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Huerta v. Kava Holdings, Inc. (2018)

November 14, 2018

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Horvitz & Levy LLP obtained affirmance of a judgment in an action alleging retaliation, harassment, and discrimination under California’s Fair Employment and Housing Act (FEHA).

In late December 2013, two servers at the Wolfgang Puck restaurant in the Hotel Bel-Air engaged in a verbal and physical altercation on the restaurant floor. The hotel investigated the incident and then fired both servers. One of them, plaintiff Felix Huerta, sued the hotel under FEHA, alleging retaliation, harassment, discrimination, and failure to prevent harassment and discrimination. After a five-week trial, the superior court ordered a nonsuit on the retaliation claim but submitted the remaining claims to the jury, which returned a defense verdict. The trial court later granted the hotel’s request for costs and expert fees under Code of Civil Procedure section 998.

Plaintiff appealed from the judgment and cost award. Horvitz & Levy LLP represented the hotel as respondent on appeal. The Court of Appeal (Second District, Division Eight) affirmed the judgment and reversed the cost award. The court concluded that nonsuit on the retaliation claim was proper because plaintiff did not engage in protected activity under FEHA when he reported the altercation to management. Plaintiff also challenged the trial court’s ruling preventing his counsel from arguing in closing that the altercation was evidence of unlawful harassment. The Court of Appeal held that plaintiff forfeited this argument by failing to object at the time the ruling was made. Finally, the appellate court reversed the cost award on the ground that a prevailing defendant in a FEHA case may recover costs under section 998 only if the case is determined to be frivolous. Because the trial court concluded this case was not frivolous, there was no basis for awarding costs under section 998.