Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiff Juan Perez (“Plaintiff”) initiated this action against defendant Aramexx Group, Inc. dba Aramexx Construction (“Defendant”). The action arises out of Defendant’s alleged discrimination and failure to provide reasonable accommodations arising from Plaintiff’s work restrictions as a result of injuries arising from an automobile accident. The complaint set forth seven causes of action for (1) Discrimination In Violation of Gov’t Code §§12940 et seq.; (2) Retaliation In Violation of Gov’t Code §§12940 et seq.; (3) Failure To Prevent Discrimination And Retaliation In Violation of Gov’t Code §12940(k); (4) Failure To Provide Reasonable Accommodations In Violation of Gov’t Code §§12940 et seq.; (5) Failure To Engage In A Good Faith Interactive Process In Violation Of Gov’t Code §§12940 et seq.; (6) Declaratory Judgment; and (7) Wrongful Termination In Violation Of Public Policy. 

¿On March 25, 2024, Plaintiff’s action was tried before a jury and a verdict was returned in Defendant’s favor on March 28, 2024. 

On April 12, 2024, Defendant filed a Memorandum of Costs, listing a total of $11,870.54 in costs. 

On April 26, 2024, Plaintiff filed the instant motion to strike the memorandum of costs in its entirety or in the alternative to tax certain costs. 

Any opposition was due on or before August 19, 2024. To date, no opposition has been filed. 

 

II. LEGAL STANDARD 

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) 

At the same time, the California Fair Employment and Housing Act, enacted at Government Code sections 12900-12996, provides that “[i]n civil actions brought under [FEHA], the court, in its discretion, may award to the prevailing party . . . reasonable attorney's fees and costs . . . except that, notwithstanding [a different Code section not at issue here], 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.” (Gov. Code, § 12965, subd. (b).) 

“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.” (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 99.) Although Code of Civil Procedure section 1032, subdivision (b) broadly mandates that costs be awarded to the prevailing party in civil actions, our Supreme Court in Williams made abundantly clear that Government Code section 12965(b) is an “express exception to Code of Civil Procedure section 1032(b)” in actions governed by FEHA. (Id. at 109.) 

“Because the majority of cases under the FEHA involve litigants who would not have the financial means to prosecute this type of case, the public policy behind the FEHA is served by not discouraging them from pursuing the litigation by potentially imposing fees that could easily devastate them financially simply because a few file frivolous claims. Thus, a plaintiff’s ability to pay must be considered before awarding attorney fees in favor of the defendant.” (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203.) “[A]n award of attorney fees should not subject the plaintiff to financial ruin.” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 868.) 

 

III. DISCUSSION 

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum… If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, Rule 3.1700(b)(1).) The cost memorandum was electronically served on April 12, 2024. The instant motion to tax costs was filed and served on April 26, 2024 and is therefore timely. 

First, the Court must determine whether Plaintiff’s claims are governed by FEHA such that the section 12965(b) express exception should apply. Here, a review of Plaintiff’s complaint demonstrates that all seven causes of action pled are FEHA claims. 

Second, Plaintiff is correct that under section 12965(b), a successful FEHA defendant is awarded costs only if “the action was frivolous, unreasonable, or groundless when brought, or [if] the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (b).) If neither of these is the case, Defendant may not be awarded its costs. 

Defendant did not oppose Plaintiff’s motion. A failure to oppose a motion may be deemed a consent to the granting of the motion. (CRC, Rule 8.54.) There is no argument by Defendant that Plaintiff’s action was frivolous, unreasonable, or groundless. Although Plaintiff was not successful in his action, his litigation appears to be grounded in legitimate concerns of disability discrimination and a failure to accommodate based on his medical condition resulting from an automobile accident which occurred just one month after his hiring. (Compl. ¶¶ 14, 16.) Plaintiff alleged that upon his return to work on March 6, 2017 with restrictions against heavy lifting, Plaintiff’s supervisor informed him on March 7, 2017, March 10, 2017, and March 14, 2017 that there was no work for him; Defendant refused to reinstate Plaintiff and Plaintiff was terminated on March 31, 2017. (Id. ¶¶ 17-22.) Shortly after, Plaintiff was informed by a former co-worker that Defendant routinely hired new employees despite what the supervisor informed Plaintiff. (Id. ¶ 23.) His grounds for believing that he was the victim discrimination based on his medical condition appear to have been reasonable. 

Defendant, likewise, has not argued that Plaintiff’s action subsequently became frivolous, unreasonable, or groundless, and that Plaintiff nevertheless “continued to litigate” after that point. (Gov. Code, § 12965.) In determining whether an action was frivolous, unreasonable, or groundless such that an award of costs is appropriate, “it is important that a . . . 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. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil, & Shapiro (2001) 91 Cal.App.4th 859, 895 [analyzing identical language applicable to Title VII claims]; see also Williams, supra, 61 Cal.4th at pp. 113 [embracing the “asymmetrical” nature of section 12965(b)’s costs provision in light of the Legislature’s express intent “to encourage persons injured by discrimination to seek judicial relief”].) 

Accordingly, the Court cannot find that Plaintiff’s lawsuit was frivolous, unreasonable, or groundless or that Plaintiff continued to litigate in such a way that awarding costs would be appropriate. “In amending [FEHA] to authorize discretionary awards of attorney fees and costs, our Legislature, like Congress before it, sought ‘to encourage persons injured by discrimination to seek judicial relief.’ [Citation.]” (Williams, supra, (2015) 61 Cal.4th at p. 112.) There is no evidence the action was objectively without foundation. In order to vindicate the intent of our Legislature, the striking or taxing of costs in this case is appropriate. (Assem. Off. of Research, 3d reading analysis of Assem. Bill. No. 1959 (1977-1978 Reg. Sess.) as amended Jan. 18, 1978, p. 1.) Defendant has failed to demonstrate otherwise. 

 

IV. CONCLUSION 

Plaintiff’s motion to tax costs is GRANTED. Defendant shall not recover its costs in this action. 

 

Moving Party is ordered to give notice. 

 

DATED: August 29, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.