Judge: Stephen I. Goorvitch, Case: 20STCV12295, Date: 2023-08-24 Tentative Ruling

Case Number: 20STCV12295    Hearing Date: January 8, 2024    Dept: 39

Sujey Tinoco v. Teresa Medical Center, Inc.

Case No. 20STCV12295

Motions to Strike and Tax Costs

Motion for Reconsideration

            A.        Motions to Strike and Tax Costs

Plaintiff filed motions to strike and tax costs that certain defendants have sought as prevailing parties.  In actions under the Fair Employment and Housing Act, “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); see also Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 76.)  The Court finds that Plaintiff’s action against Defendants, while ultimately unsuccessful, was not frivolous.  Defendant Arjang Naim, M.D. relies on Plaintiff’s discovery responses, but these responses were served prior to the close of discovery, so they are not dispositive.  Based upon the foregoing, Plaintiff’s motions are granted.

B.        Motion for Reconsideration

Plaintiff filed a motion for reconsideration of this Court’s decision to grant Defendant Arjang Naim’s motion for nonsuit on the thirteenth cause of action.  Code of Civil Procedure section 1008 requires a party seeking reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown” in the current motion.  (Code Civ. Proc., 1008, subd. (b).)  The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time . . . .”  (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations and citations omitted.)

Plaintiff seeks reconsideration based on Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th 427, which the Court of Appeal decided prior to the Court’s ruling on Defendant’s motion for nonsuit.  As such, Plaintiff has not shown a change in law that is a proper basis for reconsideration of the ruling on the motion for nonsuit.  Regardless, this case does not warrant a different decision.  In that case, the Court recognized that a corporate officer may be liable for violation of a wage and hour provision if the officer violated the provision or caused the violation of the provision.  (See Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th 427, 445, fn. 8.)  Plaintiff did not present sufficient evidence at trial that Arjang Naim—as opposed to one of his subordinates—violated the wage and hour provisions or directly caused the violations.  Therefore, Plaintiff’s motion is denied.

C.        Sanctions

In his opposition, Defendant requests sanctions under Code of Civil Procedure section 128.5.  Defendant cannot seek affirmative relief in opposition to the motion, as Plaintiff has not had an adequate opportunity to respond.  Further, the request for sanctions under Section 128.5 is denied as procedurally defective based on Defendant’s failure to provide Plaintiff with a safe harbor period in which to withdraw the motion for reconsideration.  (Code Civ. Proc., § 128.5, subd. (f)(1)(B), (D).)

D.        Conclusion and Order

Based upon the foregoing, the Court orders as follows:

1.         Plaintiff’s motions to strike and tax costs are granted. 

2.         Plaintiff’s motion for reconsideration is denied.

3.         Defendant’s request for sanctions is denied.

4.         Plaintiff’s counsel shall prepare and lodge a judgment on or before January 12, 2024.

5.         The Court sets a non-appearance case review for January 29, 2024, at 1:30 p.m.

6.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.