Judge Kerry Bensinger, Case Number: 19STCV23201, Date: 2024-04-17 Tentative Ruling

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On July 2, 2019, Plaintiff Tyler Evans (“Evans” or “Plaintiff”) filed this action against Defendant AIDS Healthcare Foundation (“AHF” or “Defendant”). On October 9, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserted causes of action for:

4. Sexual Orientation Discrimination in Violation of Government Code § 12940, et seq.;

8. Failure to Provide Employment Records in Violation of Labor Code §§ 226 & 1198.5.

Evans worked as AHF’s Director of Infectious Disease and Medical Director from December 16, 2016 to September 27, 2018. He alleged that he was wrongfully terminated after complaining to AHF senior management about conduct he believed was unlawful and threatened patient safety. In retaliation, AHF falsely accused Evans of communicating with other AHF employees in a sexual nature. Evans also alleged the false accusations were motivated by Evans’s heterosexuality.

On July 6, 2023, AHF moved for summary adjudication on the ground that Evans’s termination was based upon good faith, non-retaliatory and non-discriminatory reasons. The motion was set for September 21, 2023.

Prior to the hearing on its Motion for Summary Adjudication, AHF discovered a document which it believed Evans had falsified: an email that Evans asserted as a pre-termination whistleblower complaint from him to the Los Angeles County of Department of Public Health. On September 13, 2023, AHF met and conferred with Evans about the document and propounded written discovery concerning the altered e-mail document. AHF also demanded to inspect the email in its native file format.

On September 19, 2023, AHF filed an ex parte application to continue the hearing for the Motion for Summary Adjudication. The court granted the ex parte application.

Evans did not produce the email in its native file format or agree to the inspection of his email account or computer. Instead, on September 26, 2023, Evans dismissed this action without prejudice.

Thereafter, AHF re-served Evans with the same limited discovery (Document Requests, Inspection Requests, Requests for Admission, and Form Interrogatories) that AHF had served prior to Evans’s dismissal. AHF also noticed Evans’s deposition.

On December 22, 2023, Evans objected to the deposition notice. Meet and confer efforts followed without any agreement from Evans that he would sit for deposition.

On January 4, 2024, AHF filed this Motion to Compel Plaintiff’s Deposition and for Sanctions. On the same day, AHF filed an ex parte application to continue the hearing on Plaintiff’s motion to strike and/or tax Defendant’s Memorandum of Costs. Over Evans’s objection, the court granted the ex parte application.

On March 1, 2024, AHF filed Motion to Compel Further Responses to Requests for Production of Documents, Set Six, and a Motion to Compel Further Responses to Requests for Admission, Set Three.

On March 4, 2024, AHF filed a Motion to Compel Further Responses to Form Interrogatories, Set Four, and a Motion to Compel Further Responses to Inspection Demand, Set Two.

On March 7, 2024, the parties participated in an IDC regarding the foregoing discovery motions. The issues were not resolved. The court set a briefing scheduling regarding the following threshold issues:[1]

1. Does the Christiansburg standard apply to FEHA claims with respect to awarding costs?

2. Does the Christiansburg standard apply to Labor Code section 1102.5 claims with respect to awarding costs?

3. Does the Christiansburg standard apply to a case with both FEHA and whistleblower claims, such that discovery can be sought on only one or the other types of claims?[2]

Central to the discovery disputes is whether AHF may recover attorney fees as the prevailing party when Evans brought FEHA and non-FEHA claims, and if so, what standard applies. Accordingly, the court requested that the parties brief several issues. The court addresses each in turn.

Issue 1: Does the Christiansburg standard apply to FEHA claims with respect to awarding costs?

Here, the parties agree that the holding in Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412 (Christiansburg) applies to FEHA claims with respect to awarding costs.

In Christiansburg, the United States Supreme Court held that a trial court may award attorney fees to prevailing plaintiffs in an Equal Employment Opportunity Commission (“EEOC”) action simply when the plaintiff in such an action prevails, but that the discretion does not extend to awarding a prevailing defendant its attorney fees unless the trial court finds that the plaintiff’s EEOC “claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” (Christiansburg, 434 U.S. at p. 422.) In 2010, the California Supreme Court held that the Christiansburg standard applied to an award of costs in a FEHA action. (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 99-100.) In sum, the unequivocal answer to Issue 1 is “Yes.”

Issue 2: Does the Christiansburg standard apply to Labor Code section 1102.5 claims with respect to awarding costs?

Here, the parties agree that the Christiansburg standard does not apply to Evans’s Labor Code section 1102.5 “whistleblower” claim. Labor Code section 1102.5, subdivision (b) provides, “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”¿ (Lab. Code, § 1102.5, subd. (b).)¿ The court is authorized to award reasonable attorney's fees to a plaintiff who brings a successful action for a violation of these provisions. (Lab. Code, § 1102.5, subd. (i).)¿

As the parties correctly point out, Labor Code section 1102.5 is silent on the applicable standard for awarding costs to the prevailing party. Absent any clear statutory language or case law directing otherwise, Code of Civil Procedure section 1032,[3] the general costs statute, applies to the Labor Code section 1102.5 claim.

Issue 3: Does the Christiansburg standard apply to a case with both FEHA and whistleblower claims, such that discovery can be sought on only one or the other types of claims?

After reviewing the parties’ briefing, the central question is whether Evans’s FEHA claim was frivolous. Evans’s alleged in his FAC: “Defendant AHF levied false accusations against Plaintiff asserting that he had communicated with employees of Defendant AHF in a sexual nature. In fact, Defendant AHF unlawfully imposed a sexual connotation to Plaintiff’s communications, none of which were sexual in nature. The imposition of this sexual connotation to Plaintiff’s communication and subsequent discipline was based upon Defendant AHF’s discriminatory animus towards Plaintiff’s heterosexuality.” (FAC, ¶ 14.)

In Evans’s Motion to Strike and/or Tax Costs, he challenges AHF’s Memorandum of costs on the grounds that the FEHA claim was potentially meritorious. In making this argument, Evans does not rely on the allegedly altered e-mail to support its argument that the FEHA had merit. Given Evans’s lack of reliance on the e-mail, AHF is hard pressed to demonstrate its relevance. Clearly, if Evans relied upon the email to counter AHF’s argument, the analysis would be different. And if Evens does seek support from the email to argue there was merit to his FEHA claim, the court will grant AHF’s discovery request. However, as the memorandum of costs currently stands, the email lacks relevance. The only purpose for AHF to conduct discovery regarding the email is to thwart Evans ability to use the email in support of its argument that the FEHA was not frivolous. But AHF has already accomplished this goal. Evans has already conceded the point and is not and will not rely upon the email. Discovery does not further AHF’s cause.

Based on the foregoing, the court will hear from the parties on the relevance of discovery regarding the allegedly altered e-mail as to the merits of Plaintiff’s FEHA claim.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff analyzes a fourth issue: If the FEHA claim is not frivolous, but the Labor Code § 1102.5 claim is frivolous, can Defendant be awarded its costs? AHF maintains this issue was not raised by the court at the IDC. This issue is not relevant to the key issue presented by these discovery motions which is whether the FEHA claim is frivolous.

[2] Evans frames the issue slightly differently. In his view, the court asked: If the FEHA claim and Labor Code § 1102.5 claim are inextricably intertwined, can discovery be had on the Labor Code § 1102.5 claim in the case? Regardless of how they are framed, the court comes to the same conclusion.

[3] 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. (Code Civ. Proc., § 1032, subd. (b).)