On 07/01/2016 ANA FLORES filed a Labor - Wrongful Termination lawsuit against CEDRIC WHITE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL P. LINFIELD. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MICHAEL P. LINFIELD
COUNTY OF LOS ANGELES PROBATION DEPART-
DOES 1 THROUGH 50
CHAMI LAW PC
CHAMI POUYA B. ESQ.
HAUSMAN JEFFREY M. ESQ.
SCHIMMEL ALAN I. ESQ.
1/5/2018: PLAINTIFF'S OBJECTION TO DEFENDANTS' [PROPOSED] AM?NDED JUDGMENT
3/6/2018: NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)
11/14/2016: PROOF OF SERVICE SUMMONS
8/30/2017: DEFENDANT COUNTY OF LOS ANGELES' MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM ATTEMPTING TO ARGUE THAT A GOVERNMENTAL ENTITY SHOULD BE PUNISHED FOR ALLEGED ACTS OR; ETC.
8/30/2017: DEFENDANT'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM INTRODUCING ANY WITNESSES, EVIDENCE, DOCUMENTS OR; ETC.
9/1/2017: PROOF OF SERVICE
9/7/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM ANY CLAIM NOT SPECIFIED IN A TIMELY AMINISTRATIVE COMPLAINT; DECLARATION OF MICHAEL W PARKS
9/7/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO PROCEED TO TRIAL AND DISMISS HARASSMENT CLAIMS; DECLARATION OF MICHAEL. W. PARKS
9/7/2017: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE "H" ETC.
9/15/2017: REPLY BRIEF IN SUPPORT OF MOTION TO PERMIT EVIDENCE OF PLAINTIFF'S PAST CONDUCT TO ATTACK THE PLAINTIFF'S CREDIBILITY (EVIDENCE CODE SECTION 783)
9/27/2017: PARTIES' JOINT CACI JURY INSTRUCTIONS
10/6/2017: Minute Order
11/8/2017: Proof of Service
11/20/2017: DECLARATION OF LINDA MILLER SAVITT
11/20/2017: DEFENDANT COUNTY OF LOS ANGELES MOTION TO TAX COSTS; DECLARATION OF JEFFREY M. HAUSMAN IN SUPPORT THERE OF
12/5/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
12/13/2017: REPLY BRIEF IN SUPPORT OF MOTION FOR JUDCMENT NOTWITHSTANDING THE VERDICT
NOTICE OF VACATING DEFAULT OR NON-COMPLIANCERead MoreRead Less
Notice; Filed by ClerkRead MoreRead Less
NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)Read MoreRead Less
NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)Read MoreRead Less
Ntc to Attorney re Notice of Appeal; Filed by ClerkRead MoreRead Less
NOTICE OF APPEALRead MoreRead Less
Notice of Appeal; Filed by County of Los Angeles Probation Depart- (Defendant)Read MoreRead Less
Designation of Record on Appeal; Filed by County of Los Angeles Probation Depart- (Defendant)Read MoreRead Less
APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)Read MoreRead Less
NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)Read MoreRead Less
Notice of Case Management Conference; Filed by Ana Flores (Plaintiff)Read MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
NOTICE OF CONFERENCE CASE MANAGEMENTRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Ana Flores (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES 1. RETALIATION (GOV. CODE 12940 ET SEQ.); ETCRead MoreRead Less
Case Number: BC625953 Hearing Date: August 17, 2020 Dept: 34
SUBJECT: Motion to Tax Costs
Moving Party: Plaintiff Ana Flores
Resp. Party: Defendant County of Los Angeles
The Court GRANTS Plaintiff’s motion to tax Defendant’s costs in their entirety, with the exception of Defendant’s appellate filing fees of $775.00.
Plaintiff Ana Flores commenced this action on July 1, 2016 against Defendants Cedric White and County of Los Angeles Probation Department for: (1) retaliation; (2) discrimination based on sex; (3) harassment based on sex; and (4) failure to prevent discrimination and harassment.
On October 6, 2017, a jury found in favor of Plaintiff on her causes of action for retaliation and failure to prevent discrimination and harassment against the County of Los Angeles and awarded $62,127.20. (10/26/2020 Judgment.)
On December 7, 2017, the Court awarded attorney fees to plaintiff in the amount of $687,000.00. After Defendant’s motion to tax costs, Plaintiff received costs in the amount of $22,489.39. (See 01/17/18 Minute Order.)
On March 1, 2018, the Court granted in part and denied in part Plaintiff’s request for supplemental fees. The Court awarded supplemental attorney’s fees in the amount of $33,297.60 and supplemental costs in the amount of $954.21, for a total of $34,251.71.
On March 2, 2018, the Court filed an amended judgment.
On March 26, 2018, Plaintiff’s counsel filed a notice of entry of this amended judgment.
On April 10, 2018, Defendant County of Los Angeles filed a notice of appeal.
On December 13, 2019, the appellate opinion was filed, in which the appellate court found that the jury’s finding on retaliation was not supported by the evidence. (Appellate Opinion, p. 2.) In particular, the appellate court held:
“The amended judgment entered on January 30, 2018, is reversed insofar as it: (1) confirms the jury’s verdict against the County on Flores’s claims for retaliation and failure to prevent discrimination or harassment; (2) awards damages in favor of Flores; and (3) awards attorney fees and costs in favor of Flores as the prevailing party. The matter is remanded to the trial court for entry of judgment in favor of the County on each of Flores’s claims against it, and for further consideration of assessing costs and attorney fees (if any) in light of the new judgment. The County is entitled to its costs on appeal.” (Id. at p. 24.)
On April 16, 2020, the remittitur was filed.
On April 29, 2020, Defendants filed a judgment after reversal.
On May 5, 2020, Defendants filed a memorandum of costs on appeal and memorandum of costs (summary).
On May 18, 2020, Plaintiff filed the instant motion to tax costs.
On July 27, 2020, the Court issued the following judgment after reversal:
“Plaintiff Ana Flores shall take nothing by this action, and that judgment is hereby entered in favor of the Defendants County of Los Angeles and Cedric White, and against the Plaintiff Ana Flores. The Defendant County of Los Angeles shall recover costs (and if applicable attorney’s fees) from the Plaintiff Ana Flores, in the sum of $_____________________.”
I. Motion to Tax Costs in FEHA Actions
A. Relevant Law
“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).).
“Code of Civil Procedure section 1032, subdivision (b) , guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”’ (Williams v. China Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.)
The court in Williams addressed the fee shifting provision in FEHA, holding: “Government Code section 12965, subdivision (b) , provides for private actions to enforce the provisions of FEHA. It states in part: ‘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.”’ (Id. at p. 101.)
The California courts, in addressing awards of attorneys' fees under FEHA, have applied the standard for when a prevailing party should be awarded fees under the U.S. Supreme Court holding in Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412 (“Christianburg”). (See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (“Cummings”).) As the court held in Cummings that under Christianburg, “‘a prevailing plaintiff” ‘should ordinarily recover an attorney fee unless special circumstances would render such an award unjust.”’ [Citation.]” (Ibid.) However, “the court [in Christianburg] found the standard for awarding prevailing defendants attorney fees and costs should be entirely different. The standard ultimately adopted by the court, and supported by the legislative history, directed “such awards should be permitted ‘not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’ [Citation.]” (Ibid.)
The California Supreme Court more recently addressed the question of recovery of costs in a FEHA case. The Court found that FEHA's provision for recovery of fees and costs “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, supra, 61 Cal.4th at p. 105.) The Court concluded that “the Christiansburg standard applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties under Government Code section 12965(b). To reiterate, under 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.” (Id. at p. 115.)
The court in Cummings set forth the standard for determining when an action is “frivolous, meritless or vexations.” The court held: “‘[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 plaintiffs 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.’ [Citation.]” (Cummings, supra, 11 Cal.App.4th at p. 1387.)
The court in Cummings held further:
“In applying these criteria, it is important that a district court resist 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.” (Cummings, supra, 11 Cal.App.4th at p. 1388.)
Plaintiff moves “for an order taxing the costs sought by Defendant County of Los Angeles Probation Department in its (1) Memorandum of Costs Following Trial in the amount of $29,578.01 and its (2) Memorandum of Costs Following Appeal in the amount of $7,700.69, both of which were submitted by the County of Los Angeles on May 5, 2020.” (Motion, p. 2:5-8.)
1. Motion to Tax Costs Incurred in the Trial Court
Plaintiff argues that “Defendant County of Los Angeles is not entitled to recover its costs in this FEHA action per Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 1010, 115 and Government Code § 12965, subd. (b) (denying costs to a prevailing defendant in a FEHA case unless the action was found to be frivolous.” (Id. at p. 2:9-13.) Plaintiff maintains that her “action cannot reasonably be argued to have been frivolous under the circumstances and Defendant County is not entitled to recover its costs.” (Id. at p. 2:14-15.)
Plaintiff asserts that she won at trial when a jury returned a verdict in her favor on multiple FEHA claims against Defendant County of Los Angeles,” and “also prevailed against Defendant County’s motion for nonsuit during trial and the County’s post-trial Motions for Judgment Notwithstanding the Verdict.” (Id. at p. 3:9-12.) However, Plaintiff explains, “in a 2-1, split-decision, the Court of Appeal reversed the jury’s verdict in favor of Plaintiff.” (Id. at p. 3:12-13.) Plaintiff argues that “In light of the procedural history of this action, including Plaintiff’s trial victory, motion victories, Plaintiff’s claims cannot be reasonably interpreted as ‘frivolous’ under any standard and costs may not be awarded to the County.” (Id. at p. 8:8-10.)
Defendant argues that Plaintiff’s case was frivolous, meritless or groundless. (Opp., p. 4:25-26.) Defendant maintains that “the allegations of harassment against Mr. White were so frivolous, meritless and groundless, the jury took no time in rendering its verdict for Mr. White and the County on the harassment claim.” (Id. at p. 5:23-25.) Defendant argues that it “has maintained Flores’ case is meritless as shown by its use of every available procedural avenue.” (Id. at p. 5:26-27.) Defendant asserts that “during trial, Defendant made several motions to establish the meritless nature of this case” by its filing of the Motion for Nonsuit and Judgment Notwithstanding the Verdict “on the basis that the Plaintiff had not provided sufficient facts to seek punitive damages against White.” (Id. at pp. 5:28-6:3.)
In reply, Plaintiff first argues that “despite what Defendant argues in their [sic] opposition papers, the trial court is bound by the FEHA cost provision and cannot impose costs against Plaintiff absent a finding that Plaintiff pursued a frivolous case against Defendant.” (Reply, p. 3:14-16.) Second, Plaintiff argues that “there has never been a jury determination that Ms. Flores’ case was frivolous.” (Id. at p. 3:26-27.) Plaintiff maintains that “simply because Plaintiff’s victory at the trial court level was reversed or that she did not succeed on every claim does not deem such claims frivolous.” (Id. at p. 4:6-8.)
The Court must determine if Defendant, as the prevailing party, is entitled to recover costs pursuant to the Government Code section 12965, subdivision (b) and case law analyzing this provision. (The Court notes that Plaintiff’s argument, that that “there has never been a jury determination that Ms. Flores’ case was frivolous,” is at best irrelevant. A jury is asked to determine the prevailing party; it is not asked to determine if a case if frivolous. Rather, it is entrusted to the Court, in a motion such as the one at issue today, to determine if a FEHA case was frivolous.
By spending a significant amount of time reiterating why the jury’s findings at trial would indicate that the action was frivolous, Defendant seeks to have this Court engage in the same “post hoc reasoning” the Court in Christianburg explicitly warned against. Defendant requests that the Court impermissibly conclude that, because Plaintiff did not ultimately prevail, her action must have been unreasonable or without foundation. Defendant has failed to meet the heightened standard that would entitle it to an award of costs.
The Court finds that Plaintiff’s action was not “unreasonable, frivolous, meritless or vexatious.” Plaintiff won in the trial court. The Court of Appeal overturned in a split 2-1 decision. The Court of Appeal did not find, or even imply, that the case was frivolous. Further, the fact that one of the three appellate justices hearing the case believed that Plaintiff should have prevailed milit`ates against any finding that the underlying case was frivolous.
This Court has no trouble finding that Plaintiff’s action was not unreasonable, frivolous, meritless, or vexatious.
Plaintiff’s motion to tax costs is GRANTED as to the costs incurred in the trial court.
2. Motion to Tax Costs Incurred in the Appellate Court
i. Defendant is Entitled to Seek Costs on Appeal
Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 454-456.) Decisions of every division of the District Courts of Appeal are binding upon all the Superior Courts. (Ibid.)
Plaintiff also requests that the Court tax all of the costs incurred on appeal. (Motion, p. 2:7-8.)
Defendant County of Los Angeles argues that “the trial court has no discretion to deny the County’s costs on appeal” because the Court of Appeal “expressly ordered that the County is entitled to costs on appeal.” (Opp., p. 4:18-21.)
This Court is bound by the appellate court decision that states: “The County is entitled to its costs on appeal.” (Appellate Opinion, p. 24.) Defendant County of Los Angeles is entitled to seek costs incurred in the appellate court.
ii. Reasonableness of Defendant’s Costs on Appeal
During the hearing on a motion to tax costs, “the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)
“[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f 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 [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]
The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Nelson, 72 Cal.App.4th at p. 131.)
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. (1993) 19 Cal.App.4th 761, 774.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
Plaintiff argues that Defendant’s costs on appeal should not be awarded because Defendant “has not provided a single invoice to support any of the costs it allegedly incurred and has not provided any objective evidence supporting the costs incurred.” (Motion, p. 8:22-24.)
In opposition, Defendant argues that “all of the reasonable costs included in trial cost memorandum and in the appellate cost memorandum are proper charges on their face.” (Opp., p. 8:8-9.)
For costs incurred on appeal, Defendant seeks $775.00 in filing fees and $6,925.69 in fees incurred for the preparation of the reporter’s transcript. (Memorandum of Costs on Appeal, ¶¶ 1, 3.) Defendant only submits the memorandum of costs and does not attach any invoices to the memorandum. In connection with their opposition, Defendant did not submit any supporting documentation for these costs that were put in issue by Plaintiff. (See Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1267 [“if the costs have been put in issue via a motion to tax costs . . . supporting documentation [must] be submitted.”])
a. Fees for Reporter’s Transcript
Despite the fact that this issue was raised in Plaintiff’s Motion to Tax Costs, Defendant chose not to submit any documentation whatsoever supporting its request for $6,925.69 in fees incurred for the preparation of the reporter’s transcript whatsoever. Instead, Defendant states:
“The County is extremely careful, at all times, when expending tax payer dollars and each decision to incur costs is not taken lightly. Each and every item on the Cost Memoranda was necessary in defending against this frivolous lawsuit and each item is clearly proper.” (Opposition, p. 8:9-12.)
This is both unsubstantiated argument and hearsay. (Cf., e.g.,
Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim. . . . Argument of counsel is not evidence.”]; Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [“the arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.”])
Because Defendant did not meet its burden to demonstrate support for the reporter’s transcript costs that were put in issue, the Court denies Defendant’s request for costs on appeal as the Court cannot determine if these specific costs were necessary or reasonable.
b. Appellate Filing Fees
Normally, the Court would apply the above analysis to the other fees requested by Defendant County. However, as Defendant County argued during oral argument, Government Code sections 6103 and 6103.5 require a different analysis.
Under Government Code section 6103,
“Neither the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in his or her official capacity on behalf of the state, or any county, city, district, or other political subdivision, shall pay or deposit any fee for the filing of any document or paper, for the performance of any official service, or for the filing of any stipulation or agreement that may constitute an appearance in any court by any other party to the stipulation or agreement. (Gov’t Code § 6103(a).)
Government Code section 6103.5 states:
“Whenever a judgment is recovered by a public agency named in Section 6103 , either as plaintiff or petitioner or as defendant or respondent, . . . which under the provisions of Section 6103 no fee for any official service rendered by the clerk of the court, including, but not limited to, the services of filing, certifying, and preparing transcripts, . . . the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee, . . . which would have been paid but for Section 6103 , designating it as such.” (Gov’t Code § 6103.5(a).)
Read together, these two statutes require the Court to grant to the government its filing fee of $775.00 – even though the Defendant County did not actually incur these costs.
This Court would normally find that the Williams standard and Government Code § 12965, subd. (b) – being more specific laws affecting FEHA cases such as this one – would take precedence over Government Code §6103.5. However, the Court of Appeal, in its decision, specifically held that “[t]he County is entitled to its costs on appeal.” (Appellate Opinion, p. 24.) This becomes the law of the case, and this Court is bound to follow the Court of Appeal’s decision, even if it believes it to be wrong.
There is no question that the County is deemed to have incurred $775.00 in appellate filing fees. Being bound by the Court of Appeal’s ruling, this Court DENIES Plaintiff’s motion to tax the appellate filing fee of $775.00.
The Court GRANTS Plaintiff’s motion to tax costs the reporter’s fees incurred on appeal, but DENIES Plaintiff’s motion to tax the filing fees on appeal.
The Court GRANTS Plaintiff’s motion to tax Defendant’s costs in their entirety, with the exception of Defendant’s appellate filing fees of $775.00.