Judge: Christopher K. Lui, Case: 19STCV28074, Date: 2023-06-29 Tentative Ruling

Case Number: 19STCV28074    Hearing Date: June 29, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. 

Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff Emily Carlsten’s motion to strike the memorandum of costs in its entirety is GRANTED.

ANALYSIS

Motion To Tax Costs

            Plaintiff argues that the Court should not award Defendant its costs because this action was not frivolous, without foundation, or unreasonable.

In 2021, the Legislature amended the FEHA attorney’s fees and costs provision in Gov. Code, § 12965(c)(6) to read as follows:

In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, 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(c)(6).)

Robert's discrimination cause of action was brought under FEHA. (Gov. Code, § 12940.) “In civil actions brought under [FEHA], the court, in its discretion, may award to the prevailing party … reasonable attorney's fees and costs, including expert witness fees.” (Gov. Code, § 12965, subd. (b).) “Despite its discretionary language, however, the statute applies only if the plaintiff's lawsuit is deemed unreasonable, frivolous, meritless, or vexatious. … ‘ “[M]eritless” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case … .’ ” (Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948–949 [84 Cal. Rptr. 3d 526], fn. omitted.) “[A] plaintiff's ability to pay must be considered before awarding attorney fees [in a FEHA action] in favor of the defendant.” (Citation omitted.) A trial court awarding attorney's fees to a prevailing defendant under Government Code section 12965, subdivision (b) also must make “express written findings” demonstrating that it has applied the proper standards. (Citation omitted.) 

(Robert v. Stanford University (2014) 224 Cal.App.4th 67, 70-73.)

            Here, Defendant indicates that it is only seeking costs associated with Plaintiff’s third cause of action for wrongful termination because Plaintiff did not oppose the motion for summary adjudication on this cause of action. However, Defendant cites no case law that the Court can parse out certain causes of action for purposes of awarding a prevailing Defendant costs pursuant to Gov. Code § 12965(c)(6). The Court declines to engage in such an apportionment.

            Defendant does not present a convincing argument that this action was frivolous, unreasonable or groundless when brought, nor whether Plaintiff continued to litigate this action when it became clear that it was frivolous, unreasonable or groundless. As such, the Court finds that the standard set forth in Gov. Code § 12965(c)(6) has not been satisfied to permit prevailing Defendant to recover costs.

As such, the motion to strike the memorandum of costs in its entirety is GRANTED.