Judge: Michelle Williams Court, Case: BC719042, Date: 2022-09-27 Tentative Ruling

Case Number: BC719042    Hearing Date: September 27, 2022    Dept: 74

BC719042      MARKLAND WATSON VS FRONTIER CALIFORNIA INC

Plaintiff Markland Watson’s Motion to Strike Defendants’ Costs

TENTATIVE RULING: Plaintiff Markland Watson’s Motion to Strike Defendants’ Costs is GRANTED in its entirety.  The memorandum of costs filed by Defendants on August 5, 2022 is stricken.

Background

On August 23, 2018, Plaintiff Mark Watson filed this action against Defendants Frontier California, Inc., Frontier Communications Corporation Citizens Telecom Services Company, LLC, and Duval Cormier. The complaint asserted causes of action for: (1) discrimination based on race, national origin, or ancestry; (2) failure to prevent discrimination; (3) intentional infliction of emotional distress; (4) wrongful termination in violation of public policy.

On May 10, 2022, the Court granted Defendants’ motion for summary judgment. The Court entered judgment on July 22, 2022.

Defendants filed their memorandum of costs on August 5, 2022 seeking $5,268.45.

Motion

On August 23, 2022, Plaintiff Markland Watson filed the instant motion to strike Defendants’ costs, noting a Court must find an action “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so” before Defendants can claim costs.

Opposition

In opposition, Defendants contend Plaintiff’s case was frivolous and he had no evidence to support his claims.

Reply

On September 20, 2022, Plaintiff filed his reply. Plaintiff’s reply was due on September 19, 2022 and is untimely as September 23, 2022 is a Court holiday. (Code Civ. Proc. § 1005(c).) The reply reiterates Plaintiff’s original arguments and contends Defendants have not demonstrated the claims were frivolous, unreasonable, or groundless.

Motion to Tax Costs

Standard

Code of Civil Procedure section 1033.5(a) sets forth the items allowable as costs while Section 1033.5(b) details the items that are not allowable as costs. “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”  (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.) Costs must be both “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,” (Code Civ. Proc. § 1033.5(c)(1)), and reasonable in amount. (Code Civ. Proc. § 1033.5(c)(2).)

However, in FEHA cases, “the Christiansburg standard applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties under Government Code section 12965(b). To reiterate, under that standard a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust. A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 (citation omitted). See Gov. Code § 12965(c)(6) (“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.”).)

“No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.”  (Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 422.) “In applying these criteria, it is important that a district 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.”  (Id. at 421-22.) 

The standard is high, as even a failure to demonstrate a prima facie case, standing alone, is not sufficient to justify a finding that the action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (See e.g. Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1388 (finding an abuse of discretion if trial court relies upon failure to establish a prima facie case).)

“Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not been increased by the inclusion of additional theories of liability to the primary FEHA claim asserted, the express public policy of Government Code section 12965, subdivision (b), controls.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062.) 

Plaintiff’s Claims Were Not Frivolous, Unreasonable, or Groundless When Brought, and Plaintiff Did Not Continue to Litigate After it Clearly Became So

Plaintiff cites several cases that establish the standard outlined above and discusses the facts of federal district court cases to argue his claims were not frivolous.

Plaintiff cites Swirski v. Protec Building Services, Inc. (S.D. Cal., Apr. 29, 2022, No. 320CV01321LABMDD) 2022 WL 1289692, which relied entirely upon the allegations in the complaint to deny costs to the prevailing defendant. (Id. at *2 (“But Protec can't definitively conclude that Swirski lacked a reasonable belief that she was presenting non-frivolous claims. Her Complaint alleged multiple, specific incidents of age-related comments or questions . . . Taking these factual allegations into consideration, the Court doesn't find her case to be so lacking in evidence as to be groundless or entirely without foundation.”).) Respectfully, the Court is not persuaded by the district court’s finding that allegations in an unverified pleading are sufficient.

Neither case cited by the court in Swirski stands for the proposition that allegations alone are sufficient. (Ibid. citing Sullivan v. School Bd. of Pinellas County (11th Cir. 1985) 773 F.2d 1182, 1189 and Jones v. Texas Tech University (5th Cir. 1981) 656 F.2d 1137, 1145.) In Sullivan, the Eleventh Circuit noted the opposite, that the decision to deny costs or fees must be based upon whether a plaintiff had evidence to support their claims. (Sullivan, supra, 773 F.2d at 1189 (“In cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand.”).) Similarly  in Jones, supra, the Fifth Circuit reversed the district court for relying solely upon the ultimate outcome, and not whether the plaintiff’s claims had factual support. (Jones, supra, 656 F.2d at 1145–1146 (“There is no indication in the court's findings of fact or elsewhere in the record that the court made the inquiry required under Christiansburg whether Jones' claim was void of arguable legal merit or factual support.”).)

Plaintiff also cites Calderon v. Fresenius USA, Inc. (C.D. Cal., Apr. 19, 2022, No. CV207869PSGJEMX) 2022 WL 3012158. In Calderon, the court granted summary judgment based upon its finding that plaintiff was unable to perform the essential functions of her job and could not demonstrate pretext. The court noted plaintiff “did not concede that any particular patient care duty was an essential function or otherwise admit she was unable to perform the job's essential functions” and “did not fail to submit any evidence to support her claims or clearly admit at her deposition the basis for Defendants' legitimate reason for the adverse employment action.” (Id. *3-4.)

Most relevant to Plaintiff’s claims and the summary judgment ruling in this case, the court stated “although the Court found Plaintiff’s declaration insufficient, without corroborating evidence, to raise a genuine dispute that she was able to perform her job's essential functions, [Citation], the declaration itself does not render Plaintiff's claims frivolous.” (Id. at *3 citing Logan v. Compton Unified School District (C.D. Cal., Nov. 19, 2019, No. SACV1601695CJCKESX) 2019 WL 8198200, at *4 (“But even if Plaintiff admitted she had performance issues, that is not inconsistent with a theory that Defendants' legitimate reasons for terminating her were pretextual. Defendants also point out that Plaintiff was unable to produce evidence in the end to support her claims that the investigation was biased or that the Defendants' reasons for terminating her were pretextual. [Citation] But this is the type of hindsight logic the Supreme Court has discouraged.”).)

Finally, plaintiff cites Irish v. Magnussen Home Furnishings, Inc. (C.D. Cal., June 26, 2018, No. CV 17-515 PSG (KSX)) 2018 WL 6074528. In Irish, the parties disputed whether the plaintiff was an employee or independent contractor and the court found “[w]hile the Court ultimately determined that Plaintiff was an independent contractor, nothing he admitted in his deposition or declaration rendered Plaintiff's claims frivolous.” (Id. *2.)

In opposition, Defendants contend they are entitled to their costs because Plaintiff’s claims were frivolous. Defendants’ motion is supported by the declaration of their counsel, which states the procedural history of this action and attaches the Court’s ruling on their summary judgment motion. (Bernstein Decl. ¶¶ 2-8, Ex. A.) Defendants cite Robert v. Stanford University (2014) 224 Cal.App.4th 67 where the court upheld an order of costs to a defendant in a FEHA case based upon the following:

Robert claimed in his 2010 FEHA cause of action that his termination was based on race. Stanford asserted that it had terminated him due to his harassment of another employee. Before Robert even initiated his FEHA action, this court had already upheld a restraining order against Robert based on this harassment. Robert never had or even claimed to have any evidence that race discrimination played a role in his termination other than his own opinion.

(Id. at 73.) The court noted “[d]uring discovery, Robert never identified any evidence other than his own testimony that might support his FEHA cause of action [and a]t trial, Robert testified that he believed that those responsible for investigating the harassment and terminating him had discriminated against him based on his ‘native ancestry.’ He provided no other evidence in support of his discrimination claim.” (Id. at 69.) The Court of Appeal held “[t]he trial court did not abuse its discretion in concluding that Robert's action was both meritless and vexatious. The complete absence of evidence to support his FEHA action reflected its meritless nature, and the timing of his initiation of this action indicated that his action was intended to harass.” (Id. at 73.)

Defendants also cite Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, which the Court finds unpersuasive here. In Villanueva, the trial court sustained objections to nearly all the plaintiff’s evidence. (Id. at 1195–1196 (“our task in undertaking a de novo review in this case has been simplified in that virtually every piece of evidence submitted by Villanueva in opposing summary judgment was excluded in response to the City's objections. Stripped of the excluded evidence, there is absolutely nothing to support his theory. . . . Villanueva does not now challenge the propriety of those evidentiary rulings.”).) The Court of Appeal cited the trial court’s determination, including that “[Villanueva] botched the September 2002 alarm incident. He was suspended. Others were terminated. No racial overtones appear, even remotely, with respect to this situation.” (Id. at 1200.)

Defendants correctly note Plaintiff in this action relied only upon his declaration and testimony. However, as noted in the Court’s order, Plaintiff provided more factual details than were present in Robert and discussed in Villanueva, including his observations of potential disparate discipline on the basis of race and the facts supporting his belief that he could work on his own vehicles, the conduct for which he was ultimately terminated. That this Court found Plaintiff’s insufficient to raise a triable issue of fact does not warrant an award of costs to Defendants here. The Court finds sufficient evidence to deny Defendants’ request for costs. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 872 (“under Christiansburg an airtight claim is not a prerequisite to bringing suit.”).)

The motion is GRANTED.