Judge: Daniel S. Murphy, Case: 20STCV14662, Date: 2023-01-25 Tentative Ruling

Case Number: 20STCV14662    Hearing Date: January 25, 2023    Dept: 32

BACKGROUND

            On April 15, 2022, Plaintiff Melissa Mandell-Brown (“Plaintiff”) initiated this wrongful termination action against Defendants Novo Nordisk Inc. and Zamaneh Zamanian (collectively, “Defendants”), alleging breach of contract, violations of FEHA and CFRA, unfair business practices, fraud, and Labor Code violations.

            On February 8, 2022, Defendants filed their amended answer, with leave of Court.  

            On October 14, 2022, the Court granted Defendants’ unopposed motion for summary judgment in its entirety. On November 3, 2022, the Court entered judgment in Defendants’ favor.

            On November 8, 2022, Defendants filed their initial Memorandum of Costs. In response, Plaintiff filed her motion to tax costs on November 29, 2022.

            On December 20, 2022, Defendants filed their amended Memorandum of Costs.

            On December 28, 2022, Plaintiff filed her amended motion to tax costs.  

LEGAL STANDARD

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP § 1032(b).)

The statutory scheme for cost recovery establishes three categories of trial preparation expenses: (1) one category allowable as a matter of right to the prevailing party (CCP §

1033.5(a)), (2) one category disallowable unless expressly authorized elsewhere by law (CCP § 1033.5(b)), and (3) one category allowable or disallowable in the court’s discretion (CCP § 1033.5(c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and (2) reasonable in amount. (CCP § 1033.5(c)(2), (3).)

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) “ ‘If so, the burden is on the objecting party to show the costs are unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Ibid.)

DISCUSSION

A.             Entitlement to Costs

Plaintiff first argues that Defendants are not entitled to recover costs under Government Code § 12965(c)(6) because there has been no finding that her action was unreasonable, frivolous, meritless, or vexation. (Motion at pg. 10.)

Pursuant to Government Code § 12965(c)(6), it states: “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.”            “By making a cost award discretionary rather than mandatory, Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate

for a cost award to the prevailing party.” (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 99-100.)

            In opposition, Defendants argue recovery of costs is warranted because Plaintiff “had no objective basis for believing her claims had merit.” (Opposition at pg. 3.) In support of this argument, Defendants first assert that Plaintiff’s discrimination and retaliation claims were baseless because Plaintiff lacked direct evidence to show that her employment was unlawfully terminated. (Opposition at pp. 3-4.) Next, Defendants argue that Plaintiff’s remaining FEHA claims were meritless and frivolous when brought because the evidence presented in their motion for summary judgment established that reasonable accommodations were provided and Plaintiff was not subjected to harassment. (Opposition at pg. 5.) Thus, Defendant reasons that costs should be awarded because the lack of evidentiary support evidences that Plaintiffs’ claims were baseless.

            Furthermore, Defendant asserts that Plaintiff continued to litigate her FEHA claims without having discovered any evidentiary support. (Opposition at pg. 6.) Lastly, Defendant asserts that Plaintiff’s non-FEHA claims were frivolous because they lacked merit. (Id.)  Even if costs are not allowed under Government Code § 12965(c)(6), Defendants assert that it should be entitled to recover costs associated with Plaintiff non-FEHA causes of action. (Roman v. BRE Properties, Inc. (2015) 237 Cal. App. 4th 1040, 1059, 1062 [“Plainly, then, if the Romans' pleading of non-FEHA causes of action had led BRE to incur additional allowable costs (for example, the cost of taking a deposition not otherwise required to contest the FEHA claim), BRE would be entitled to recover at least those costs under section 1032, subdivision (b), without first satisfying the Christiansburg standard.”].)

            In reply, Plaintiff contends that Defendants have failed to submit any evidence to show that her claims were “unreasonable, frivolous, meritless, or vexatious,” and it is entirely based on argument. (Reply at pg. 3.) The Court agrees. Even though Defendants have succeeded on their motion for summary judgment, their success does not automatically award them with ability to recover costs. After all, “lack of merit is not the proper standard for awarding [costs] against a losing plaintiff under Government Code section 12965, subdivision (b).” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831.) “Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.” (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421-422.) Instead, a showing of a total devoid of merit must be established before finding that an action is deemed frivolous. (See Karwasky v. Zachay (1983) 146 Cal.App.3d 679, 681.) No such showing has been made. Furthermore, while Plaintiff’s non-FEHA causes of action do not involve statutes that expressly except an award of costs from the mandatory provision of Code of Civil Procedure § 1032(b), a review of Defendants’ opposition fails to establish that they had to incur additional costs that were not otherwise required to contest the FEHA claims. Thus, Defendant’s reliance on Roman is inapplicable.

            Accordingly, because Defendants are not entitled to recover costs, the Court strikes Defendants’ Memorandum of Costs in its entirety. Because Defendants’ Memorandum of Costs has been stricken in its entirety, the remainder of Plaintiff’s arguments raised in her motion to tax costs are moot.

CONCLUSION

            Based on the foregoing, Plaintiffs’ motion to tax costs is GRANTED. Defendants’ Memorandum of Costs and Amended Memorandum of Costs are deemed stricken.