Judge: Mark H. Epstein, Case: 19SMCV00057, Date: 2022-12-22 Tentative Ruling
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Case Number: 19SMCV00057 Hearing Date: December 22, 2022 Dept: R
The hearings today are to resolve defendant’s motion for an
offset and a motion to tax costs. Both
are GRANTED IN PART AND DENIED IN PART
Government Code section 985 allows public entities to reduce a judgment by way of offset under certain circumstances. Essentially, the judgment is to be reduced to account for payments of benefits that were provided on plaintiff’s behalf for the same injury from various specified collateral sources. The goal is to prevent a windfall or double recovery.
Defendant contends that plaintiff received Worker’s Compensation benefits and that those payments are duplicative of the jury’s award. As the court understands it, worker’s compensation covers certain medical expenses as well as lost income due to a workplace injury. To the extent plaintiff received such benefits, defendants contend that those sums would offset any similar benefits awarded by the jury. As to the medical expenses, the court sees no offset. The court would need to see evidence that is relatively granular that plaintiff saw medical professionals for which the jury awarded damages and for which workers’ compensation was also paid. The court does not really understand how that could be. This is a discrimination case. That means that defendant was liable for medical damages—if at all—only to deal with any psychological harm caused by the termination. Defendant was not charged with any medical expenses relating to treatment for the underlying fibromyalgia medical condition. There is no offset there.
Defendant also contends that there is a double recovery for lost wages. That is more likely to be true. Plaintiff might well receive workers’ compensation benefits for a period that she was unable to work due to the fibromyalgia. And, at the same time, the jury did award her past and future lost wages for the time she was out of work (or on unpaid leave) that the jury considered discriminatory, past and future. It does not matter that the reasons are different; plaintiff can only recover lost wages once. The court will ask defense counsel to identify with particularity the portion of any workers’ compensation payments that reflect lost wages (past or future) that overlap with the lost wage claim plaintiff made via her expert. To the extent that there is an overlap, defendant is entitled to offset the jury’s award by the amount of workers’ compensation benefits given for the lost wages. Plaintiff contends that any such offset should be adjudicated in the WCAB action rather than here. To the extent that an award has already been made, the court disagrees. If there has been an award, this court can do the offset. However, if the record is muddled as to what workers’ compensation payment is for what injury, then the court would agree with plaintiff that the WCAB is the better entity to sort that out (being the entity that is making the workers’ compensation award). In addition, to the extent that the WCAB has not yet made an award, the court agrees that the WCAB is the better entity to take that into account rather than have this court attempt to estimate a future award or have this case remain open for later proceedings into the indefinite future.
Plaintiff argues that the record here is insufficient from an evidentiary point of view. Plaintiff contends that the state’s only source of evidence of a double recovery is Ms. Saeteun’s declaration, which plaintiff contends is insufficient. The court will inquire about this.
Plaintiff also argues that unemployment and disability benefits are not subject to a set off. Plaintiff is right to a point. Unemployment and disability benefits that compensate something other than damages relating to discrimination are not subject to offset. (Monroe v. Oakland School Dist. (1981) 114 Cal.App.3d 804.) And the disability benefits seem fall squarely within that bucket unless there is a portion that goes to lost wages. However, again, to the extent that there is an actual award for lost wages that overlaps the lost wages suffered due to discrimination, the court does believe that it would constitute a double recovery.
That is different, though, from the question whether there ought to be an offset because unemployment or disability benefits are available to plaintiff but have not yet been awarded or paid. The availability of such payments is not the same as having actually received the money in hand. If plaintiff seeks a double recovery as part of a future claim for unemployment or disability benefits then the state is free to argue in that forum that plaintiff has already been compensated.
The court is aware of the cases upon which plaintiff relies to suggest that unemployment and disability benefits are not subject to offset. The court is not terribly persuaded by cases that pre-date the statute or that involved alleged wrongs that predated the statute. The statute’s language suggests that the court can offset the judgment by certain collateral sources, and those sources include unemployment and disability. The court believes that doing so is appropriate in this case.
Plaintiff also notes that section 985(c) requires that there be notice of a collateral payment request before any settlement conference. But this is not a settlement conference.
At bottom, the court believes that an offset is appropriate for any lost wage recovery plaintiff has actually received. The court will inquire as to the actual admissible evidence of that amount. It might well be that the jury’s award will limit other potential recoveries plaintiff might otherwise receive in the future, but that is for a different hearing. Nor will the court assume that plaintiff might in the future receive additional benefits and offset those benefits from the jury’s award now. The offset is limited to the amounts plaintiff has been awarded or received for the identical recovery awarded by the jury.
Turning to costs, the court agrees that only reasonable and necessary costs are awardable under the statute. In other words, the statute provides the court with a significant amount of discretion as to the items of cost that can be recovered. Further, the court must look to the statute’s purpose. In the FEHA context, the goal is to make plaintiff truly whole. That is why fees are recoverable to a prevailing plaintiff even though fees are generally not recoverable. As the court works through the motion to tax, the court must bear in mind that the Legislature has articulated a goal of making the plaintiff whole in a way different from most torts. (Williams v. Chino Valley Indep. Fire Dist. (2015) 61 Cal.4th 97.) In most tort actions, a prevailing plaintiff is not truly made whole. The plaintiff is given an award that would compensate the plaintiff for the injury, but deducted from that award are the fees plaintiff must pay counsel as well as many costs that are just not recoverable. While the law recognizes it is less than complete relief for plaintiff, it also puts plaintiff at somewhat less risk should plaintiff not prevail by imposing a similar expense on a prevailing defendant. Not so in FEHA. The Legislature determined as a matter of public policy that a prevailing plaintiff in a FEHA case should be made truly whole—on what is (for the most part) a net basis. That is the legislative policy, and it is through that lens that the court resolves this motion.
Further, the court does not believe its job is to flyspeck or second guess plaintiff’s counsel. What is reasonable or necessary is a decision that must be made in real time. Blow-ups might be something a party believes will be needed, but as the trial unfolds it could be that they are not actually needed. However, counsel must decide with foresight, not hindsight. Effective counsel might well do things that turn out to be unnecessary by case’s end to maximize the chances of victory. In many cases, doing anything less would be a foolhardy risk. Accordingly, the fact that some work was done that turned out to be unnecessary viewed at trial’s end does not make the cost taxable. Rather, the court must look at the costs incurred to determine whether they were objectively unnecessary at the time incurred based on what was known then. And the court, as stated above, employs a light touch. Is a powerpoint needed for closing argument? (Very) old school lawyers might say no; more tech-savvy lawyers might say yes. Either position is reasonable, and the court will not second-guess counsel’s determination.When viewed in that light, much of the state’s motion must fail. The state contends that digitizing videos is not recoverable. The court disagrees. Being able to pinpoint the part of a video that ought to be played to the jury makes sense, and digitizing is the way to do that. Delivery of motion papers are also attacked, as are messenger services. While the court is not so sure that messengers are as useful in today’s age of electronic communications, the court will not second guess that decision. Many of the costs the state attacks fall into that sort of bucket.Defendant contends that Dr. Rinaldi was not really an expert entitled to an expert fee, but rather was an ordinary witness. However, during the trial the court inquired as to her status and plaintiff said she was testifying as an expert. Among other things, she was the medical witness who testified about fibromyalgia. While some of her testimony may have been more percipient and less expert, on the whole the court does not agree that she could have been paid only $35. Insisting on that would either have jeopardized whether she would be available at all or led to expensive motion practice to compel her attendance.
The court is aware that the cost of transcripts was high. However, plaintiff convincingly argued that the transcripts were necessary and the court recalls the use of actual testimony during the trial. The court will not second-guess plaintiff's counsel's decision to order the dailies.
Most of the other aspects are the same. They are really attacks by the defense that go toward whether plaintiff was making wise litigation decisions or could have cut costs in hindsight. The court will not engage in that process.The court does agree that the litigation consultant has not been adequately justified to warrant inclusion as a cost, and thus the motion will be granted in the amount of $8,192.54. The court is also not positive that it has proper documentation to support prior fees paid as a cost, and the motion is granted in the amount of $10,395 for that item. And finally, plaintiff has agreed to reduce the cost bill by $3550.84 and the motion is granted to that extent as well. In all other respects, the motion is denied.