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
PROOF OF SERVICE: OK
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.
Background
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.
Timeliness
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.
Discussion
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.
Conclusion
Plaintiff’s motion is
granted. Defendant’s memorandum of costs is taxed in its entirety. Plaintiff is
to give notice.