Judge: Stephen P. Pfahler, Case: 18STCV07913, Date: 2025-03-04 Tentative Ruling

Case Number: 18STCV07913    Hearing Date: March 4, 2025    Dept: 68

Dept. 68

Calendar # 6

Date: 3-4-25

Case #18STCV07913

Trial Date: Not Set

MOTION TO STRIKE COSTS  

MOVING PARTY: Plaintiff, Victoria Williams   

RESPONDING PARTY: Defendant, Pasadena Area Community College District

RELIEF REQUESTED

Plaintiff moves for an order striking the costs set forth in the cost memorandum submitted by Defendant Pasadena Area Community College District.

SUMMARY OF ACTION

Plaintiff Victoria Williams (Plaintiff) alleges that she has been subject to harassment, retaliation, and discriminatory conduct by Defendants. Plaintiff is a 35-year-old African American woman who alleges that she is employed as an Administrative Assistant I for Defendant Pasadena Area Community College District (Defendant) in its Office of Strategic Communications and Marketing. Plaintiff alleges that at the time of her initial hire with Defendant, she was improperly placed at the lowest pay level for the Administrative Assistant I position. Plaintiff unsuccessfully objected to her improper pay level placement. Plaintiff alleges that the failure to pay her at the appropriate pay level is part of a systemic pattern and practice of underpaying classified, African American, female employees. Plaintiff made numerous complaints regarding this pay disparity.

On December 11, 2018, Plaintiff filed a complaint for 1. Gender and Race Discrimination in Violation of FEHA; and 2. Violation of PCC’s Rules and Regulations for Classified Employees.

On July 16, 2019, Plaintiff filed a First Amended Complaint for 1. Damages for Race Discrimination in Violation of Gov. Code § 12940(a); 2. Damages for Gender Discrimination in Violation of Gov. Code § 12940(a); 3. Declaratory and Injunctive Relief in Violation of Gov. Code § 12940(a); 4. Declaratory and Injunctive Relief in Violation of Education Code § 45110; 5. Damages for Retaliation in Violation of Gov. Code § 12940(h); and 6. Damages for Unpaid

Wages in Violation of Labor Code § 204. 

On August 28, 2019, pursuant to a request for dismissal filed by Plaintiff, the Court dismissed the fifth cause of action in the First Amended Complaint without prejudice.  

On April 19, 2021, after hearing, the Court granted Plaintiff’s motion for leave to file a Second Amended Complaint. (04/19/21 Minute Order.) Plaintiff was ordered to file a Second Amended Complaint within five days. (04/19/21 Minute Order.)  

On April 23, 2021, Plaintiff filed the operative Second Amended Complaint for 1. Race Discrimination in Violation of Gov. Code § 12940(a); 2. Gender Discrimination in Violation of Gov. Code § 12940(a); 3. Declaratory and Injunctive Relief for Violation of Gov. Code § 12940(a); 4. Declaratory and Injunctive Relief for Violation of Education Code § 88010; 5. Retaliation in Violation of Gov. Code § 12940(h); and 6. Failure to Prevent Discrimination and Retaliation in Violation of Gov. Code § 12940(k).

On August 13, 2021, Defendant filed an answer to the Second Amended Complaint.

On August 4, 2023, Defendant filed a motion for summary judgment or, alternatively, summary adjudication as to each cause of action in the Second Amended Complaint. Plaintiff opposed the motion for summary judgment and Defendant filed a reply.

On January 5, 2024, after hearing, the Honorable Douglas W. Stern sitting in Department 68 granted the motion for summary judgment in its entirety. (01/05/24 Minute Order at p. 10.)

On June 10, 2024, the Court entered judgment in favor of Defendant and against Plaintiff. On such date, notice of entry of judgment was mailed by the Clerk’s office to the parties.

On July 11, 2024, Plaintiff filed a notice of appeal, which indicates that Plaintiff is appealing the Court’s entry of judgment.

On August 2, 2024, Defendant filed and served notice of entry of judgment following summary judgment.

On August 14, 2024, Defendant filed and served a memorandum of costs (summary) in which Defendant seeks costs in the sum of $23,049.96.

On August 23, 2024, Plaintiff filed and served the instant motion to strike costs. Plaintiff seeks to strike the memorandum of costs on the grounds that “Defendant’s request for costs pursuant to California Rules of Court Rule 3.1700 is untimely and not allowed under the California Fair Employment and Housing Act.” (Not. of Mot. at p. 3:9-11.)

On February 19, 2025, Defendant filed an opposition to the motion to strike costs, to which Plaintiff replied on February 25, 2025.  

RULING: Granted.

Plaintiff, Victoria Williams (Plaintiff) moves for an order striking the memorandum of costs filed by Defendant Pasadena Area Community College District (erroneously sued as Pasadena City College) (Defendant).

Request for Judicial Notice

In the opposition brief, Defendant requests that the Court take judicial notice of its ruling Defendant’s motion for summary judgment.

The Court GRANTS Defendant’s request for judicial notice. (Evid. Code §§ 451, 452.)

Discussion

“As a general rule, the prevailing party in a lawsuit is entitled to recover allowable costs.” (Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 556 (Neeble).) “The established procedure for recovering the costs allowed under section 1032 is to file a cost memorandum, supported by a verified statement of counsel.” (Ibid.) “In such cases, [i]f the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred, and [t]he normal procedure to challenge individual items is by a motion to tax costs.” (Ibid.) “If no timely motion to tax costs is filed, the court has no involvement with the cost award. Instead, rule 3.1700(b)(4) states the clerk must immediately enter the costs on the judgment.” (Ibid.)

However, “when the defense prevails in a FEHA action, it has no automatic right to recover costs under section 1032; instead, it must move the court to make a discretionary award of such costs, based in part on a specific finding that the action was frivolous.” (Neeble, supra, 99 Cal.App.5th 551, 557.) “[A]n unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Ibid.) Thus, “in an ordinary civil case [the prevailing defendant] is entitled to an award of statutory costs as a matter of right—and the filing of a cost memorandum is the proper means of securing a cost award in such cases—a different rule applies to a defendant in a FEHA case: the court has discretion to make such an award, but it must first make a finding that the plaintiff’s FEHA claims are frivolous.” (Id. at p. 554.)

The Memorandum of Costs is Untimely

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, Rule 3.1700(a)(1).) “[A]ny period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California . . . .” (Code Civ. Proc., § 1013, subd. (a).) “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc. § 12.) “If any city, county, state, or public office . . . is closed for the whole of any day, insofar as business of that office is concerned, that day shall be considered a holiday for the purposes of computing time . . . .” (Code Civ. Proc. § 12b.)

Here, the Clerk’s office mailed notice of entry of judgment to counsel for the parties on June 10, 2024. Thus, the memorandum of costs should have been filed by Monday, July 1, 2024, given that June 30, 2024 was a Sunday. Defendant, however, did not file a memorandum of costs until August 14, 2024. The memorandum of costs is untimely. The opposition argues that Defendant filed notice of entry of judgment on July 30, 2024. (Opp’n at p. 2:16-18.) The notice of entry of judgment was not filed by Defendant until August 2, 2024. Under CRC 3.1700, the date the Clerk’s office mailed notice of entry of judgment is the operative date for determining the timeliness of the memorandum of costs. It follows that the filing of the memorandum of costs on August 14, 2024 is untimely.

“The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.) Defendant may have moved for permission to file a late memorandum of costs. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380-381.)

Defendant has not filed a timely memorandum of costs. The Court therefore finds that the memorandum of costs should be stricken due to untimeliness.

Defendant Failed to Follow Proper Procedures to Claim Costs  

In addition to the memorandum of costs being untimely, the Court finds that Defendant failed to follow proper procedures to claim costs. Given that the operative Second Amended Complaint raises FEHA causes of action, Defendant should have filed a motion for the Court to make a discretionary award of costs on the grounds that this action was frivolous. (Neeble, supra, 99 Cal.App.5th 551, 557.) Where a complaint alleges causes of action based on “the California Fair Employment and Housing Act . . . the court cannot award costs to a defendant unless it makes a finding that the FEHA claims were objectively frivolous.” (Id. at p. 554.) Instead of filing a memorandum of costs, Defendant should have filed a motion for costs pursuant to Neeble, supra, 99 Cal.App.5th 551, 557.

As such, the Court grants Plaintiff’s motion to strike costs.

Plaintiff, Victoria Williams to give notice.