Judge: Timothy Patrick Dillon, Case: 19STCV18200, Date: 2023-01-06 Tentative Ruling

Case Number: 19STCV18200    Hearing Date: January 6, 2023    Dept: 73

JOANN KISHI v. CITY OF LOS ANGELES

Counsel for Plaintiff (Movant): D.N. Brady, Mark Stiffler (San Diego Employment Attorneys Group)

Counsel for Defendant (Opposition): Sylvia J. Quach (Los Angeles City Attorney)

Plaintiff’s Motion to Strike or Tax Defendant’s Memorandum of Costs

(8/05/22)

TENTATIVE RULING

The motion to strike Defendant’s memorandum of costs is granted.

I.                    Background

On May 24, 2019, Joann Kishi (“Plaintiff”) filed an action against the City of Los Angeles (“Defendant”) alleging violations of the Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and the Family Medical Leave Act (FMLA) arising out of her employment with Defendant.  Following a demurrer to the Second Amended Complaint (SAC), which the court sustained in part without leave to amend as to the fourth, fifth, and eighth causes of action, the remaining causes of action included the following:

                        CA/1: Continuous Disability Discrimination

                        CA/2: Continuous Retaliation for Achieving a Partial Accommodation of a Disability

                        CA/3: Continuous Retaliation for Making EEO Complaints

                        CA/6: Continuous Violation of the California Family Rights Act

                        CA/7: Continuous violation of the Family Medical Leave Act

On July 15, 2022, the court issued a ruling granting summary judgment in favor of Defendant to the remaining causes of action. In the ruling, the court found that Plaintiff did not proffer any evidence to support her claims. On July 22, Defendant filed a memorandum of costs seeking to recover filing and motion fees, deposition costs, and court reporter fees.

On August 5, 2022, Plaintiff filed the instant motion.  Defendant filed an opposition on December 22, and Plaintiff filed a reply on December 29.

II.                  Legal Standard

Code of Civil Procedure § 1032(a)(4) states that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding unless a statute expressly states otherwise. Code of Civil Procedure § 1033.5(a) lists the costs that are recoverable and includes attorney’s fees when they are authorized by either contract, statute, or law. (Code Civ. Proc., § 1033.5, subd.

(a)(10).) 

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, Rule 3.1700(a)(1).) “If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.) 

Per Code of Civil Procedure § 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mention in this section . . . may be allowed . . . in the Court’s discretion.” (Code Civ. Proc., §¿1033.5, subd. (c)(4).) 

In actions brought under FEHA, the Supreme Court in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams) held Government Code section 12965, subdivision (b), is an express exception to section 1032, subdivision (b)’s mandate to award costs to a prevailing party. (Williams, at p. 105.) The court further held that “the Christiansburg [Garment Co. v. EEOC (1978) 434 U.S 412] standard applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties under Government Code section 12965(b). [U]nder that standard a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust. [Citation.] A prevailing defendant, however, 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.” (Williams, supra, 61 Cal.4th at p. 115.)

III.               Discussion

Plaintiff seeks to strike Defendant’s memorandum of costs in its entirety because Plaintiff brought this action in good faith and without the requisite degree of frivolousness. (Mot., p. 2.) Alternatively, if the court determines that Defendant is entitled to costs, Plaintiff argues Defendant is not entitled to filing and motion fees nor the videotaping costs because these costs “were not reasonably necessary to the conduct of the litigation.” (Mot., pp 5-6.)

Defendant contends it is entitled to costs because Plaintiff’s claims are meritless and because Plaintiff’s non-FEHA claims do not overlap with the FEHA causes of action. (Opp., pp, 2, 4.)

In reply, Plaintiff reiterates that she brought this action in good faith and that Defendant fails to cite authority for the proposition that merely prevailing on a motion for summary judgment amounts to a determination that Plaintiff’s claims are objectively groundless.

A.     Plaintiff’s FEHA Claims

The court finds that Plaintiff’s FEHA claims were not objectively without foundation. Contrary to Defendant’s assertion, the court’s order granting summary judgment in favor of Defendant did not state that Plaintiff’s FEHA claims were meritless. Rather, the court concluded that Plaintiff failed to produce sufficient evidence that raised a triable issue of material fact as to the first, second, and third causes of action. Under these circumstances, the court cannot find Plaintiff’s FEHA claims lacked foundation. By way of comparison, in Roberts v. Stanford University (2014) 224 Cal.App.4th 67, a FEHA case concerning claims of race discrimination, the court affirmed an award of costs to the prevailing defendant because the plaintiff “never had or even claimed to have any evidence that race discrimination played a role in his termination other than his own opinion.” (Roberts, at p. 73.) Defendant does not argue or otherwise show that Plaintiff’s FEHA claims were based solely upon her opinion. Defendant does not carry its burden.

Additionally, the court previously sustained Defendant’s demurrer to Plaintiff’s other FEHA claims—causes of action four, five, and eight. The parties do not address whether the sustaining of the demurrer to those FEHA claims means those claims were objectively groundless. The demurrer was sustained without leave to amend because of a failure to sufficiently plead the claims. (2/18/20 Minute Order). As such, the court finds the sustaining of the demurrer without leave as to those FEHA claims does not mean those claims are objectively groundless. Defendant has failed to demonstrate otherwise. Plaintiff carried her burdens. Defendant did not.

In sum, the motion to tax costs as to Plaintiff’s FEHA claims is GRANTED.

B.      Plaintiff’s Non-FEHA Claims

The court now considers whether Defendant is entitled to costs for Plaintiff’s CFRA and FMLA claims. Plaintiff argues Defendant is not entitled to costs for those claims because they were not unreasonable, frivolous, or vexatious. When a plaintiff pleads other civil rights theories in addition to FEHA causes of action, and those theories are not based on the same alleged misconduct, the prevailing defendant may recover costs pursuant to Code of Civil Procedure section 1032. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1059-1060.) However, when non-FEHA causes of action are “intertwined and inseparable with the FEHA claims,” the FEHA exception applies. (Roman, supra, at 1062, fn. 20.) As explained in Roman, this protection makes sense because the inclusion of intertwined and inseparable theories of liability does not increase overall costs and advances the “clear legislative goal of encouraging potentially meritorious FEHA suits.” (Ibid.) Here, a review of the complaint shows that the CFRA and FMLA claims resided upon the same alleged misconduct. Those claims are predicated upon Defendant’s alleged discrimination and retaliation against Plaintiff for taking leave to care for her ailing husband. (See SAC ¶ 78 [“DEFENDANTS continually violated the CFRA/FMLA by discriminating against PLAINTIFF, retaliating against her and/or otherwise adversely treating her for taking leave under the CFRA in the manner described above, interfering with the use of that leave and/or denying her the opportunity to return to her same or a substantially similar position.”], and SAC ¶ 88 [“Defendants violated the FMLA by discriminating against Plaintiff and retaliating against Plaintiff for taking leave under the FMLA in the manner described above and by interfering with her use of such leave.”]; compare with SAC ¶ 49 [“DEFENDANTS continually retaliated against PLAINTIFF for requesting an accommodation of her husband’s disabilities and/or for needing an accommodation of her husband’s disabilities and/or for achieving an accommodation or partial accommodation of her husband’s disabilities in violation of California Government Code § 12940 et seq. by engaging in a course of conduct which included, but is not limited to, at least some of the acts alleged above.”].) On the summary judgment motion, the same alleged adverse actions and statute of limitations issues were involved with the non-FEHA  causes of action  as with the FEHA causes of action. Plaintiff also asserted the same arguments regarding the alleged wrongful recording of her time off and the loss of her staff for both the FEHA and non-FEHA causes of action. 

Thus, the general rule as set forth under Code of Civil Procedure section 1032 providing that the prevailing party is entitled to costs does not apply. Plaintiff’s non-FEHA claims are sufficiently intertwined with the alleged misconduct undergirding her FEHA claims.

Plaintiff carried her burdens. Therefore, the motion to strike costs as to the CFRA and FMLA claims is GRANTED.

IV.               Conclusion & Order

Plaintiff’s motion is granted. Plaintiff carried all of her burdens on this motion.Because the court grants the motion as to all of Plaintiff’s claims, the court does not address Plaintiff’s alternative motion to tax Defendant’s filing and motion fees and videotaping costs.

Moving party is ordered to give notice.