Judge: Colin Leis, Case: 19STCV04889, Date: 2025-03-04 Tentative Ruling

Case Number: 19STCV04889    Hearing Date: March 4, 2025    Dept: 74

Jorge Polzin v. UCLA Health

Plaintiff Jorge Polzin’s’s Motion to Strike or Tax Costs

BACKGROUND 

            Plaintiff Jorge Polzin (“Plaintiff”) filed this action against the Regents of the University of California (named as UCLA Health) (“Defenda\nt”) on February 14, 2019, for (1) military status harassment (Gov. Code, § 12940 et seq.) and (2) discrimination against a member of the military (Mil. & Vet. Code, § 394 et seq.).

            The Court entered judgment for Defendant after a jury verdict on December 19, 2024.

            Defendant filed its memorandum of costs on January 10, 2025.

            Plaintiff timely moved to strike or tax Defendant’s costs bill on January 28, 2025. Defendant filed its opposition on February 19, 2025, and Plaintiff replied on February 25, 2025.

DISCUSSION 

            1. Defendant’s memorandum of costs was timely filed.

Plaintiff argues Defendant’s memorandum of costs was untimely because Defendant filed and served it seventeen days after notice of entry of judgment, whereas Rule of Court 3.1700(a)(1) requires that it be filed and served within fifteen days. Defendant concedes the timeline, but argues it was entitled to a five-day extension based on Code of Civil Procedure section 1013.

Defendant is correct. (See Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353 [applying section 1013 to filing of costs bill].)

Defendant’s memorandum of costs was timely filed.

2. Defendant is not entitled to costs.

 “Government Code section 12965, subdivision (b), governs cost awards in FEHA actions, allowing trial courts discretion in awards of both attorney fees and costs to prevailing FEHA parties.  . . . [And] in awarding attorney fees and costs, the trial court's discretion is bounded by the rule of Christiansburg [Garment Co. v. EEOC (1978) 434 U.S. 412]; an unsuccessful FEHA plaintiff should not be ordered to pay the defendant's fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99-100.)

To recover its costs, Defendant must show either (1) that Plaintiff’s FEHA claims were meritless, and/or (2) that Plaintiff’s non-FEHA claims are not subject to section 12965(b).

                        a. Plaintiff’s FEHA claim was not meritless.

On the former point, Defendant makes no showing at all in its opposition. The Court does not find Plaintiff’s action meritless; it survived summary judgment and proceeded through a three-week jury trial. Defendant has not shown it can recover costs for prevailing on Plaintiff’s FEHA claim.

b. For purposes of cost-shifting, Plaintiff’s FEHA claim is equivalent to his claim under the Military & Veterans Code.

Alternatively, Defendant argues it can recover costs only for Plaintiff’s claim brought under Military & Veterans Code section 394 et seq., which Defendant argues is not subject to the same restrictions as Plaintiff’s FEHA claims.

Where a plaintiff brings claims on overlapping legal theories, one cognizable under the FEHA and one not, section 12965(b) applies to preclude a prevailing defendant’s recovery of fees and costs unless the plaintiff’s theories of relief are clearly separable. (See Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 832 (Jersey), citing Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 600.) Here, they are not. Plaintiff brought two closely interrlated claims based on related, often concurrent, allegations of harassment and discrimination at his workplace. Section 12965(b) applies to both claims.

Jankey v. Lee (2012) 55 Cal.4th 1038 (Jankey) does not require otherwise, despite its observation of the “general rule” that “where a non-fee-shifting claim overlaps with a fee-shifting claim, it does not limit fee awards under the fee-shifting claim.” (Jankey, at p. 1056.) The Jankey Court, relying mostly on preemption principles, found that a federal law limiting fee-shifting did not preempt a state law that mandated two-way fee-shifting. (Jankey also acknowledged that its rule should not apply “where to award fees on the fee-shifting claim would impair legislative policies implicated by the respective claims.” (Ibid.))

Moreover, for its “general rule”, Jankey cites only Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 (Reynolds). In Reynolds, the Supreme Court found a party could recover on a contractual fee-shifting clause even where other claims were brought, and those claims were not subject to fee-shifting. But the Court also found the prevailing party could recover those fees “only as they relate to the contract action.” (Id., at p. 129.) The ruling inverts and reinforces the reasoning in Jersey, supra; just as fees can only be recovered on a contract claim to the extent it stands alone, costs can only be recovered on non-FEHA claims to the extent they stand alone. Defendant has not shown it can distinguish Plaintiff’s claims in this manner.

CONCLUSION 

The Court grants Plaintiff’s motion to strike Defendant’s memorandum of costs. No costs are awarded.

Plaintiff to give notice.