Judge: Theresa M. Traber, Case: 20STCV42104, Date: 2025-01-03 Tentative Ruling

Case Number: 20STCV42104    Hearing Date: January 3, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 3, 2025                     JUDGMENT: August 8, 2024

CASE:                         Ozelia Harris v. Pomona Unified School District, et al.

CASE NO.:                 20STCV42104           

(1)   MOTION FOR ATTORNEY’S FEES;

(2)   MOTION TO TAX COSTS

MOVING PARTY:               (1) Defendants Pomona Unified School District and Rebecca Norwood; (2) Plaintiff Ozelia Harris

RESPONDING PARTY(S): (1) Plaintiff Ozelia Harris; (2) Defendants Pomona Unified School District and Rebecca Norwood

CASE HISTORY:

·         11/03/20: Complaint filed.

·         05/30/24: Jury verdict rendered for Defendants and against Plaintiff.

·         08/08/24: Judgment entered on special verdict.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for employment discrimination. Plaintiff alleges that Defendants engaged in retaliation and harassment against her based on her use of medical leave and/or her perceived disability. On May 30, 2024, the jury returned a verdict for Defendants and against Plaintiff, finding that Plaintiff was not subjected to an adverse employment action and was not harassed on the basis of a perceived disability.

            Defendants move for an award of attorney’s fees. Plaintiff moves to strike Defendants’ Memorandum of Costs.

TENTATIVE RULING:

Defendants’ Motion for Attorney’s Fees is DENIED.

            Plaintiff’s Motion to Tax Costs is GRANTED. Defendants’ Memorandum of Costs is stricken in its entirety.

DISCUSSION:

Motion for Attorney’s Fees

            Defendant moves for an award of attorney’s fees in the amount of $149,054 and costs in the amount of $31,323 pursuant to Government Code section 12965 subdivision (c)(6).

Timing of Motion

A motion for attorney’s fees following judgment must be served and filed within the time specified for a notice of appeal. (Cal. Rules of Court Rule 3.1702(b)(1).) A notice of appeal ordinarily must be served and filed within 60 days of service of the notice of entry of judgment, or within 180 days of the entry of judgment itself, whichever is earlier. (Rule 8.104(a).) The filing and service of a motion for new trial, a motion to vacate judgment, or a motion for judgment notwithstanding the verdict extends the deadline to appeal to the earliest of (1) 30 days after service of an order or notice of entry of an order denying the motion; (2) 30 days after denial of the motion by operation of law; or (3) 180 days after entry of judgment. (Rule 8.108 (b)-(d).) Here, the Notice of Entry of Judgment was served and filed on August 8, 2024. (Notice of Entry of judgment.) Plaintiff filed a motion for new trial on August 22, 2024, which was denied by the Court on October 4, 2024. (October 4, 2024 Minute Order.) Notice of that ruling was served on all parties that same date. (October 4, 2024 Certificate of Mailing.) As the 30^th day from that order was Sunday, November 3, 2024, Defendants’ deadline to bring this motion was the next day, Monday, November 4, 2024.  (Code Civ. Proc. §12a.) This motion was served and filed on Friday, November 1, 2024, so Defendants’ motion is timely.

Procedural Posture

Plaintiff filed the Complaint in this action on November 3, 2020, against Defendants Pomona Unified School District and Rebecca Norwood, alleging (1) retaliation in violation of the Fair Employment and Housing Act for taking medical leave and filing a complaint regarding alleged harassment (Complaint ¶¶ 32-36) and (2) harassment on the basis of a perceived disability. (Complaint ¶¶ 19; 37-40.) Defendants answered the Complaint on December 14, 2020, and moved for summary judgment on February 15, 2022 on the basis that (1) Plaintiff did not experience retaliation for taking medical leave; (2) Plaintiff did not experience retaliation for filing a complaint regarding alleged harassment; and (3) could not prevail on a harassment claim because she did not have a disability and did not allege any harassing conduct. (See February 15, 2022 Motion for Summary Judgment.) The Court issued its ruling on Defendants’ Motion on August 11, 2022. With respect to the first cause of action, the Court concluded that Defendants had failed to address the totality of the conduct alleged to support the retaliation claim (August 11, 2022 Minute Order pp. 6-7), failed to establish that the conduct which was addressed could not constitute an adverse employment action as a matter of law (Id p. 8), and failed to demonstrate that Plaintiff’s internal complaint did not constitute protected activity under FEHA. (Id. pp. 8-9). As to the second cause of action, the Court found that Defendants’ arguments were based on two misconceptions: first, that Plaintiff’s claim was grounded in harassment for an actual disability when it had always been premised on harassment for a perceived disability (August 11, 2022 Minute Order p.10) and, second, that the alleged conduct could not constitute harassment because Defendants erroneously contended that only verbal harassment constituted legally-recognized harassment. (Id.) The Court denied Defendants’ motion based on these findings. (August 11, 2022 Minute Order.)

A jury trial in this action commenced on May 15, 2024. (May 15, 2024 Minute Order.) The jury reached a verdict on May 30, 2024 in favor of the Defendants on both causes of action. (Special Verdict entered May 30, 2024.) The jury found that although Plaintiff had engaged in protected activity (Special Verdict No. 1), Defendants did not engage in conduct which, taken as a whole, materially and adversely affected the terms and conditions of Plaintiff’s employment (No. 2), and that Plaintiff was not subjected to harassing conduct based on a perceived disability. (No. 6.) Plaintiff’s post-trial motions were heard on October 2, 2024 and denied on the merits on October 4, 2024. (October 4, 2024 Minute Order.)

Entitlement to Fees

Defendant moves for an award of attorney’s fees in the amount of $149,054 and costs in the amount of $31,323 pursuant to Government Code section 12965 subdivision (c)(6).

            Subdivision (c)(6) of Government Code section 12965 states that, for civil actions brought under the Fair Employment and Housing Act; “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(c)(6) [Emphasis added].) As the language, purpose, and intent of California and federal anti-discrimination statutes are “virtually identical,” California courts “have adopted the methods and principles developed by federal courts in employment discrimination claims” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-87.) The Supreme Court’s decision in Christianburg Garment Co. v. EEOC sets forth the standard for awarding prevailing defendants attorney’s fees and costs, stating “such awards should be permitted ‘not routinely, not simply because he succeeds, but only where the action is found to be unreasonable, frivolous, meritless or vexatious.’” (Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421, quoting Carrion v. Yeshiva University (2d. Cir. 1976, 535 F.2d 722, 727.) As the court elaborated:

[T]he term “meritless” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term “vexatious” in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.

In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit[…]

To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.

(Christianburg Garment Co., supra, 434 U.S. at 421-22.)

            Defendants claim that the groundlessness of Plaintiff’s claims was apparent from the outset and was further emphasized by subsequent developments in the litigation. First, Defendants assert, without explanation or evidence, that Plaintiff was aware that her claims lacked merit from the inception of the lawsuit, and that she was apprised of that fact by a February 10, 2021 letter from Defendants’ counsel attacking the merits of her claims. The arguments of the Defendants’ counsel are not evidence of the lack of merit of Plaintiff’s claims, whether they are presented in the moving papers or in correspondence to the opposing party.

Next, Defendants contend that Plaintiff admitted that she did not experience an adverse employment action in her October 7, 2021 deposition, but that contention is belied by Defendants’ own evidence. Close examination of the partial transcript produced by Defendants reveals that, first, Plaintiff testified only that she had not been suspended or demoted and had not received a reduction in pay. (Defendants’ Exh. 8 p. 99.) That testimony does not, itself, establish that Plaintiff was not subjected to conduct which could, in aggregate, constitute a “substantial and detrimental” change in the terms and conditions of her employment. (Horsford v. Bd. of Trustees of California State Univ. (2005) 132 Cal.App.4th 359, 373.) Second, the deposition transcript cuts off immediately after Plaintiff testified that she had information that she should have—but did not—receive a raise after October 6, 2020. (Defendants’ Exh. 8 p. 99:19-24.) While that deposition testimony is not wholly favorable to Plaintiff, the Court does not consider it to be indicative of a total lack of evidence.

Third, Defendants assert that Plaintiff had no basis for her harassment claim because her Complaint concedes that Plaintiff had no disability as of April 2020, and she returned to work without restrictions on April 8, 2020. (See Complaint ¶ 13.) Therefore, Defendants claim, there was no basis for Defendants to perceive Plaintiff as having a disability. This argument is specious. The absence of a disability is not evidence, conclusive or otherwise, that Defendants did not or could not perceive Plaintiff as having a disability.

Fourth, Defendants contend that the parties’ showing at trial established that Plaintiff’s claims lacked merit because (1) Plaintiff did not produce evidence of a termination, suspension, denial of promotion, or reduction of wages, and (2) Defendant Norwood testified that she had no knowledge suggesting that Plaintiff might have a disability, had never seen Plaintiff’s internal complaint, and had no control over any of the other events for which Plaintiff blamed Defendant Norwood. (Declaration of Dominic Quiller ISO Mot. ¶¶ 12-17.) Defendants assert that the Court, in response to this showing, reconsidered its ruling on the Motion for Summary Judgment and “sua sponte modified that ruling by ordering that Plaintiff could only pursue a perceived disability claim.” (Motion p.10:15-16.) No such finding is reflected in the Court’s Minute Orders, and Defendants do not produce a trial transcript evidencing such a ruling. Moreover, the putative ruling described by Defendants would be illogical and unnecessary, as the Court’s August 11, 2022 ruling plainly states that the Complaint alleges harassment based on a perceived disability, not an actual disability. (August 11, 2022 Minute Order.) The erroneous recitation of the record notwithstanding, Defendants, in essence, assert that Plaintiff’s claims were groundless because Defendants elicited favorable testimony at trial and ultimately prevailed. This argument is exactly the type of post hoc reasoning discouraged by the Supreme Court.

Contrary to Defendants’ assertions, this was not a case where the only evidence of misconduct was the Plaintiff’s wholly unsupported opinion (Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73 [awarding attorney’s fees where only evidence of discrimination was plaintiff’s unsupported belief],) or where the course of discovery revealed the complete absence of evidence (Galen v. County of Los Angeles. (9th Cir. 2007) 477 F.3d 652, 666-68.) Rather, this was a case where, as Defendants’ showing on this motion demonstrates, some evidence supported Plaintiff’s position and, as reflected in the August 11, 2022 ruling, the conduct alleged could have risen to the level of actionable harassment or retaliation. That the jury ultimately found for Defendants is not sufficient.

The Court therefore finds that Defendants are not entitled to attorney’s fees and costs pursuant to Government Code section 12965(c)(6).

Conclusion

            Accordingly, Defendants’ Motion for Attorney’s Fees is DENIED.

Motion to Tax Costs

            Plaintiff moves to strike Defendants’ entire memorandum of costs solely on the basis that Defendants have not demonstrated their entitlement to costs under Government Code section 12965(c)(6).

            As Plaintiff states, and for the reasons set forth above, Defendants are not entitled to costs under Government Code section 12965(c)(6). Moreover, our Supreme Court has held that this code provision is an express exception to the general rule entitling prevailing parties to costs set forth in Code of Civil Procedure section 1032. (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 105.) Consequently, and contrary to Defendants’ argument in opposition, Defendants are only entitled to costs upon a finding by the Court that Plaintiff’s action was frivolous. (Williams, supra, 61 Cal.4th at 115.) As the Court declines to make such a finding for the reasons stated above, Defendants are not entitled to recover their costs.

            Accordingly, Plaintiff’s Motion to Tax Costs is GRANTED.

CONCLUSION:

            Accordingly, Defendants’ Motion for Attorney’s Fees is DENIED.

            Plaintiff’s Motion to Tax Costs is GRANTED. Defendants’ Memorandum of Costs is stricken in its entirety.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  January 3, 2025                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.