Judge: Teresa A. Beaudet, Case: BC697933, Date: 2023-12-22 Tentative Ruling

Case Number: BC697933    Hearing Date: December 22, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On March 13, 2018, Plaintiff Vilma Zeron (“Plaintiff”) filed this action against Defendant Eagle Foods, Inc. (“Defendant”), alleging causes of action for (1) sexual harassment -  hostile work environment in violation of FEHA, (2) failure to protect in violation of FEHA, and (3) retaliation in violation of FEHA. On March 2, 2020, Plaintiff filed an Amended Complaint which amends paragraph 2 of the Complaint and deletes Paragraph 7c of the Complaint. 

On April 3, 2023, a Judgment Following Jury Trial (the “Judgment”) was filed in this action. The Judgment provides that “[t]his action came on regularly for trial on March 1, 2023 in Department 50 of the Los Angeles County Superior Court, located at 111 N. Hill Street, Los Angeles, CA 90012. A jury trial was conducted…The jury found in favor of Defendant. THEREFORE, IT IS HEREBY ORDERED, AJUDGED AND DECREED: judgment is hereby entered in favor of Defendant and against Plaintiff…” The Court’s April 3, 2023 minute order in this action provides, inter alia, “Court orders judgment entered for Defendant Eagle Foods, Inc. against Plaintiff Zeron, Vilma on the Amended Complaint (1st) filed by Vilma Zeron on 03/02/2020 for a total of $0.00.”

On April 10, 2023, Defendant filed a Memorandum of Costs.

Plaintiff now moves “for an order striking in its entirety Defendant’s Memorandum of Costs, and taxing all the costs set forth therein.” Defendant opposes.

Evidentiary Objections

The Court sustains Defendant’s evidentiary objection to the Declaration of Jeffrey Lipow filed in support of the reply, and the exhibit thereto. (See Defendant’s Evid. Objection No. 1.) As noted by Defendant, “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.”¿(Jay v.¿Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537.) In light of the foregoing, Defendant’s evidentiary objections 2, 3, 4, and 5 are moot.  

Discussion

Pursuant to Code of Civil Procedure section 1032, subdivision (b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Pursuant to Code of Civil Procedure section 1032, subdivision (a)(4), “‘[p]revailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”

Costs recoverable under section 1032 are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., §§ 1033.5, subds. (c)(2), (3).) Costs “merely convenient or beneficial” to the preparation of a case are disallowed. (Code Civ. Proc., § 1033.5, subd. (c)(2); see Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [expenses for attorney meals incurred while attending local depositions not “reasonably necessary”].)

“A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 [italics and brackets omitted].) “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.” (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)

On April 10, 2023, Defendant filed a Memorandum of Costs claiming a total of $101,206.36 in costs.

In the motion, Plaintiff discusses Government Code section 12965, subdivision (c)(6), which provides that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, 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.”[1]

Plaintiff asserts that here, “although Defendant prevailed at trial, the record establishes that Plaintiff’s case was highly meritorious and non-frivolous.” (Mot. at p. 3:9-10.) Plaintiff asserts that “it is unequivocal that Plaintiff had an objective basis for believing her case had potential merit. Beyond the Court’s denying Defendant’s Motion for Summary Judgment thereby permitting the case to go to trial, the Court denied Defendant’s Motion for Nonsuit upon Plaintiff resting her case and the jury found in favor of Plaintiff on the first four questions of the Special Verdict thereby finding that she had been unlawfully sexually harassed in Defendant’s workplace. There is no basis under the law to find that Plaintiff’s claim was frivolous.” (Mot. at p. 4:20-26.)

The Court notes that on October 25, 2019, the Court issued an order denying Defendant’s motion for summary judgment in its entirety. In addition, on March 9, 2023, the Court issued an Order providing, inter alia, “the Court hereby DENIES Defendant’s motion for non-suit.”

On March 14, 2023, a “Joint Proposed Special Verdict Form” was filed in this action. The Joint Proposed Special Verdict Form indicates that the Jury answered “Yes” to the following questions: (1) “Was Vilma Zeron subjected to unwanted harassing conduct because she is a woman?”; (2) “Was the harassment severe or pervasive?”; (3) “Would a reasonable woman in Vilma Zeron’s circumstances have considered the work environment to be hostile or abusive?”; (4) “Did Vilma Zeron consider the work environment to be hostile or abusive?” The Joint Proposed Special Verdict Form indicates that the Jury answered “No” to the fifth question, “Did Eagle Foods, Inc. or its supervisors know or should it have known of the harassing conduct and did they fail to take immediate and appropriate corrective action?”

In the opposition, Defendant asserts that “[o]n the undisputed record, Plaintiff could not have reasonably believed that she had any objective basis for believing her failure to prevent harassment and wrongful termination claims had potential merit.” (Opp’n at p. 7:10-13, emphasis omitted.)[2] Defendant notes that on October 3, 2019, Plaintiff filed a request for dismissal of her third cause of action for retaliation. In addition, on April 5, 2021, Plaintiff filed a request for dismissal of her second cause of action for “Violation of FEHA – Failure to Protect.” Defendant argues that “[t]here is nothing in the record offering a good faith basis for why the wrongful termination and failure to prevent harassment claims were initially brought and/or dismissed prior to the incurrence of fees and costs associated with these claims. Understanding that the two of the three causes of action were dismissed without consideration, [Defendant] at a minimum should be award [sic] 2/3 of the costs incurred during the discovery process pre-trial.” (Opp’n at p. 8:3-8.)

As discussed, Plaintiff did not allege any cause of action for wrongful termination. In addition, Defendant does not appear to address Plaintiff’s point that the Court denied Defendant’s motion for summary judgment. Defendant’s motion concerned the first cause of action for sexual harassment - hostile work environment in violation of FEHA and the second cause of action for failure to protect in violation of FEHA. (See October 25, 2019 Order.) The Court’s October 25, 2019 Order on the motion provides, inter alia, that “[Defendant] contends that the failure to prevent cause of action must fail because there is no viable harassment claim. Nevertheless, because the Court finds that a triable issue of fact exists as to the sexual harassment claim, including on the issue of whether [Defendant] took immediate corrective action following [Plaintiff’s] complaints about Mr. Dezotell’s conduct, a similar triable issue of fact exists as to whether [Defendant] took all reasonable steps necessary to prevent harassment.” (October 25, 2019 Order at p. 8:8-12.)

In addition, to the extent Defendant’s arguments in the opposition concern Plaintiff’s third cause of action for retaliation, Defendant does not appear to demonstrate why such cause of action was purportedly “frivolous, unreasonable, or groundless when brought.” (Gov. Code, § 12965, subd. (c)(6).) Plaintiff also notes that “Defendant cites no authority that supports its contention that dismissing claims renders them per se frivolous.” (Reply at p. 6:6-7.)

            Defendant also asserts that “Plaintiff’s sexual harassment claim was equally baseless and without factual support. Plaintiff cites to the special verdict form and the jury answering “yes” to questions 1 through 4…These questions, however, do not pertain to [Defendant’s] conduct or its liability. These initial four questions relate to the conduct of Darrell Dezotell, a non-managerial employee, whose conduct [Defendant] could not be held strictly liable for.” (Opp’n at p. 8:12-17.) Defendant argues that “[i]nstead, [Defendant] could only be held liable if it failed to take prompt and corrective action in response to the complaints of Plaintiff relating to Mr. Dezotell’s conduct. This question, which was question #5 of the special verdict form, was answered in the negative…” (Opp’n at p. 8:17-20.)

            But as discussed above, Defendant does not appear to address Plaintiff’s point that the Court denied Defendant’s motion for summary judgment. In its October 25, 2019 Order, the Court found, inter alia, that “[Defendant] has failed to meet its burden of showing that [Plaintiff’s] sexual harassment claim is without merit.” (October 25, 2019 Order at p. 6:11-12.) The Court also found that “[b]ased on the evidence presented, the Court finds that a triable issue of fact exists as to whether [Defendant] is liable for the alleged sexual harassment for its failure to take immediate and appropriate corrective action based on its knowledge of Mr. Dezotell’s conduct.” (Id. at p. 7:21-24.) Plaintiff asserts that “[t]he fact that [the Jury] did not find in favor of Plaintiff on Question No. 5 does not transmute Plaintiff’s claim into a frivolous, wholly meritless claim.” (Reply at p. 4:9-10.)

            In light of the foregoing, the Court does not find that Defendant has shown that Plaintiff’s action “was frivolous, unreasonable, or groundless when brought,” or that Plaintiff “continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (c)(6).) Accordingly, based on the foregoing, the Court grants Plaintiff’s motion to strike Defendant’s Memorandum of Costs.   

Conclusion

Based on the foregoing, the Court grants Plaintiff’s motion “for an order striking in its entirety Defendant’s Memorandum of Costs.”

Plaintiff is to provide notice of this ruling.¿

DATED:  December 22, 2023                        ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court