Judge Upinder S. Kalra, Case Number: 22STCV17164, Date: 2024-11-26 Tentative Ruling

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RESPONDING PARTY(S): Defendants Tutor Perini Corporation and Tutor-Saliba Corporation

On May 24, 2022, Plaintiff Severino Dela Rosa (“Plaintiff”) filed a complaint against Defendants Tutor Perini Corporation, Tutor-Saliba Corporation, Tutor-Saliba Managed Joint Ventures (“Defendants”). The complaint alleged four causes of action based on age discrimination, retaliation, and wrongful discharge. Plaintiff alleges that he was discriminated against based on his age and eventually wrongfully terminated by Defendants.

On July 6, 2022, Defendants filed a motion to compel arbitration which the court DENIED.

On June 24, 2024, Defendants filed Judgment on Jury Verdict. The Judgment was in favor of Defendants. Judgment was entered that same date.

On July 24, 2024, Plaintiff filed the instant motion to strike or tax costs. On November 12, 2024, Defendants filed an opposition. On November 19, 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 contends Defendants cannot recover costs because Plaintiff’s FEHA Complaint was not frivolous, unreasonable, or without foundation. Alternatively, Plaintiff contends that Defendants’ requested costs are unreasonable and improper. Defendants argue costs are warranted because the action was objectively frivolous but concedes that two trial transcripts, totaling $806.75, should be stricken from its memorandum of costs.[1]

After a prevailing party files a memorandum of costs, the losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike or tax costs. (See Cal. Rules of Court, rule 3.1700(b).)¿

A prevailing party is “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.” (Code Civ. Proc., § 1032(a)(4).) ¿“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs.” (Id., § 1032(b).)¿¿

“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.)¿ On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs.¿ (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774–776.)¿ Whether an item listed on the cost bill was reasonably necessary is a question of fact for the trial court, whose decision is reviewed on appeal for abuse of discretion.¿ (Bender v. County of Los Angeles, supra, 217 Cal.App.4th at 989.)¿¿¿

“…Government Code section 12965(b) is an express exception to Code of Civil Procedure section 1032(b) and the former, rather than the latter, therefore governs costs awards in FEHA cases.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.)¿

“In 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.”¿¿

Here, Plaintiff’s motion is well taken. First, Plaintiff’s action concerns wrongful termination due to his age (80 years old). (Rodriguez Decl. ¶¶ 8-9.) Defendant, on the other hand, did provided insufficient evidence (if at all) to convince this court that Plaintiff’s action was objectively frivolous. That the jury ultimately decided in Defendants’ favor is not dispositive. (See Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 873-974.) In this case, Plaintiff presented evidence at trial to support his position. (Rodriguez Decl. ¶¶ 10-17.) While the jury ultimately rejected the evidence, that finding alone does not necessarily establish that the claims were objectively frivolous.

Accordingly, the court GRANTS Plaintiff’s motion to strike Defendants’ memorandum of costs.

[1] Defendants introduce, rather than develop, their argument that the action was frivolous. Defendants cite one discovery response by Plaintiff in support of this contention.