Judge: David A. Hoffer, Case: 30-2020-01141664, Date: 2023-06-12 Tentative Ruling
The motion of plaintiff Juan Viera to strike the memo of costs filed by defendants Republic Waste Services of Southern California LLC, and Randy Mills is GRANTED.
Plaintiff Juan Viera moves to strike the memo of costs filed by defendants Republic Waste Services of Southern California LLC, and Randy Mills or, alternatively tax several cost items claimed by them.
Plaintiff contends that, even though defendants prevailed against him on summary judgment, they are not entitled to recover any costs, citing Labor Code § 218.5. Plaintiff contends that, under this code section, if the prevailing party in a court action is not an employee, attorney’s fees and costs may only be awarded if the Court finds that the employee brought the action in bad faith, i.e., it finds that the action is unreasonable, frivolous, meritless, or vexatious. Plaintiff contends that the action was not brought in bad faith and that the challenged costs are not proper because they were not necessary to the litigation or are unreasonable.
Defendants oppose the motion. They contend that Labor Code § 218.5 is not applicable to this action and cite to subdivision (c)(6) of Government Code § 12965. Defendants contend that they should be awarded their costs because the action was objectively frivolous, unreasonable, or groundless, as demonstrated by the Court’s granting of their summary judgment motion.
Defendants are correct to the extent that they have cited to the proper code section. Labor Code section 218.5 is simply not applicable to this case, as it expressly relates to “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” The first five causes of action in the complaint were FEHA claims and the other three were for retaliation in violation of the California Family Rights Act, hostile work environment, and wrongful termination in violation of public policy.
As defendants point out, subdivision (c)(6) of Government Code 12965 controls the recovery of costs (and attorneys’ fees) in FEHA cases. This statute provides:
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.
In this case, defendants prevailed in the action because the Court granted their motion for summary judgment in full. In doing so, it ruled that defendants showed that plaintiff could not stablish a prima facie case of disability discrimination and that the evidence submitted by plaintiff in his opposition was insufficient to raise triable issues of material fact. Specifically, it stated that the Court “finds the evidence [submitted by plaintiff in opposition to the motion] is insufficient to support a reasoned inference that Plaintiff was terminated because of his disability, because he took medical leave, or because he needed reasonable accommodations.”
However, simply because the Court found that the plaintiff’s evidence was insufficient to raise triable issues of material fact sufficient to deny the motion for summary judgment does not mean that the action “was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (See Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 80). As discussed in the ruling on the summary judgment motion, plaintiff put forward several items of evidence which, the plaintiff argued, showed the causal connections between the protected activity and the adverse employment action. The fact that the court viewed the import of this evidence differently did not make plaintiffs’ case “frivolous, unreasonable, or groundless.” As a result, even though they are prevailing parties in the action, defendants are not entitled to recover their costs in this case.
Finally, it is worth noting that defendants’ back-up justification for the costs award – that some of the costs are attributable to non-FEHA causes of action – is also unavailing as defendants have failed to show that any of the costs sought were attributable only to the non-FEHA causes of action. (See Roman v. BRE Properties Inc. (2015) 237 Cal.App.4th 1040, 1062 (“Unless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant.”).
Moving party is ordered to give notice of this ruling.