Department 58

Hearing Date: September 13, 2022

Case Name: Kevork Kazandjian v. City of Los Angeles

Case No.: 19STCV21241

Matter: Motion to Tax Costs

Moving Party: Plaintiff Kevork Kazandjian

Responding Party: Unopposed

Tentative Ruling: Plaintiff’s Motion to Tax Costs is granted.

Background

This was an employment action. Kevork Kazandjian (Plaintiff) sued the City of Los Angeles (Defendant), alleging that Defendant retaliated against him for filing a prior lawsuit against them in May 2015 for violations of the Fair Employment and Housing Act (FEHA). The Complaint alleged two causes of action: (1) retaliation in violation of FEHA, and (2) retaliation in violation of Labor Code section 1102.5.

On April 6, 2022, this Court granted Defendant’s motion for summary judgment. Defendant subsequently filed a memorandum of costs, seeking to recover $935.00 in filing fees and $8,614.50 in deposition costs.

Plaintiff now moves to strike the memorandum of costs, arguing that Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97 (Williams) and Government Code section 12965 limit a defendant’s entitlement to costs under FEHA. He also asserts that his non-FEHA retaliation claim under the Labor Code is intertwined with his FEHA claim and is inseparable for purposes of recovery of costs. Defendant did not file an opposition.

Plaintiff’s request for judicial notice is granted. (Evid. Code, § 452, subd. (d).)

Plaintiff’s motion to strike the City’s cost memorandum is well taken; his motion is granted.

Discussion

Defendant has not shown that Plaintiff’s retaliation lawsuit was frivolous, unreasonable, or groundless.

Under the Fair Employment and Housing Act, “the court, in its discretion, may award to the prevailing party . . . reasonable attorney’s fees and costs, including expert witness fees, except that . . . a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (c)(6); see also Williams, supra, 61 Cal.4th at p. 115 [“A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so”]; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985; Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387-1388.)

Government Code section 12965 is an exception to the general rule under Code of Civil Procedure section 1032, subdivision (b) that a prevailing party is entitled to recovery of costs. The California Legislature intended the exception to encourage potentially meritorious FEHA suits. (Williams, supra, 61 Cal.4th at p. 112.)

In order to receive costs and fees then, a prevailing defendant in a FEHA case has the burden to first show that the action was frivolous, unreasonable or groundless. (See Lopez v. Routt (2017) 17 Cal.App.5th 1006, 1009; Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 549 [“prevailing defendants may recover only if they show the plaintiff’s FEHA claims are frivolous”].)

A plaintiff’s claim is frivolous if the cause of action was “ ‘obviously contrary to undisputed facts or well established legal principles specifically precluding recovery for the type of injury alleged’ ” or there is a “complete absence of evidence” to support the FEHA claim. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 869; Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73.)

Here, Defendant submitted its memorandum of costs, but failed to provide any argument or evidence showing that Plaintiff brought or continued litigating this case without an objective basis for believing it had potential merit. The failure to file any opposition “may be deemed a consent to the granting of the motion.” (Cal. Rules of Court, Rule 8.54(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

While Plaintiff’s case was concluded at summary judgment, this does not necessarily mandate a finding that it was unreasonable for him to bring the action. (Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1977) 434 U.S. 412, 421-422 [trial court should not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation”].) Here, this lawsuit “appears to be a routine case in which the plaintiff merely failed to achieve success on [his] claim.” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1390.)

The Court does not find that this case was frivolous, unreasonable or groundless. Plaintiff brought this suit for retaliation for events that allegedly occurred less than a year after his original FEHA suit was filed in 2015. Thus, there is a temporal proximity between the adverse actions and protected activity. In addition, Plaintiff’s opposition to the motion for summary judgment provides numerous declarations and depositions from other employees. Such evidence was proffered for the theory that individuals who knew about Plaintiff’s prior lawsuit tainted Plaintiff’s interviewers for promotion purposes. While this Court ultimately concluded that the relationship amongst these employees was too attenuated, this does not mean that there was a “complete absence of evidence.”

To the contrary, Defendant’s motion for summary judgment conceded that Plaintiff established a prima facie case of retaliation. (Motion, p. 12:1-2 [“the City does not challenge Plaintiff’s ability to establish a prima facie case of retaliation. Instead, the City offers legitimate, non-retaliatory reasons for each alleged adverse employment action”].) Therefore, because Plaintiff made a prima facie case of retaliation, the action is not frivolous. (Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784 [lawsuit was not frivolous “because plaintiff made a prima facie case of retaliation”].) “An action is not frivolous simply because the plaintiff’s FEHA claim failed. [Citation.] Where some evidence of retaliation is presented, an action will not be deemed frivolous.” (Ibid.) Accordingly, the motion to tax costs as to the FEHA claim is granted.

Plaintiff’s non-FEHA retaliation claim is intertwined with his FEHA retaliation claim and Defendant has not shown how costs may be allocated.

If a claim for which costs are recoverable is joined with claims for which costs are not recoverable, a court need not apportion the costs if the claims are so intertwined that it would be impracticable to separate them. (See Dane Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 771-772; see also Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-30.)

Therefore, if a lawsuit involves mixed FEHA and non-FEHA claims, a court should decide whether costs can be allocated between the two types of claims. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1059-1060 [“if the [plaintiffs’] pleading of non-FEHA causes of action had led [prevailing defendant] to incur additional allowable costs (for example, the cost of taking a deposition not otherwise required to contest the FEHA claim), [prevailing defendant] would be entitled to recover at least those costs under section 1032, subdivision (b) without first satisfying the Christiansburg standard”].)

The Court of Appeal in Roman noted the competing policies of cost recovery under Code of Civil Procedure section 1032 and Government Code section 12965, ultimately finding that the latter governs if the claims cannot be apportioned: “we believe it would weaken private enforcement of vital antidiscrimination and disability rights statutes, ‘tend[ing] to discourage even potentially meritorious suits by plaintiffs with limited financial resources’ [citation], to compel an award of costs under section 1032, subdivision (b), simply because the plaintiff, based on the same alleged misconduct, had pleaded other civil rights theories in addition to his or her FEHA causes of action.” (Ibid.) Thus, “[a]lthough section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not been increased by the inclusion of additional theories of liability to the primary FEHA claim asserted, the express public policy of Government Code section 12965, subdivision (b), controls.” (Id. at p. 1062.) Consequently, “[u]nless the FEHA claim was frivolous, only those costs [that can be] properly allocated to non-FEHA claims may be recovered by the prevailing defendant.” (Id. at p. 1062.)

The Court finds that Plaintiff’s non-FEHA claim for retaliation under the Labor Code is intertwined and inseparable from his FEHA claim for retaliation such that apportionment is impractical. As evidenced by the analysis in the motion for summary judgment, this Court combined the discussion as to the FEHA and Labor Code retaliation claims. (Minute Order dated Apr. 6, 2022.) The case presented overlapping issues and the same underlying facts. Specifically, the focus of Plaintiff’s case was whether Defendant had legitimate, non-retaliatory reasons for the alleged adverse employment actions. The protected activity, adverse employment actions, and proffered evidence were the same across both claims. (See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 [“ ‘ “[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts” ’ ”]; Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 186.) Therefore, all costs are subject to the Christiansburg standard codified in Government Code section 12965.

Accordingly, the Court declines to apportion costs attributable to non-FEHA causes of action. The motion to tax costs is granted in its entirety. Defendant shall recover no costs.