Judge: Stephen P. Pfahler, Case: 21STCV02017, Date: 2025-03-04 Tentative Ruling

Case Number: 21STCV02017    Hearing Date: March 4, 2025    Dept: 68

Dept. 68

Calendar # 7

Date: 3-4-25

Case #21STCV02017

Trial Date: Not Set

MOTION TO STRIKE OR TAX COSTS  

MOVING PARTY: Plaintiffs, Marcus Hudson and Melvin Lacey   

RESPONDING PARTY: Defendants, Browning-Ferris Industries of California, Inc., Republic Services, Inc., and Consolidated Disposal Service, LLC; Defendant Peter Pouwels  

RELIEF REQUESTED

Plaintiffs move for an order striking and/or taxing the costs set forth in the cost memorandums filed by Defendants Browning-Ferris Industries of California, Inc. (BFIC) and Peter Pouwels (Pouwels).

SUMMARY OF ACTION

Plaintiffs Marcus Hudson and Melvin Lacey (Plaintiffs) filed this action against Defendants, alleging several causes of action related to workplace harassment, sexual assault, failure to accommodate, and wrongful termination. Plaintiffs allege that while they were both working for Defendants, Defendant Peter Pouwels, regularly subjected them to inappropriate comments and touching of a sexual nature. Later, Plaintiffs allege that they developed mental health issues as a result of the harassment and then faced inadequate accommodations, harassment, and disbelief regarding their disabilities when they disclosed them to their employer. Plaintiff Hudson eventually resigned from the employment of Defendants, but Plaintiff Lacey continues to work there.

On January 15, 2021, Plaintiffs filed a complaint against Defendants Browning-Ferris Industries of California, Inc. (BFIC), Republic Services, Inc. (Republic), Consolidated Disposal Service, LLC (Consolidated), Peter Pouwels (Pouwels), and Does 1-100 for 1. Sexual Harassment in Violation of Gov. Code § 12940(J); 2. Failure to Investigate and Prevent Sexual Harassment in Violation of Gov. Code § 12940(K); 3. Retaliation in Violation of Gov. Code § 12940(h); 4. Retaliation in Violation of Labor Code § 1102.5; 5. Failure to Provide Reasonable Accommodation in Violation of FEHA; 6. Failure to Engage in Interactive Process; and 7. Negligent Infliction of Emotional Distress.

On October 27, 2021, Plaintiff filed a First Supplemental and Amended Complaint for 1. Sexual and Disability Harassment in Violation of Gov. Code § 12940(J); 2. Sexual Assault and/or Battery; 3. Failure to Investigate and Prevent Sexual and Disability Harassment in Violation of Gov. Code § 12940(K); 4. Retaliation in Violation of Gov. Code § 12940(h); 5. Retaliation in Violation of Labor Code § 1102.5; 6. Failure to Provide Reasonable Accommodation in Violation of FEHA; 7. Failure to Engage in Interactive Process; 8. Negligent Infliction of Emotional Distress; and 9. Wrongful Termination in Violation of Public Policy. Defendant Pouwels was not named as a defendant regarding the third, fourth, fifth, sixth, seventh, and ninth causes of action in the First Supplemental and Amended Complaint.

On December 16, 2022, Defendants BFIC, Republic, and Consolidated (collectively, the “BFIC Defendants”) filed a joint motion for summary judgment or, alternatively, summary adjudication.

On December 19, 2022, Defendant Pouwels filed a notice of joinder as to the motion for summary judgment or, alternatively, summary adjudication in which he indicated that he wished to join the motion filed by the BFIC Defendants as to the issues of the first cause of action for sexual and disability harassment; second cause of action for sexual assault and/or battery; and eighth cause of action for negligent infliction of emotional distress.

On December 22, 2022, the BFIC Defendants filed an amended motion for summary judgment or, alternatively, summary adjudication.

On February 21, 2023, Plaintiff filed an opposition to the motion for summary judgment, to which the BFIC Defendants replied.

On March 7, 2023, after hearing, the Court denied the amended motion for summary judgment filed by the BFIC Defendants. (03/07/23 Minute Order.) The Court, however, granted the motion as to punitive damages. (03/07/23 Minute Order.) The Court granted summary adjudication as to the battery and emotional distress claims. (03/07/23 Minute Order.)

On June 6, 2023, Defendant Pouwels filed a motion for summary judgment or, alternatively, summary adjudication of issues. Plaintiffs opposed the motion, and Defendant Pouwels replied.

On August 21, 2023, Plaintiffs filed a motion for leave to file a Second Amended Complaint, to which the BFIC Defendants opposed, and Plaintiffs replied.

On August 22, 2023, after hearing, the Court granted in part the motion for summary judgment or, alternatively, summary adjudication of issues filed by Defendant Pouwels. The Court denied the motion for summary adjudication as to the first, second, and eighth causes of action. (08/22/23 Minute Order.) The Court, however, granted the motion for summary adjudication as to the issue of punitive damages. (08/22/23 Minute Order.)

On September 13, 2023, after hearing, the Court granted Plaintiffs’ motion for leave to file a Second Amended Complaint. (09/13/23 Minute Order.)

On September 13, 2023, Plaintiffs filed the operative Second Supplemental and Amended Complaint for 1. Sexual and Disability Harassment in Violation of Gov. Code § 12940(J); 2. Sexual Assault and/or Battery; 3. Failure to Investigate and Prevent Sexual and Disability Harassment in Violation of Gov. Code § 12940(K); 4. Retaliation in Violation of Gov. Code § 12940(h); 5. Retaliation in Violation of Labor Code § 1102.5; 6. Failure to Provide Reasonable Accommodation in Violation of FEHA; 7. Failure to Engage in Interactive Process; 8. Negligent Infliction of Emotional Distress; and 9. Wrongful Termination in Violation of Public Policy (by Plaintiff Hudson only). Defendant Pouwels was not named as a defendant regarding the third, fourth, fifth, sixth, seventh, and ninth causes of action in the Second Supplemental and Amended Complaint.

The BFIC Defendants and Defendant Pouwels filed respective answers to the Second Supplemental and Amended Complaint.

On May 21, 2024, this matter was called for jury trial. (05/21/24 Minute Order.) Pursuant to an oral request made by Plaintiff, Does 1-100, inclusive, were dismissed without prejudice and Defendant Consolidated was dismissed from the Second Supplemental and Amended Complaint. (05/21/24 Minute Order at p. 2.)

On June 6, 2024, Defendant BFIC’s oral motion for directed verdict was argued and denied. (06/06/24 Minute Order at p. 1.) Also, on June 6, 2024, after deliberating, the jury returned a special verdict, finding in favor of Defendants BFIC and Pouwels, and against Plaintiffs. (06/06/24 Minute Order.)

On July 16, 2024, the Court entered judgment in favor of Defendants BFIC and Pouwels and against Plaintiffs.

On July 18, 2024, Defendant BFIC filed and served notice of entry of judgment.

On July 30, 2024, Defendant Pouwels filed and served a memorandum of costs in which Defendant Pouwels seeks costs in the sum of $22,500.73.

Also, on July 30, 2024, Defendant BFIC filed and served a memorandum of costs in which Defendant BFIC seeks costs in the sum of $82,815.30.

On August 12, 2024, pursuant to stipulation, the Court entered an order extending Plaintiffs’ deadline to file a motion to strike or tax costs to September 16, 2024.

On September 16, 2024, Plaintiffs filed and served the instant motion to strike or tax costs. Plaintiffs seek to strike and/or tax the costs claimed in the respective cost memorandums filed by Defendant BFIC and Defendant Pouwels. The motion is made on the grounds that Defendants “(1) were required to file their own motions to seek costs because this is a FEHA case; (2) seek to recover costs that are not allowable by law since costs are not authorized against a plaintiff in a FEHA case absent a showing that the case was objectively without foundation; (3) seek to recover costs that were not reasonably necessary to the conduct of the litigation; and (4) seek to recover costs that are not reasonable in amount.” (Not. of Mot. at p. 1:8-13.)

If the respective cost memorandums are not stricken in their entirety, Plaintiffs request an order taxing $5,032.18 from the cost memorandum submitted by Defendant Pouwels. (Not. of Mot. at p. 1:22-26.)

On December 27, 2024, the BFIC Defendants filed an opposition to the motion to strike or tax costs.

On December 31, 2024, Defendant Pouwels filed an opposition to the motion to strike or tax costs.

On January 7, 2025, Plaintiffs filed a reply brief.   

RULING: Granted.

Plaintiffs, Marcus Hudson and Melvin Lacey (Plaintiffs) move for an order striking the memorandums of costs filed by Defendant Browning-Ferris Industries of California, Inc. (“BFIC”) and Defendant Peter Pouwels (“Pouwels”).

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.)

Gov. Code § 12965(c)(6) provides that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party . . . reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, 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. (c)(6).)

“[A]n unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees and costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99-100.) “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.” (Id. at p. 99.) “A prevailing defendant . . . 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.” (Id. at p. 115 [emphasis in original].)

Thus, “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.) While “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.)

Plaintiffs’ Evidence in Support of the Motion

Plaintiffs’ counsel, Lien M. Nguyen (“Nguyen”), relevantly declares that immediately before trial, all claims were voluntarily dismissed by Plaintiffs except the claims against Defendant BFIC for “FEHA Sexual Harassment; FEHA Failure to Prevent Sex Harassment; FEHA Retaliation; 1102.5 Retaliation; and Constructive Discharge in Violation of Public Policy.” (Nguyen Decl., ¶ 3.) As to Defendant Pouwels, all claims against him were dismissed except for Plaintiffs’ claims for FEHA Sexual Harassment. (Nguyen Decl., ¶ 3.) Counsel declares that the motions for summary judgment filed by Defendants BFIC and Pouwels were denied. (Nguyen Decl., ¶ 4; Exh. A.) On June 6, 2024, the jury returned a verdict in favor of Defendants. (Nguyen Decl., ¶ 5.) Defendants have not filed a motion requesting an award of costs. (Nguyen Decl., ¶ 9.)

Evidence Presented by the BFIC Defendants in Opposition to the Motion

Counsel for the BFIC Defendants, Miko Sargizian (“Sargizian”), provides a declaration in opposition to the motion. Ms. Sargizian relevantly states the following: as to the causes of action in the First Amended Complaint, the Court granted summary adjudication and dismissed Plaintiffs’ non-FEHA assault and battery claim (the second cause of action) and their negligent infliction of emotional distress claims (eighth cause of action). (Sargizian Decl., ¶¶ 2, 5; Exh. C.) The Court also dismissed Plaintiffs’ claim for punitive damages. (Sargizian Decl., ¶ 2; Exh. C.) On the eve of trial, and after Defendants incurred significant costs and fees preparing for trial, Plaintiffs dismissed their failure to accommodate and failure to engage in the interactive process claims, leaving only the sexual harassment, failure to investigate, retaliation, and wrongful termination (Plaintiff Hudson only) claims. (Sargizian Decl., ¶ 6.) Counsel states that prior to dismissing their disability related claims, it was clear these claims were frivolous as: (1) Defendant BFIC went above and beyond in allowing Plaintiffs to remain on leave without medical documentation; and (2) Plaintiffs admitted they received their requested work accommodations. (Sargizian Decl., ¶ 7; Exhs. D, E, F, G.)

Ms. Sargizian further states that the jury agreed that Plaintiffs’ claims were frivolous by ruling in Defendants’ favor. (Sargizian Decl., ¶ 8; Exh. H.) Ms. Sargizian then sets forth that Plaintiffs’ testimony at trial regarding the alleged harassment confirmed that the claims were frivolous. (Sargizian Decl., ¶ 9; Exh. I.) Defendants contend that Plaintiff Hudson admitted at trial that he committed perjury when he testified that he applied and interviewed for a new employment position before Defendants forced him to resign. (Sargizian Decl., ¶ 10; Exh. J.) Ms. Sargizian attests to the reasonableness of the claimed costs. (Sargizian Decl., ¶ 14.) Ms. Sargizian declares that the BFIC Defendants are seeking statutory costs that they are entitled to under CCP § 1032(b) as the prevailing party. (Sargizian Decl., ¶ 15.)

Evidence Presented by Defendant Pouwels in Opposition to the Motion

Jessica Di Palma (“Di Palma”) declares that Defendant Pouwels’ motion for summary judgment as to the First Amended Complaint was denied; however, the Court did dismiss Plaintiffs’ claims for punitive damages against Defendant Pouwels. (Di Palma Decl., ¶¶ 4-5.) On the eve of trial, Plaintiffs voluntarily dismissed the claims for sexual assault/battery, as well as their claim for negligent infliction of emotional distress, against Defendant Pouwels. (Di Palma Decl., ¶ 6.) Thus, the sexual harassment cause of action against Defendant Pouwels was tried to the jury. (Di Palma Decl., ¶ 6.) Defense counsel states that at trial it became clear that Plaintiffs’ remaining claims against Defendants were completely frivolous. (Di Palma Decl., ¶ 7; Exh. 3.) The jury agreed and ruled in favor of Defendants. (Di Palma Decl., ¶ 7; Exh. 3.) Counsel attests that Plaintiffs’ own testimony at trial regarding the alleged harassment by Defendant Pouwels confirmed that the claims were frivolous. (Di Palma Decl., ¶ 8; Exh. 4.) Ms. Di Palma attests to the reasonableness of the costs claimed by Defenant Pouwels. (Di Palma Decl., ¶ 10.)

Defendants Failed to Follow Proper Procedures to Claim Costs  

Initially, the Court will address the argument of the BFIC Defendants that they are entitled to discretionary costs on their non-FEHA claims pursuant to CCP § 1032. Code Civ. Proc. § 1032 defines the prevailing party as “a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) Thus, it is clear that Defendant BFIC and Defendant Pouwels are prevailing parties.

However, the reliance of the BFIC Defendants on Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040 (Roman) does not support their contention that the BFIC Defendants are entitled to discretionary costs on their non-FEHA claims. In Roman, plaintiffs Gabriel Roman and Luminita Roman (the Romans) brought an action against defendants BRE Properties, Inc. and BRE Villa Azure, LLC (collectively BRE) alleging that BRE engaged in disability discrimination when the Romans attempted to view available units at an apartment complex. (Roman, supra, 237 Cal.App.4th 1040, 1043.) The Romans filed suit against BRE “for injunctive and declaratory relief damages, alleging disability discrimination in violation of the California Fair Employment and Housing Act . . . the Unruh Civil Rights Act . . . Civil Code section 54 . . . Business and Professions Code section 17200 . . . as well as negligence.” (Id. at p. 1045.)

BRE then moved for summary judgment and the court granted BRE’s motion for summary judgment. (Roman, supra, 237 Cal.App.4th 1040, 1049.) Judgment was thereafter entered, and the judgment indicated that BRE was the prevailing party “under Civil Procedure Code sections 1032 and 1033.5, [and] BRE is entitled to an award of allowable costs as a matter of right.” (Ibid.) Thereafter, BRE sought costs pursuant to a memorandum of costs, and the Romans moved to strike the cost bill “arguing that it would be an abuse of discretion to award costs to a prevailing patty defendant in a FEHA cases unless the plaintiffs’ claims were frivolous, unreasonable, or groundless . . . .” (Roman, supra, 237 Cal.App.4th 1040, 1049.) The trial court denied the motion to tax costs and the Romans appealed such order. (Id. at p. 1050.)

On appeal, the Roman court addressed the issue of whether the trial court abused its discretion in awarding costs to BRE. (Roman, supra, 237 Cal.App.4th 1040, 1044.) The Roman court held that the trial court made an error when it held “that regardless of the FEHA standard, the mandatory language of section 1032, subdivision (b), governed the award of costs . . . because the Romans unsuccessfully pursued causes of action against BRE under several statutes other than FEHA.” (Id. at p. 1059.) The Roman court noted that the FEHA and non-FEHA claims alleged by the Romans were intertwined and inseparable. (Ibid.) The Roman court stated that the exception in Gov. Code § 12965(b) to the mandatory award of costs under CCP § 1032(b) “implements a clear legislative goal of encouraging potentially meritorious FEHA suits.” (Id. at p. 1062.) The Roman court held that “[u]nless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant.” (Ibid.)

Here, Plaintiffs alleged FEHA and non-FEHA claims in the operative Second Amended Complaint. Under Roman, supra, 237 Cal.App.4th 1040, although Plaintiffs pursued FEHA and non-FEHA causes of action, CCP § 1032(b) does not control. Thus, Defendants BFIC and Pouwels must show that the FEHA claims were frivolous before costs allocated to non-FEHA claims may be recovered. (Roman, supra, 237 Cal.App.4th 1040, 1062.)

Although Defendants BFIC and Pouwels have presented declarations from their respective counsel as to the purported frivolousness of Plaintiffs’ FEHA claims, the Court finds that Defendants BFIC and Pouwels failed to follow proper procedures to claim costs. The Court cannot make such a finding from an opposition brief as “[d]ue process requires a party . . . be given adequate notice. . . .” (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1482.)  And, in any event, the Court does not find that plaintiffs’ FEHA claims were frivolous.

Given that the operative Second Amended Complaint raises FEHA causes of action, Defendants BFIC and Pouwels should have filed motions 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, Defendants BFIC and Pouwels should have filed motions for costs pursuant to Neeble, supra, 99 Cal.App.5th 551, 557.

Moreover, Neeble, supra, 99 Cal.App.5th 551 supports Plaintiffs’ position that Defendants were required to file a motion for an award of costs. The plaintiff in Neeble filed a complaint against defendant Hotel California for “both statutory and nonstatutory causes of action arising out of her alleged status as an employee . . . .” (Neeble, supra, 99 Cal.App.5th 551, 555.) Judgment was entered in favor of defendant. (Ibid.) The defendant then filed a memorandum of costs and a separate motion for attorney fees. (Ibid.) The motion for attorney fees was denied. (Ibid.) Plaintiff Neeble filed a motion to tax costs, but the trial court denied such motion as untimely. (Ibid.) Plaintiff Neeble appealed the award of costs. (Ibid.) The Neeble court reversed the order awarding costs. (Id. at p. 558.) The Neeble court held that “the cost memorandum was . . . an ineffective means of seeking costs in [a] FEHA case.” (Id. at p. 557.) The Neeble court indicated that defendant Hotel California failed to file the necessary motion for costs and therefore forfeited such claim. (Id. at p. 558.)  

The Neeble court did not indicate whether the nonstatutory causes of action asserted in the complaint were FEHA or non-FEHA claims. However, FEHA claims are statutory in nature. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 713, fn. 2.) Thus, the Court deduces that the plaintiff in Neeble also raised nonstatutory, non-FEHA claims. Here, Plaintiffs also raised nonstatutory, non-FEHA causes of action. Like the defendant in Neeble, Defendants BFIC and Pouwels prevailed on FEHA and non-FEHA claims but did not file the requisite motion for costs. As such, the Court finds it warranted in striking the memorandum of costs filed by Defendants BFIC and Pouwels.

Plaintiffs’ Tertiary Arguments

Though not necessary to address due to the Court’s analysis above, the Court will briefly address Plaintiffs’ additional argument that Defendants BFIC and Pouwels seek costs that were not reasonably necessary to the conduct of the litigation and are unreasonable in amount. 

“The right to recover . . . costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Ibid.) “If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Ibid. [citation omitted].) Items not expressly allowed or prohibited by CCP § 1033.5 “may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) An award of costs is subject to the limitation that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Moreover, costs which are allowed “shall be reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(3).)

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “[T]he burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-83.)

Here, had the Court found that Defendants BFIC and Pouwels were entitled to costs pursuant to their respective memorandum of costs, the Court would have found that Plaintiffs failed to meet their burden to challenge any cost item. The declaration of Attorney Nguyen in support of the motion is void of any evidence as to the unreasonableness or lack of necessity of the claimed costs. (See Calcor Space Facility, Inc. v. Superior Court (1997) [“In law and motion practice, factual evidence is supplied to the court by way of declarations”].)  

Based on the foregoing, the Court GRANTS Plaintiffs’ motion to strike costs.

Plaintiffs, Marcus Hudson and Melvin Lacey to give notice.