Recent Cases vi Defense Comment Summer 2019 EMPLOYMENT TORTS; DISCRIMINATION; FIRST AMENDMENT RIGHTS Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 243 Cal.Rptr.3d 445 FACTS: Plaintiff was a drummer in a band that played for defendant, a prominent singer who had produced thousands of records. Plaintiff developed cancer. Defendant terminated plaintiff, with the intention of hiring somebody else. Plaintiff sued, claiming age discrimination and disability discrimination. Defendant filed an anti-SLAPP motion under C.C.P. § 425.16. The trial court denied the motion. APPELLATE COURT DECISION: Reversed and remanded. Defendant had satisfied the first element of the anti-SLAPP procedure, namely, showing that defendant’s actions were “protected” actions. What the defendant was doing in refusing to rehire plaintiff was exercising his free speech rights, his right to choose a drummer of his own choosing. Therefore, it was improper to deny the motion to dismiss on that ground. The case is, however, remanded to the trial court with instructions that the trial court is to determine whether plaintiff has demonstrated a probability of prevailing on the action. This is the second element of the anti-SLAPP procedure. At that stage of the procedure, plaintiff will have to demonstrate that he has a probability of prevailing on the discrimination claims. COMMENT: Interesting decision in the context of employment discrimination claims where the defendant will claim that he has an absolute right (First Amendment) to make a decision as to whether to terminate or rehire a plaintiff and the court says thatthedefendanthasthatright,butthentheplaintiff must prove to the court that he has a probability of prevailing on the discrimination claim in order to survive the anti-SLAPP motion. COSTS AND ATTORNEY FEES; EXPERT FEES; C.C.P. § 998; FEHA ACTIONS Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 240 Cal.Rptr.3d 72 FACTS: Plaintiff was a server in a restaurant. She sued the restaurant owner for various employment-related claims, including harassment, discrimination, hostile workenvironment,etc. Shealsohadaclaimunderthe Fair Employment and Housing Act (FEHA). Most of her claims were dismissed prior to trial. She proceeded to trial on the FEHA claim and the jury returned a defense verdict. In post-trial proceedings, the trial court determined that plaintiff’s action was not unreasonable or frivolous, but did award defendant costs, including expert fees and attorney fees. The reason was based on C.C.P. § 998 since plaintiff had rejected a pre-trial settlement offer from defendant and the “costs” were incurred post-settlement offer. APPELLATE COURT DECISION: The jury verdict in favor of defendant was affirmed. The award of costs, including attorney fees and expert fees, was reversed. Under the FEHA provisions, an exception is made if the action is not unreasonable or frivolous, and costs normallyawardedunderC.C.P.§998arenotpermitted in such FEHA actions.