Judge: Jon R. Takasugi, Case: 21STCV38436, Date: 2025-02-06 Tentative Ruling

Case Number: 21STCV38436    Hearing Date: February 6, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to strike Defendant’s claim for costs is GRANTED IN PART, DENIED IN PART. Defendant may recover its costs related to non-FEHA causes of action, but is not entitled to recover costs incurred to litigate the FEHA claims. 

Defendant is to refile an updated memorandum of costs to reflect this ruling, which Plaintiff may challenge in supplemental briefing.

On 10/19/2021, Plaintiffs Fiona John, Shelly Perks, Lisa Marquez, and Harold Hayes (collectively, Plaintiffs) filed suit against Methodist Hospital of Southern California (MHSC or Defendant), alleging:  (1) age discrimination; (2) retaliation in violation of Labor Code section 1102.5; (3) retaliation in violation of FEHA; (4) retaliation in violation of Health and Safety Code section 1278.5; (5) retaliation in violation of Labor Code section 4310; (6) failure to prevent discrimination and retaliation; (7) interference and retaliation in violation of the California Family Rights Act (CFRA); and (8) wrongful termination.

            On 1/10/2025, Plaintiffs moved to strike and/or tax Defendant’s costs.

Discussion

            Plaintiffs argue that Defendants are not entitled to costs because, in FEHA cases, a prevailing defendant is not entitled to CCP section 1033.5 costs unless the defendant has shown that the plaintiff pursued claims that were frivolous, meritless, or groundless. (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 101, 115.)

            After review, the Court finds insufficient to evidence to find that Plaintiffs’ claims were frivolous.

            In support of its request for costs, Defendants note that Plaintiffs John and Hayes did not prevail on any of their claims. Only Plaintiffs Perks and Marquez obtained a judgment in their favor. Defendants cite cases like Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 922-925, Guthrey v. State of California, (1998) 63 Cal.App.4th 1108, 1111, and Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73 in support.

            However, “lack of merit is not the proper standard for awarding attorney fees [and now costs] against a losing plaintiff under Government code section 12965, subdivision (b). . .. Attorneys' fees [and now costs] should be awarded to a prevailing defendant only where the action brought is found to be unreasonable, frivolous, meritless or vexatious, and the term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost the case.” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831.)

            Here, Plaintiffs presented evidence to argue that they were all over the age of 40, and that each had suffered a failure to promote, a failure to be offered developmental opportunities (i.e., lead positions), and/or faced outsized discipline compared to their younger counterparts. (See e.g. Goar Testimony, April 29, 2024 at 9:14-26 [Marquez Discipline]; Goar Testimony, April 29, 2024 at 97:5-13, 98:6-16 [systemic disparate impact on older employees].) Plaintiffs submitted specific evidence related to the failure to provide PPE, and Defendant’s employment practices. While this evidence was ultimately unpersuasive, this falls short of being frivolous or meritless.

            For example, in Guthrey, supra, the trial court's award of attorney's fees to defendant was upheld upon finding "there is absolutely no evidence in the record ... which supports a finding that the plaintiff has even established a prima facie case for any of his claims." Here, Defendant did not demur to Plaintiffs’ claims and never sought summary judgment or adjudication. As such, it is difficult to see why Defendant would have proceeded to a jury trial on claims without any challenges at the pleading stage or pre-trial, if it believed those claims were so lacking in merit as to not even support a prima facie claim.

            The fact that various Plaintiffs did not prevail on their claims here does not mean that the claims were frivolous. As set forth above, Plaintiffs were able to present evidence related to those claims, which at the very least indicates that they were not baseless. The fact that Plaintiffs’ counsel dismissed certain claims before they were submitted to the jury is also not, in and of itself, evidence of frivolity. To conclude otherwise would discourage counsel from acting in the interest of judicial economy for fear that it would expose them to claims of frivolity.

            This leaves the question of whether or not Plaintiffs’ second, fourth, fifth, and eighth causes of action are inextricably intertwined with Plaintiffs’ FEHA claims. The Court finds that they are not. Plaintiff could, and did, bring those claims independent of the FEHA claims. These causes of action are related to alleged complaints about health and safety issues, and more specifically COVID and PPE and staffing. By contrast, the FEHA claims are based on theories of age and/or medical leave discrimination and retaliation. The whistleblower claims assert retaliation for complaints unrelated to age or medical leave discrimination or retaliation. If "a plaintiff ... present[s] in one lawsuit distinctly different claims for relief that are based on different facts and legal theories," "counsel's work on one claim will be unrelated to his work on another claim"; "these unrelated claims [must] be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." (Hensley v. Eckerhart (1983) 461 U.S. 424, 434-435.) As such, the Court finds those costs actually and reasonably incurred.

            Based on the foregoing, Plaintiff’s motion to strike Defendant’s claim for costs is granted in part, denied in part. Defendant may recover its costs related to non-FEHA causes of action, but is not entitled to recover costs incurred to litigate the FEHA claims.  Defendant is to refile an updated memorandum of costs to reflect this ruling, which Plaintiff may challenge by a supplemental briefing. Briefing schedule is to be according to Code.  

It is so ordered.

Dated:  February    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.