Judge Upinder S. Kalra, Case Number: 19STCV07112, Date: 2024-03-13 Tentative Ruling

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1. An Order striking Defendants’ memorandum of costs, or alternatively, an Order striking costs.

Plaintiff¿Viviriana Guatemala¿(“Plaintiff”) brings this employment action against¿Defendants Regus Management Group, LLC (“Regus”), Erika Deras (“Deras”), and Does (collectively “Defendants”) alleging that she was subject to discrimination, harassment, retaliation, and termination based on her disability.¿

On February 28, 2019, Plaintiff filed a Complaint, and on February 18, 2020, the operative Third Amended Complaint (“TAC”) against Defendants for the following causes of action:¿

(4) Failure to Engage in Good-Faith Interactive Process in Violation of the FEHA;

On September 30, 2020, the Court sustained a demurrer as to the first through sixth and eighth causes of action without leave to amend. The only remaining causes of action are seventh and ninth.

On April 7, 2021, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication.

On May 6, 2021, Plaintiff also filed a motion for summary adjudication as to the ninth cause of action only.

On September 8, 2021, the court granted Defendants’ motion for summary judgment and denied Plaintiff’s motion for summary adjudication. Judgment was entered in favor of Defendants on September 30 2021.

On October 26, 2021, Plaintiff filed a motion to tax costs, arguing that her claims are all intertwined with Plaintiff’s FEHA allegations. Accordingly, Plaintiff argued that the FEHA exception applies such that a prevailing defendant in a FEHA action is only entitled to recover costs if it can be established that plaintiff’s claims were “frivolous, unreasonable or groundless” or “without foundation.” Plaintiff, therefore, asked this court to strike all costs. Alternatively, Plaintiff argued that the court should strike all of Defendants’ costs as unsupported. Finally, Plaintiff requested that the court deny costs due to Plaintiff’s current financial condition.

On January 27, 2022, the court found that Defendants are entitled to all reasonable costs incurred after September 30, 2020. For pre-September 30, 2022 costs, the court found that Defendants were entitled to reasonable costs for non-FEHA related claims only. The court requested supplemental briefing from the parties and, on March 11, 2022, taxed $5,311.65 in costs and awarded Defendants $8,624.42 in costs.

On November 21, 2023, the Court of Appeal issued a Remittitur affirming the trial court’s rulings on Defendants’ demurrer and motion for summary judgment. The Court of Appeal also determined that Defendants are entitled to recover their costs on appeal.

On January 17, 2024, Plaintiff filed the instant motion to strike or tax costs. On February 29, 2024, Defendants filed an opposition. On March 6, 2024, Plaintiff filed a reply.

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action of proceeding. (Cal. Code Civ. Proc. (CCP) § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Allowable costs under CCP § 10335 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.)

Plaintiff makes the same arguments here as she did at the prior motion to strike or tax costs in 2022. Plaintiff’s arguments fail for the same reasons.

“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.” Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 99.) Although Code of Civil Procedure section 1032, subdivision (b) broadly mandates that costs be awarded to the prevailing party in civil actions, our Supreme Court in Williams made abundantly clear that Government Code section 12965(b) is an “express exception to Code of Civil Procedure section 1032(b)” in actions governed by FEHA. (Id. at p. 109.)

Here, the only interpretation of the record that the court sees that could favor Plaintiff is that the appeal concerned her demurrer which had the FEHA claims. However, as the Court of Appeal discussed, the FEHA claims were defective on their face because they were brought well-after the one-year statute of limitations ran and were therefore barred as a matter of law. The remaining claims decided on summary judgment were not FEHA claims. Moreover, the Court of Appeal expressly found that Williams does not apply in this case, in affirming the trial court’s prior award of costs. That finding appears to be the law of the case. Even if it was not, this Court agrees with the Court of Appeal. Williams simply does not apply. As such, this argument fails.[1]

Plaintiffs remaining arguments to tax costs or exercise discretion to deny awarding costs also fail. Initially, Plaintiff challenged all costs. As rightly pointed out by Defendant, the cost memorandum is prima facie evidence that the costs—filing fees, preparation of clerk’s record on Plaintiff’s appeal—were incurred. As such, it was incumbent on Plaintiff to bring forth evidence challenging the costs memorandum, not simply make argument. It can hardly be disputed that an appeal was actually prosecuted by Plaintiff and Defended by Defendant. (See Remittitur.) On reply, Plaintiff only challenges Defendants’ fees for counsel’s pro hac vice appearance. (Reply 3:3-11.) Plaintiff’s argument that this is merely convenient is not well taken. Defendants’ counsel has been involved with this case since 2020. It is reasonably necessary to have the counsel who is intimately familiar with the case proceed to appeal. What is more, the challenged charge of $66.46 is hardly cost prohibitive. As to Plaintiff’s financial condition, as with the prior motion to tax costs, Plaintiff only cites to FEHA cases and/or comparable federal employment discrimination cases to support her contention. The court is not persuaded that these authorities apply. As such, these arguments also fail.

Accordingly, the court DENIES Plaintiff’s motion to strike, or alternatively tax, costs.

[1]Plaintiff’s reliance on Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, is similarly misplaced. There, the FEHA claims and the non-FEHA claims were part of the same order granting the Motion for Summary Judgment. Here, the FEHA claims were dismissed at Demurrer. Only the non-FEHA claims were adjudicated at the Motion for Summary Judgment.