Judge: Latrice A. G. Byrdsong, Case: 22STCV28837, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV28837    Hearing Date: November 16, 2023    Dept: 25

Hearing Date:                         Thursday, November 16, 2023

Case Name:                             ANTONIO FERNANDEZ v. DR. T.G. CHOW, et al.

Case No.:                                22STCV28837

Motion:                                   MOTION TO STRIKE MEMORANDUM OF COSTS

Moving Party:                         Plaintiff Antonio Fernandez  

Responding Party:                   Defendant Dr. T.G. Chow

Notice:                                    OK

 

Tentative Ruling:                    Plaintiff Fernandez’s Motion to Strike Memorandum of Costs is DENIED. 

 

BACKGROUND

            On September 6, 2022, Plaintiff filed this action against Defendants Dr. T.G. Chow and Hyung Shin Paek alleging causes of action for (1) violation of the Unruh Act and (2) violation of the California Disabled Persons Act.  Defendant Chow owns the property located at 925 Cypress Ave., Los Angeles, CA.  Defendant Paek owns S&J Liquor Store at that address. 

 

            Plaintiff is a person with physical disabilities and a protected class of persons under the Americans with Disabilities Act.  Plaintiff is paralyzed from the waist down and uses a wheelchair for mobility. 

 

            On July 19, 2023, Plaintiff voluntarily dismissed this action against Defendant Paek. On August 4, 2022, Plaintiff voluntarily dismissed this action against Defendant Chow. 

 

            On August 22, 2023, Defendant Chow filed a memorandum of costs. 

 

            On September 6, 2023, Plaintiff filed the instant motion to strike the memo of costs.  On November 2, 2023, Defendant Chow filed an opposition to the motion to strike.  On November 13, 2023, Plaintiff filed a reply to the opposition.   

 

MOVING PARTY POSITION

            Plaintiff argues Defendant Chow is not entitled to recover costs in this action, unless the Court finds that the action was frivolous, unreasonable or without foundation.  Plaintiff argues that absent such a finding, Defendant Chow is not entitled to recovery of costs on Plaintiff’s civil rights action under Unruh.

 

OPPOSITION

             Defendant Chow argues he is the prevailing party in this action pursuant to CCP §1032(b).  Defendant argues he is therefore entitled to recover costs set forth in the memo of costs in the amount of $2,056.48.  Defendant argues Plaintiff continued to litigate this case for months all the while knowing that the case was frivolous, unreasonable and groundless. 

 

REPLY

            Plaintiff argues this action was not frivolous.  Plaintiff argues costs are not recoverable in an Unruh action on the ADA unless the case was frivolous, unreasonable or without foundation. Plaintiff argues such a finding is only made in exceptional circumstances. 

           

ANALYSIS

I. Applicable Law

 

            Except as otherwise provided, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (§ 1032, subd. (b).) To obtain costs, the prevailing party must file and serve a memorandum of costs, which “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.” (Cal. Rules of Court, rule 3.1700(a).)

 

            Copies of bills, invoices, statements, or other documentation need not be attached to the memorandum (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267), but the memorandum must provide enough detail to determine the cost sought is statutorily awardable (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)  If the items on the face of the cost memorandum appear to be proper charges, the verified cost memorandum is prima facie evidence of their propriety, and it is the challenging party who bears the burden to show the costs were not reasonable or necessary.  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  The only identifiable requirement for a memo of costs is that it set forth the costs claimed and be verified.  See CRC 3.1700(a)(1). 

 

            The mere filing of a motion to tax costs may be a proper objection to an item if the necessity of that item appears doubtful, does not appear to be proper on its face (Nelson, supra, 72 Cal.App.4th at p. 131), or presents a legal question (Fennessy v. Deleuw-Cather Corporation (1990) 218 Cal.App.3d 1192, 1195–1996 (motion to tax questioning entitlement to deposition costs incurred by all six defendants represented by the same counsel was sufficient to place the cost at issue without additional declarations or affidavits).)  If section 1033.5 expressly allows the particular item and it appears proper on its face, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. (Nelson, at p. 131.)

 

            If costs are properly placed at issue, the burden of proof shifts to the party seeking costs to justify them by providing evidence and supporting documentation that the costs were reasonable and necessarily incurred. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774; see Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1267.)

 

II.  Plaintiff fails to establish Defendant is not entitled to recovery of costs as prevailing party under CCP §1032(b)

 

            Plaintiff argues Defendant cannot recover costs in this action, unless the Court finds that the action was frivolous, unreasonable or without foundation.  Plaintiff’s brief relies entirely on case law addressing whether a prevailing defendant may recover attorney’s fees in civil rights actions. 

 

            Defendant Chow’s memorandum of costs filed on August 22, 2023 does not include attorney’s fees, nor has Defendant Chow filed a motion for attorney’s fees.  Defendant’s memo of costs includes filing and motion fees, deposition costs, service of process costs and fees for electronic filing or service.  (Defendant’s Memo of Costs filed on August 22, 2023.)

 

            For example, in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, the Supreme Court held that attorney’s fees should be awarded to a prevailing defendant in an action for racial discrimination under Title VII of the Civil Rights Act of 1964 only if the court finds that the plaintiff’s action was frivolous, unreasonable or without foundation (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 417, 420-423.) 

 

            Plaintiff also cites to Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047.  However, in Turner, the Court of Appeals addressed whether and to what extent a prevailing defendant in an action under the Unruh Act and the Disabled Persons Act (“DPA”) could recover attorney’s fees, given that the Unruh Act (Civil Code §52) and Civil Code §54.3 of the DPA only authorized fees to a prevailing plaintiff, while Civil Code §55 of the DPA authorized recovery of fees by the “prevailing party” in an action for injunctive relief under the DPA. 

 

            Likewise, the remaining federal district court cases cited by Plaintiff do not address whether a prevailing defendant in an action alleging violations of Unruh and the Disabled Persons Act can recover costs.  The cases only address the recoverability of attorney’s fees.  (Kohler v. Bed Bath & Beyond of California, LLC (9th Cir. 2015) 780 F.3d 1260, 1266 (“we reverse the district court's award to BB & B of attorneys' fees”); Vernon v. City of Los Angeles (9th Cir. 1994) 27 F.3d 1385, 1402 (“this Court denies a defendant's requests for attorneys' fees unless the action is frivolous, unreasonable, or without foundation”); Peters v. Winco Foods, Inc. (E.D. Cal. 2004) 320 F.Supp.2d 1035, 1037, aff'd (9th Cir. 2005) (“Defendant seeks an award of attorney's fees expended to defend this litigation, asserting that plaintiff's claims were frivolous and without any basis in law or fact.”))

 

            Plaintiff cites one case that addresses the propriety of a prevailing defendant’s recovery of costs specifically, as opposed to attorney’s fee, under FEHA.  In Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 109-110, the California Supreme Court found that, when determining whether a prevailing defendant is entitled to fees and costs under Government Code §12965(b) in a FEHA action, “the Legislature intended trial courts to use the asymmetrical standard of Christiansburg as to both fees and costs.”  (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 109.)  The Supreme Court engaged in a detailed analysis of FEHA and Government Code §12965(b) to conclude that the standards of Christiansburg applied to a defendant’s request for fees and costs as prevailing party under Government Code §12965(b).  (Id. at 109-115.)

 

            Williams did not address whether a prevailing defendant in an action for violations of Unruh and DPA seeking to recover litigation costs only, not attorney’s fees, must satisfy the standards of Christiansburg.   Plaintiff fails to cite any case holding that the standards of Christiansburg apply to a prevailing defendant’s request for litigation costs in an action alleging Unruh and DPA violations. 

 

            As it stands, Defendant Chow is the prevailing party as defined under CCP §1032(a)(4):  “‘Prevailing party’ includes…a defendant in whose favor a dismissal is entered…and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (CCP §1032(a)(4).  “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.”  (CCP §1032(b).) 

 

            As the party moving to strike Defendant’s memo of costs, Plaintiff has the burden of establishing that Defendant is not entitled to costs.  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  Plaintiff does not dispute that Defendant Chow is the prevailing party under CCP §1032(a)(4), nor does Plaintiff cite to any authority conditioning Defendant’s recovery costs in this action on a finding that the case was frivolous, meritless or without foundation. 

 

            Plaintiff’s Motion to Strike Defendant Chow’s memorandum of costs is DENIED   

Moving Party is ordered to give notice.