Neeble-Diamond v. Hotel Cal. By the Sea, LLC, 99 Cal. App. 5th 551 (2024)

Amanda Neeble-Diamond sued her employer for violation of the Fair Employment and Housing Act (FEHA), but after a jury concluded she was an independent contractor rather than an employee, the trial court entered judgment in favor of the employer (Hotel California). Hotel California then filed a motion for attorney’s fees and a cost memorandum. Neeble-Diamond successfully opposed the motion for attorney’s fees on the ground that Hotel California had failed to establish that her FEHA claims were “objectively frivolous,” relying upon Williams v. China Valley Indep’t Fire Dist., 61 Cal. 4th 97 (2015) and Cal. Gov’t Code § 12965(c)(5), but she failed to file a timely motion to tax costs. The trial court refused to excuse the failure to file a timely motion to tax costs and awarded Hotel California more than $180,000 in costs. The Court of Appeal reversed, holding that Hotel California had failed to file a motion for an award of costs but had simply filed a cost memorandum requesting the court clerk to enter costs – but “the clerk has no authority to exercise discretion in awarding costs, let alone to make the frivolousness finding required by Cal. Gov’t Code § 12965.”