Wilson Turner Kosmo Obtains Win for Target in Employment-Retaliation Appeal Affirming Cost Awarded and the Retailer as Prevailing Party

Wilson Turner Kosmo Obtains Win for Target in Employment-Retaliation Appeal Affirming Cost Awarded and the Retailer as Prevailing Party

A Wilson Turner Kosmo trial team achieved a major appellate victory in an employment-retaliation case on behalf of national retailer Target Corporation (TGT-NYSE), finally bringing the case to a close. WTK partners Claudette Wilson and Emily Fox, and associate Mark Rein, successfully defended two post-trial orders in the Fourth District Court of Appeal.

In its decision filed April 4, the appellate court first affirmed the San Diego Superior Court’s order denying a Target employee’s motion for attorneys’ fees and upheld the court’s order awarding Target its costs. The trial court had accepted Target’s argument that an employer may recover costs in litigation brought under the Fair Employment and Housing Act (FEHA), even without proving the employee’s claims were frivolous, if the employee rejected a reasonable California Code of Civil Procedure section 998 offer to compromise.

“We are thrilled with this outcome,” Wilson said. “As plaintiff’s counsel actively move to create a law that eliminates a defendant’s ability to recover costs in FEHA cases under California’s Code of Civil Procedure, this case is an important victory for all employers.”

The plaintiff, Kirk Broten, worked for Target from 2005 until his termination in 2013. A former executive team leader, Broten claimed he was wrongfully terminated in retaliation for complaining about conduct he believed constituted workplace harassment and discrimination. In 2015, Target made a generous section 998 offer to compromise that included all reasonably incurred costs and attorneys’ fees, which Broten rejected.

At trial, the WTK team successfully proved Broten was discharged for legitimate reasons. After a near three-week trial, a San Diego jury returned a mixed-motive verdict, finding that Target would have terminated Broten for his ongoing poor performance, regardless of any retaliatory intent. The jury awarded Broten no damages and the trial court denied Broten’s post-trial requests for declaratory and injunctive relief.

Broten, who was represented by Carney Shegerian of Shegerian & Associates, had sought more than $3 million in compensatory and punitive damages. Despite failing to obtain a single dollar, he moved for nearly $1.7 million in attorneys’ fees pursuant to the California Supreme Court’s decision in Harris v. City of Santa Monica. The request was denied because the trial court found Broten was not the prevailing party. “Only [a] Plaintiff who prevails on a [Fair Employment and Housing Act] FEHA based cause of action is entitled to an award of attorney fees,” Superior Court Judge Joel Wohlfeil stated at the time of the defense verdict.

Target then moved for legal costs and was awarded approximately $66,000, despite the California Supreme Court’s recent ruling in Williams v. Chino Valley Independent Fire District that held an employer may generally only recover its costs in a FEHA case if the employee’s claims are found to be frivolous. Given Broten’s rejection of Target’s offer to compromise, the trial court found that costs could be awarded even without a finding of frivolousness.

On appeal, Broten contended Target should not be entitled to its costs because his FEHA claims were meritorious and that, at a minimum, he was entitled to his attorneys’ fees incurred before he had rejected Target’s settlement offer. The appellate court disagreed and affirmed both post-trial orders.