Judge Armen Tamzarian, Case Number: 19STCV30385, Date: 2023-10-03 Tentative Ruling

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Defendant Massive Prints, Inc. moves to tax costs stated in plaintiff Dora Hernandez’s memorandum of costs.

Under Code of Civil Procedure section 1032,[1] the prevailing party is entitled to recover costs. (§ 1032, subd. (b).) The Fair Employment and Housing Act (FEHA) independently provides that “the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.” (Gov. Code, § 12965, subd. (c)(6).)

Section 1033.5, subdivision (a) sets forth a list of allowable costs. Section 1033.5, subdivision (b) lists costs that are not allowable. “ ‘An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).)’ ” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128 (Sanford).) All costs awarded by the court must be reasonable and necessary. (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 118, pp. 657-658.)

If the items on a memorandum of costs appear proper on their face, the prevailing party has produced prima facie evidence the costs were reasonable and necessary (Seaver v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557 (Seaver); Doe v. Department of Children & Family Services (2019) 37 Cal.app.5th 675, 693), and the burden is on the party seeking to tax costs to show otherwise. (Sanford, supra, 246 Cal.App.4th at p. 1128; accord Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 [If the claimed costs are expressly allowable, “ ‘the burden is on the objecting party to show them to be unnecessary or unreasonable’ ”].) “[I]t is not enough for the losing party to attack the submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seaver, at p. 1557.)

Plaintiff’s memorandum of costs claims $3,502.28 in expenses under category 1, filing and motion fees. Defendant moves to tax $2,733.18 of these costs. It argues many of the costs are not “filing and motion fees” paid to the court under section 1033.5, subdivision (a)(1). The memorandum of costs, however, constitutes prima facie evidence that these expenses were “[f]ees for the electronic filing or service of documents through an electronic filing service provider” under subdivision (a)(14). Even if some of these expenses are not included in any category of expressly recoverable costs, plaintiff shows they were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial.

A prevailing party may recover costs of “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” (§ 1033.5, subd. (a)(3)(A).)

Defendant moves to tax $122.40 plaintiff claims in this category paid to Bolster Legal Services to summarize a deposition transcript. Plaintiff agreed to withdraw that expense. (Opp., p. 4.)

Defendant also moves to tax $861.20 for the deposition of Francine Herard as duplicative. Attachment 4e to the memorandum of costs includes two relevant entries: (1) “06/19/2023 Barkley Court Reporters Depo of PMK Francine Heard 9/30/20 $702.85”, and (2) “09/30/20 Francine Heard $861.20.” Plaintiff shows she paid both expenses: $702.85 for a certified copy of the deposition transcript and $861.20 for the original. (Anglin Decl., Ex. 5.) Section 1033.5, subdivision (a)(3)(A) expressly allows both.

Defendant moves to tax several items plaintiff claims in category 5, service of process. A prevailing party may recover costs for “[s]ervice of process by a public officer, registered process server, or other means.” (§ 1033.5, subd. (a)(4).)

Defendant challenges $231.50 plaintiff claims for service of process on defendant’s counsel Pfaster & Berman and $212.00 plaintiff claims for service of process on defendant’s counsel William Bloch. (Memo. of Costs, § 5.a & b.) Plaintiff presents an invoice from All City Legal & Messenger Services dated May 18, 2023, for $443.50 for ‘service of court documents.” (Anglin Decl., Ex. 6.)

That was not “service of process.” That was service of “[n]otices or other papers.” (§ 1010.) “Service of process” is a term of art limited to a summons or other means of acquiring personal jurisdiction over the person served. (See §§ 415.20, 416.20, 416.40, 416.90; Bus. & Prof. Code, § 22350, et seq. [requirements for registered process servers]; Gov. Code, § 26660, subd. (a) [“ ‘Process’ includes all writs, warrants, summons, and orders of courts of justice, or judicial officers” in statutes regarding service by sheriff].) The court will tax these costs.

Defendant Massive Prints, Inc. also moves to tax $555.57 for service of process on former co-defendant Oasis Outsourcing, Inc. Plaintiff dismissed Oasis Outsourcing as a defendant. As “a defendant in whose favor a dismissal is entered,” Oasis Outsourcing is a prevailing party. (§ 1032, subd. (a)(4).) The opposition provides no authority permitting a plaintiff who prevails against one defendant to recover costs exclusively attributable to the plaintiff’s action against a different, prevailing defendant. The court will tax this cost.

Finally, defendant moves to tax $441.75 claimed for service of subpoenas on witnesses Maria Rosales, Dr. Musher, and Shane Oliver because plaintiff did not call them to testify at trial. That plaintiff ultimately did not call these witnesses does not make the expenses unreasonable or unnecessary. Plaintiff reasonably incurred the cost of serving subpoenas on these witnesses to preserve the ability to present their testimony.

Defendant moves to tax $3,500 claimed as an “ordinary witness fee” for Dr. Marc Arnush. That is not an “ordinary witness fee[] pursuant to Section 68093 of the Government Code.” (§ 1033.5, subd. (a)(7).) Plaintiff explains she paid that amount because Dr. Arnush’s “employer required that Plaintiff pay the doctor’s hourly fee …

in order that Dr. Arnush be allowed to be off work and for the day.” (Anglin Decl., ¶ 10, Ex. 9.)

Plaintiff served a subpoena on Dr. Arnush. (Memo. of Costs, att. 5.d.) “The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person’s attendance at a particular time and place to testify as a witness.” (§ 1985, subd. (a).) Serving a subpoena on Dr. Arnush sufficed to require him to appear at trial. That plaintiff agreed to pay his employer thousands of dollars it was not entitled to was at most merely convenient to plaintiff. The court will tax this cost.

Defendant moves to tax all $18,495.83 plaintiff claims for expert witness fees. “Fees of experts not ordered by the court” are “not allowable as costs, except when expressly authorized by law.” (§ 1033.5, subd. (b)(1).) Government Code section 12965, subdivision (c)(6) expressly gives courts discretion to award “expert witness fees” to a prevailing plaintiff. The court exercises its discretion to do so. Though the jury did not ultimately award damages based on these experts’ testimony, that does not retroactively make them unnecessary. It was reasonably necessary for plaintiff to incur these expenses in attempting to recover additional damages.

Defendant moves to tax $4,588.21 plaintiff claims for models, enlargements, or photocopies of exhibits. A prevailing party may recover costs for models, enlargement of exhibits, and photocopies of exhibits “if they were reasonably helpful to aid the trier of fact.” (§ 1033.5, subd. (a)(13).) The court concludes plaintiff’s exhibits were reasonably helpful to aid the trier of fact. Any costs in this category not expressly allowable were reasonably necessary to the conduct of the litigation.

Defendant moves to tax $87,018.89 in court reporter fees. In general, “[c]ourt reporter fees as established by statute” are allowable costs. (§ 1033.5, subd. (a)(11).) Pursuant to Government Code section 68086, a party may retain a court reporter to serve as the official reporter pro tempore where, as here, the court does not provide one. (Gov. Code, § 68086, subd. (d)(2).) The fees for these services are recoverable. (Ibid.) By contrast, court reporter fees for transcription are not recoverable unless ordered by the court. (§ 1033.5, subd. (b)(5).)

Defendant argues plaintiff cannot recover these costs because they are for “[t]ranscripts of court proceedings not ordered by the court.” (§ 1033.5, subd. (b)(5).) It is true that plaintiff’s invoices include transcripts, but they also include recoverable court reporter fees. As to the cost of the transcripts, the court exercises its discretion to award these expenses under Government Code section 12965, subdivision (c)(6). The court finds all expenses plaintiff claimed in this category were reasonably necessary.

Defendant moves to tax $42,227.52 in costs plaintiff claims for delivering copies, “investigative services,” parking and mileage, hearing transcripts, and for “Gold Trial Services.” (Memo. of Costs, att. 16.a.) The court exercises its discretion to award these costs. All were reasonably necessary to trying this case.

The fee of $29,590 for Gold Trial Services was reasonable. Plaintiff paid “a technician … to assist the trial attorney with the presentation of evidence and to set up, manage and operate the monitors and electronic databases for presentation of evidence using Trial Director” software. (Anglin Decl., ¶ 24.) “Use of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors.” (Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1374.) Such an expense also constitutes “electronic presentation of exhibits, including costs of rental equipment and electronic formatting.” (§ 1033.5, subd. (a)(13).) Based on its observations during trial, the court finds the equipment and service used here materially improved the presentation of plaintiff’s evidence and the jury’s ability to understand it. This expense was not merely convenient or beneficial to plaintiff’s case, it was reasonably necessary.

Finally, defendant moves to tax $114,490.67 in prejudgment interest. Plaintiff relies on Civil Code section 3291 and her section 998 offer to recover prejudgment interest. “Civil Code section 3291 mandates the award of prejudgment interest in ‘any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person ...,’ where the defendant has rejected the plaintiff's settlement offer under Code of Civil Procedure section 998 and the plaintiff then obtains a more favorable judgment.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1001, (Bihun) disapproved on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.)

Plaintiff may not recover prejudgment interest because this was not an “action brought to recover damages for personal injury” under Civil Code section 3291. “[T]he language of the statute reveals that the Legislature was seeking to restrict prejudgment interest in a particular type of award, ostensibly to encourage early settlement and to compensate injured plaintiffs for the unfair withholding of insurance proceeds.” (Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 Cal.3d 121, 129–130.) “ ‘The Legislature intended different treatment of personal injury actions because of the manifest greater prejudice of delay in recovering personal injury damages as compared to contractual or business-tort losses given the probability personal injury plaintiffs are likely to be physically as well as monetarily impaired.’ ” (McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231.) “[I]n analyzing whether an action falls within the ambit of section 3291 a court must focus on the nature of the tort rather than the type or extent of the damages suffered in the particular case.” (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1437 (Holmes).)
The Court of Appeal has held that “a sexual harassment claim under FEHA seeks to vindicate decidedly personal rights” and thus “comes within the ambit of Civil Code section 3291.” (Bihun, supra, 13 Cal.App.4th at p. 1005.) The court reasoned,

“ ‘ “An injury is personal when it impairs the well-being or the mental or physical health of the victim.” ’ [Citations.] It is beyond dispute sexual harassment in the workplace has this effect. As one commentator familiar with the subject put it, ‘[Sexual] harassment exists in terribly harsh, ugly, demeaning, and even debilitating ways.... It is a form of violence against women as well as a form of economic coercion... .’ [Citation.] The mere fact sexual harassment occurs in the workplace does not convert the invasion of a personal right into the invasion of an economic one. ‘The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” ’ ” (Ibid.) The court further stated that sexual harassment constitutes “violation of the personal right to be free from unwanted and unwelcome sexual advances.” (Ibid.)

For wrongful termination claims, however, the Court of Appeal has held Civil Code section 3291 does not apply. In Holmes, the court stated, “[W]e cannot say that a tortious wrongful termination action is one to recover personal injury damages within the meaning of the statute. A wrongful termination claim primarily involves the infringement of property rights, not personal injury.” (Holmes, supra, 17 Cal.App.4th at p. 1436.) “[T]he nature of a tortious wrongful termination action is not to vindicate the plaintiff’s personal interest. Rather, the essence of such claim is to vindicate the public interest.” (Ibid.) Distinguishing Bihun, the court noted “it is the employer's violation of a public policy resulting in the loss of a tangible economic benefit (a job), rather than the invasion of a personal freedom interest, which primarily defines the action.” (Id. at p. 1437, fn. 15; accord Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 754 [following Holmes when interpreting phrase “personal injury” in section 425.11].)

This action is analogous to one for wrongful termination. Plaintiff did not bring a claim for harassment based on any protected status, let alone sexual harassment. In contrast with discrimination, which concerns unequal terms and conditions of employment, “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) It occurs when the defendant subjects the plaintiff to “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951.)

Moreover, even if plaintiff had alleged harassment, her complaint arose from the protected classes of age, disability, and engaging in protected activity under FEHA. (Comp., ¶¶ 12-17.) Any harassment claim therefore would not have involved “ ‘violence against women’ ” or “violation of the personal right to be free from unwanted and unwelcome sexual advances.” (Bihun, supra, 13 Cal.App.4th at p. 1005.)

The opposition argues, “Plaintiff prevailed at trial on her claims for failure to engage in the interactive process and failure to accommodate. These claims involve injury to the person and are not property rights or interests that inure to the public. In fact, the essence of these claims is the failure to accommodate a personal injury that is a disability and to fail to engage in an interactive process with the employee regarding accommodations for the disability.” (Opp., p. 14.) The essence of these claims arises from the right to “reasonable accommodation for the [employee’s] known physical or mental disability” (Gov. Code, § 12940, subd. (m)(1), italics added), regardless of whether that disability arises from any “personal injury.” That plaintiff’s disability arose from an injury does not change “the nature of the tort.” (Holmes, supra, 17 Cal.App.4th at p. 1437.)

Unlike harassment, plaintiff’s claims concern the process of accommodating employees for the sole purpose of helping them do their jobs. (See Gov. Code, § 12926, subd. (p) [defining “Reasonable accommodation”].) To be protected under FEHA, an employee with a disability (or “personal injury”) must be able “to perform the employee’s essential duties.” (Gov. Code, § 12940, subd. (a)(1).) “Although section 12940 proscribes discrimination on the basis of disability, it expressly limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 39.) “An applicant or employee has the burden of proof to establish that [he or she] is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation.” (Cal. Code Regs., tit. 2, § 11066(a).) That plaintiff’s claims would not apply to an employee whose “personal injury” is so severe that she cannot work supports the conclusion that an action for failure to accommodate disability and failure to engage in the interactive process is not “brought to recover damages for personal injury.” (Civ. Code, § 3291.)

Like wrongful termination, the primary purpose of these claims is to vindicate the public interest in permitting disabled people to work and to protect employees’ property rights related to their employment. Though plaintiff ultimately recovered only emotional distress damages, the “court must focus on the nature of the tort rather than the type or extent of the damages suffered in the particular case.” (Holmes, supra, 17 Cal.App.4th at p. 1437.)

Moreover, regardless of the claims on which she ultimately prevailed, plaintiff’s section 998 offer proposed a settlement shortly after filing her initial complaint. The initial complaint’s first cause of action alleged “discrimination based on actual and/or perceived disability.” (Comp., p. 6.) Plaintiff alleged her disability was a substantial motivating factor “in the discriminatory and retaliatory treatment [s]he was subjected to, as herein alleged, including the termination of her employment.” (Id., ¶ 21.) The seventh cause of action alleged “wrongful and tortious discharge” (id., p. 14) arising from “terminating Plaintiff’s employment” (id., ¶ 53).

This action was not brought to recover damages for personal injury. Civil Code section 3291 does not apply.

Even if plaintiff had brought an “action to recover damages for personal injury” under Civil Code section 3291, she could not recover prejudgment interest because her section 998 offer was invalid. “A 998 offer is valid only if . . . the offeror knew that the offeree had reasonable access to the facts necessary to ‘intelligently evaluate the offer.’ ” (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 921 (Licudine).) In making this determination, “three factors are especially pertinent: (1) how far into the litigation the 998 offer was made; (2) the information available to the offeree prior to the 998 offer’s expiration; and (3) whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded.” (Ibid.)

The first two factors weigh heavily against plaintiff. Generally, if a section 998 offer is made at the time the lawsuit is filed or soon thereafter, the offeree is less likely to have sufficient information upon which to evaluate it. (Licudine, supra, 30 Cal.App.5th at p. 925; Najera v. Huerta (2011) 191 Cal.App.4th 872, 875 [receiving offer at same time complaint is served].) Plaintiff’s proof of substituted service on defendant Massive Prints, Inc. states defendant was served on October 15, 2019.

Plaintiff served her section 998 offer only three days later on October 18, 2019. (Anglin Decl., Ex. 2.)

Defendant had little information available to evaluate the offer. “[T]he offeree needs information bearing on the issue of liability as well as on the amount of damages because these are the issues upon which a verdict would rest and because the 998 offer, if accepted, would be in lieu of that verdict.” (Licudine, supra, 30 Cal.App.5th at p. 925.) The offer expired before defendant had time to conduct any discovery. Defendant had some information relevant to liability. But for the amount of damages, defendant had minimal information.

Defendant’s human resources director, Francine Herard, states, “At the time the Section 998 offer was served, October 18, 2019, Massive Prints had no details on any economic losses Ms. Hernandez might be claiming. We knew from the workers compensation case that there was no significant emotional distress being claimed, and Ms. Hernandez’s injury claims seemed very suspicious, if not exaggerated, and her pain claims seemed to migrate to different areas of her body, depending on what she was claiming on any particular day.” (Herard Decl., ¶ 6.) Defendant also necessarily knew how much it paid plaintiff before terminating her but had no way of knowing about plaintiff’s earnings after that. Aside from this information, defendant had notice only of the complaint’s boilerplate allegations that plaintiff “has suffered and continues to suffer, substantial damages including, but not limited to loss of wages as well as other job benefits, humiliation, embarrassment, mental and emotional distress and discomfort as well as an aggravation and/or exacerbation of her disabilities in an amount to be proven at trial.” (Comp., ¶ 33.)

Only the third factor favors plaintiff. Nothing in the record shows defendant told plaintiff it lacked sufficient information to evaluate the offer or that it asked for more information. Defendant instead asserts that its former counsel served with the 998 offer never presented it to Massive Prints, Inc. (Herard Decl., ¶¶ 3-4, 7.)

After evaluating all relevant factors, the court concludes defendant met its burden of showing the offer was invalid. Plaintiff argues the $75,000 offer was a “bargain compared to the outcome of the trial.” (Opp., p. 8.) That may be so in hindsight. The reasonableness of the offer must be evaluated “in light of the circumstances ‘at the time of the offer’ and ‘not by virtue of hindsight.’ ” (Licudine, supra, 30 Cal.App.5th at p. 924.) Based on the circumstances at the time, plaintiff’s section 998 offer was not a good faith offer to compromise. She made it too early to permit defendant to intelligently evaluate it. Plaintiff strategically served it right away to either get an easy settlement before defendant knew what it was up against, or so it would be rejected and therefore maximize plaintiff’s potential benefits under section 998 and Civil Code section 3291. The court therefore will tax $114,490.67 in prejudgment interest.

Defendant Massive Prints, Inc.’s motion to tax costs is granted in part. The court taxes $119,112.14 in costs set forth in plaintiff’s memorandum of costs as follows:

Plaintiff Dora Hernandez shall recover $182,314.44 in costs from defendant Massive Prints, Inc.

[1] Except as otherwise stated, all future section numbers shall refer to sections of the Code of Civil Procedure.

[2] Plaintiff’s memorandum of costs erroneously states a total of $335,946.89. The sum of her claimed costs is $301,426.58.

Category	Claimed	Taxed	Allowed
Filing/motion fees	$ 3,502.38	$ -	$ 3,502.38
Jury fees	$ 4,264.97	$ -	$ 4,264.97
Deposition costs	$ 17,370.80	$ 122.40	$ 17,248.40
Service of process	$ 2,087.22	$ 999.07	$ 1,088.15
Witness fees	$ 21,995.73	$ 3,500.00	$ 18,495.73
Court reporter fees	$ 87,018.89	$ -	$ 87,018.89
Models, etc.	$ 4,588.21	$ -	$ 4,588.21
Interpreter fees	$ 4,650.00	$ -	$ 4,650.00
Other	$ 155,948.38	$114,490.67	$ 41,457.71
Total	$ 301,426.58[2]	$119,112.14	$ 182,314.44