Judge: Stephen I. Goorvitch, Case: 21STCV24005, Date: 2023-08-30 Tentative Ruling

Case Number: 21STCV24005    Hearing Date: January 10, 2024    Dept: 39

Ashley Olson v. Matrix Rehabilitation, Inc., et al.

Case No. 21STCV24005

Motion to Strike and Tax Costs

            Plaintiff Ashley Olson (“Plaintiff”) filed this employment action against Matrix Rehabilitation, Inc. and Patricia Apodaca (collectively, “Defendants”).  The Court granted summary judgment on August 31, 2023, based upon which Defendants filed a memorandum of costs.  Plaintiff moves to strike and tax costs in this case.

            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 raises a series of procedural issues.  Defendant argues that Plaintiff’s notice of motion states that the hearing would be held on January 8, 2024, not January 10, 2024.  The Court is baffled by this argument.  In fact, the notice of motion states that the hearing would be held on January 10, 2024, and it is clear that Defendant’s counsel knows the correct date of the hearing. 

Defendant also argues that the motion is not timely.  Per California Rules of Court, rule 3.1700: “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 by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”  The memorandum of costs was filed on October 4, 2023, and the motion was filed on October 24, 2023.  The Court rejects this argument for two reasons.  First, Defendant is not automatically entitled to costs in a FEHA case, as discussed.  Rule 3.1700 applies only to costs to which a party is entitled as a matter of right.  (See Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015-1016.)  Second, the Court has discretion to consider a motion filed within 30 days of the deadline, per Rule 3.1700(b)(3), and Plaintiff filed the motion only a few days late. 

The Court has considered Defendant’s remaining arguments and finds none to be persuasive.  Therefore, the Court orders as follows:

1.         Plaintiff’s motion to strike and tax costs is granted.

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