Sergeant Arthur Scott sued the City of San Diego (City), alleging race discrimination and retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)).  Scott rejected a $7,000 offer to compromise made by the City under Code of Civil Procedure section 998 and proceeded to trial, where the City prevailed.  The trial court awarded the City a total of $51,946.96 in costs incurred after it served its Code of Civil Procedure section 998 offer, even though the trial court had found that plaintiff's FEHA claims were not frivolous.  While this appeal was pending, the Legislature amended FEHA's cost provision statute to specifically state that, notwithstanding section 998 of the Code of Civil Procedure, a prevailing defendant may not recover attorney fees and costs against a plaintiff asserting non-frivolous FEHA claims.  (See Gov. Code, § 12965, subd. (b), as amended by Stats. 2018, ch. 955, § 5, eff. Jan. 1, 2019.)  We conclude that, with this amendment, the Legislature sought to clarify existing law, rather than to change it.  "A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment."  (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter).)  We therefore apply the amended statute here and reverse the trial court's award of costs to the City. 

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