Judge: Gail Killefer, Case: 21STCV15251, Date: 2023-03-15 Tentative Ruling

Case Number: 21STCV15251    Hearing Date: March 15, 2023    Dept: 37

HEARING DATE:                 March 15, 2023   

CASE NUMBER:                  21STCV15251

CASE NAME:                        Lisa Thompson v. Ogletree, Deakins, Nash, Smoak, & Stewart, P.C

MOVING PARTY:                Plaintiff, Lisa Thompson 

OPPOSING PARTY:             Defendant, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C

TRIAL DATE:                        None



MOTION:                               Plaintiff’s Motion to Tax Costs   

OPPOSITION:                       March 2, 2023

REPLY:                                  March 8, 2023


TENTATIVE:                         Plaintiff’s motion is granted. Defendant’s memorandum of costs is taxed in its entirety. Plaintiff is to give notice.



This action arises out of the former employment of Lisa Thompson (“Plaintiff”) with Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. (“Defendant”). Plaintiff alleges that she was employed with Defendant from approximately 2007 through her allegedly wrongful termination on or about March 11, 2020. Plaintiff alleges that on October 3, 2018, Plaintiff underwent surgery on her right knee and took a leave of absence through the end of January 2019. On July 1, 2019, Plaintiff alleges she requested a medical leave of absence due to work-related stress and subsequently underwent surgery on her left knee on or about September 1, 2019. Plaintiff alleges she was released to return to work on March 6, 2020. On March 10, 2020, Plaintiff returned to work and alleges she had a meeting with the office administrator and managing shareholder. Plaintiff alleges she was terminated effective March 11, 2020 on pretextual grounds.


Plaintiff’s operative Complaint alleges six causes of action: (1) disability discrimination in violation of the Fair Housing Employment Act (“FEHA”); (2) failure to accommodate disability in violation of the FEHA; (3) failure to engage in the interactive process in violation of the FEHA; (4) retaliation in violation of the FEHA (Government Code § 12940(h)); (5) failure to prevent discrimination, harassment and retaliation in violation of the FEHA; and (6) wrongful termination in violation of public policy.


On October 28, 2022, Defendant’s motion for summary judgment (“MSJ”) was granted. On November 8, 2022, the court issued an Order Granting Defendant’s Motion for Summary Judgment (the “MSJ Order”). The Order indicated that judgment was entered on Defendant’s MSJ on this date and that Defendant was to give notice.


On November 8, 2022, Defendant filed Notice of Entry of Judgment.  On December 22, 2022, Plaintiff filed a Notice of Appeal of the court’s ruling on the MSJ. On February 9, 2023, Plaintiff’s Appeal was put on default.


On November 16, 2022, Defendant filed their Memorandum of Costs. On December 1, 2022, Plaintiff filed her Motion to Strike and Tax Costs.


Plaintiff now moves to tax Defendants’ Memorandum of Costs. Defendants oppose the motion.




I.                   Timeliness of Cost Memorandum


Pursuant to California Rules of Court, rule 3.1700(a)(1): “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”


The court finds that the Memorandum of Costs was timely. California Rules of Court, rule 3.1700 requires that the Memorandum of Costs be filed within 14 days after service of the Notice of Entry of Judgment. Notice of Entry of Judgment was filed on November 8, 2022, and the Memorandum of Costs was filed on November 16, 2022. Thus, the Memorandum of Costs filed is timely.


II.                Timeliness of Motion


Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service.  (Cal. Rules of Court, rule 3.1700(b)(1); CCP § 1013(a).) 


Plaintiff’s Motion to Tax Costs was filed on December 1, 2022. Thus, Plaintiff’s motion is timely.




I.                   Legal Standard 


CCP § 1032 allows for the recovery of costs by a prevailing party as a matter of right. “‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (CCP § 1032(a)(4).)  CCP § 1033.5(a)(10)(B)-(C) provides that attorney’s fees are recoverable as costs when authorized by “statute” or “law.”


California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees.  (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.)  Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery.  (See CCP § 1021.)  Government Code § 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under the FEHA.  (Gov. Code, § 12965(b).)  “The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act….”  (Cummings v. Benco Building Servs. (1992) 11 Cal.App.4th 1383, 1386 (Cummings).)  “A trial court's award of attorney fees and costs under this section is subject to an abuse of discretion standard.”  (Id. at p. 1387.)   


California courts have recognized that the purpose of the fee provision was “to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance.”  (Cummings, 11 Cal.App.4th at p. 1387, citing Christianburg Garment Co. v. Equal Employment Opportunity Comm’n (1978) 434 U.S. 412, 418 (Christianburg).)  Because these equitable considerations do not apply for a prevailing defendant, Courts have found that attorney’s fees for a prevailing defendant “should be permitted ‘not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’ ”  (Cummings, 11 Cal.4th at p. 1387, quoting Christianburg, 434 U.S. at p. 421.)  “[T]he term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him.  In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.”  (Cummings, 11 Cal.4th at p. 1387.)  “In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”  (Id. at p. 1388.) 



II.                Analysis


Government Code § 12965(b) provides in pertinent part:


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.


Plaintiff asserts that Defendant’s Memorandum of Costs should be stricken in its entirety since Defendant is not entitled to costs because this action was not frivolous, without foundation or unreasonable. (Motion, 3-6.) Additionally, Plaintiff cites Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams) and Christianburg for this contention.


In Williams, the California Supreme Court concluded that: “ 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.” (Id. at 99.) Additionally, the Williams court held that “ in awarding attorney fees and costs, the trial court's discretion is bounded by the rule of Christiansburg; 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.” (Id. at 99-100.)


In opposition, Defendant first contends it is entitled to costs as a matter of right as the prevailing party on the Non-FEHA claim. (Opp., 3.) Further, Defendant then contends it is entitled to costs on FEHA claims as well since:


“there was no change at all in the facts or the law from the date of the events Plaintiff cited to support her claims to the date of entry of judgment.


Plaintiff knew for years prior to her termination that she was failing at performing her job. She knew the other records specialist was easily keeping up with the pace of the work; she could see the very real discrepancies between the two records rooms. There was no way she did not know that having legal documents stacked in piles without filing (as opposed to actually filed in the stacks) would have repercussions. And when she had the opportunity to address her shortcomings, she explicitly told her employer that she could not perform the job without help.” (Opp., 4-5.)


Defendant further contends that since Plaintiff “acknowledged her past poor performance and the fact that she was previously allowed multiple leaves of absence” and admitted that she was unable to keep up with the workload, Plaintiff should have been aware that her “disability-based claims were frivolous, unreasonable, and groundless when she brought them, and her deposition only cemented that fact.” (Id.)


In reply, Plaintiff asserts:


“[a]s argued in her opposition to summary judgment, Ms. Thompson began working for the defendant in 2007 and received positive performance evaluations year after year throughout her employment until she needed an extended leave of absence to undergo knee replacement surgery in October 2018 and then requested a second medical leave of absence in June 2019. When Ms. Thompson tried to return to work in March 2020 and requested certain accommodations, defendant fired her for purported work issues about which no one ever informed her.


Defendant repeatedly argues that Ms. Thompson’s case is frivolous because she knew that she could not perform her job and nonetheless pursued this lawsuit. This is a blatant misrepresentation of the facts and of Ms. Thompson’s testimony. Ms. Thompson has clearly maintained throughout her lawsuit that she was able to perform her job and had been doing so for many years. In fact, Ms. Thompson was asked the following at her deposition: ‘My question is did you feel that because you didn’t get the help you asked for you couldn’t do your work.’ Plaintiff responded clearly: ‘No. No. That wasn’t the case. I just needed – I could still do my work.’” (Reply, 2, citing Exhibit 1 in support of Plaintiff’s Opposition to Summary Judgment filed on 9/30/22, Deposition of Lisa Thompson at 173:7-10.)


“Plaintiff submitted numerous documents including her performance evaluations in opposition to defendant’s summary judgment evidencing the fact that she had been lauded for many years and was then treated vastly differently after she requested medical leaves of absence starting in October 2018. Ms. Thompson also submitted significant evidence showing that she was not in the same position as the other records specialist in the Los Angeles office to whom defendant presumably compares her.” (Reply, 3-4.)


Government Code § 12965 is clear that neither fees nor costs may be awarded unless a Plaintiff’s claims are “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”


As Plaintiff correctly points out, while this court granted summary judgment in favor of Defendant, it only did so after deliberation and consideration of the evidence proffered by the parties and extensive briefing regarding their claims. (See generally MSJ Order.) Thus, while Plaintiff did admit that she needed more help with the workload, Defendants have failed to show that such an admission of the need for more help necessarily equates to an understanding of the frivolity of Plaintiff’s claims and the continued litigation of such claims thereafter.

Pursuant to Williams, Christianburg, and the high bar set by Gov. Code § 12965(b), Defendant may recover neither fees nor costs absent a determination that Plaintiff’s case was frivolous, unreasonable, or groundless when brought, or that Plaintiff continued to litigate her case after it clearly became so. Defendant has failed to make such a showing. Thus, Plaintiff’s motion is granted.




Plaintiff’s motion is granted. Defendant’s memorandum of costs is taxed in its entirety. Plaintiff is to give notice.