This case was last updated from Los Angeles County Superior Courts on 10/13/2018 at 06:03:02 (UTC).

Janice D Parker Vs Smg Facility Services Llc Et Al

Case Summary

On 05/31/2018 a Labor - Wrongful Termination case was filed by Janice D Parker against Smg Facility Services Llc in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8439

  • Filing Date:

    05/31/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Dennis J. Landin

 

Party Details

Petitioner and Plaintiff

Parker Janice D.

Defendants and Respondents

Smg Facility Services Llc

Smg/Long Beach Convention & Entertainment

Moshay Hubert

Does 1-100

 

Court Documents

Notice of Ruling

1/15/2020: Notice of Ruling

Opposition - OPPOSITION DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS

12/27/2019: Opposition - OPPOSITION DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

10/10/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Order - ORDER PROPOSED ORDER RE DEFENDANT'S EX PARTE APPLICATION

10/7/2019: Order - ORDER PROPOSED ORDER RE DEFENDANT'S EX PARTE APPLICATION

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/27/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Declaration - DECLARATION OF L.G. KRIEGER ISO PLAINTIFF'S OPP TO DEF'S MSJ

9/13/2019: Declaration - DECLARATION OF L.G. KRIEGER ISO PLAINTIFF'S OPP TO DEF'S MSJ

Reply - REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

9/20/2019: Reply - REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DEPOSITION OF PLAINTIFF) OF 09/13/2019

9/13/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DEPOSITION OF PLAINTIFF) OF 09/13/2019

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DEPOSITION OF PLAINTIFF)

9/13/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DEPOSITION OF PLAINTIFF)

Opposition - OPPOSITION OF PL'S TO MOTION TO COMPEL PL'S ATTENDANCE AT CON'T DEPO

8/30/2019: Opposition - OPPOSITION OF PL'S TO MOTION TO COMPEL PL'S ATTENDANCE AT CON'T DEPO

Brief - BRIEF APPENDIX OF EVIDENCE IN SUPPORT OF MOTION

8/14/2019: Brief - BRIEF APPENDIX OF EVIDENCE IN SUPPORT OF MOTION

Order - ORDER RE PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES-GENERAL, FORM INTERROGATORIES-EMPLOYMENT, AND REQUESTS FOR ADMISSION

6/21/2019: Order - ORDER RE PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES-GENERAL, FORM INTERROGATORIES-EMPLOYMENT, AND REQUESTS FOR ADMISSION

Separate Statement

5/6/2019: Separate Statement

Motion to Compel Further Discovery Responses - MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FORM INTERROGATORIES-EMPLOYMENT LAW; MONETARY SANCTIONS (3730.50)

5/6/2019: Motion to Compel Further Discovery Responses - MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FORM INTERROGATORIES-EMPLOYMENT LAW; MONETARY SANCTIONS (3730.50)

Minute Order - Minute Order (Court Order)

1/14/2019: Minute Order - Minute Order (Court Order)

Minute Order - Minute Order (Case Management Conference)

11/13/2018: Minute Order - Minute Order (Case Management Conference)

CASE MANAGEMENT STATEMENT -

9/19/2018: CASE MANAGEMENT STATEMENT -

NOTICE OF INTENT TO APPEAR BY TELEPHONE

9/19/2018: NOTICE OF INTENT TO APPEAR BY TELEPHONE

99 More Documents Available

 

Docket Entries

  • 02/11/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Jury Trial - Held

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  • 02/11/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Final Status Conference - Held

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  • 02/11/2020
  • DocketMinute Order ( (Jury Trial; Final Status Conference)); Filed by Clerk

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  • 02/11/2020
  • DocketOrder - Dismissal; Filed by Clerk

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  • 02/07/2020
  • DocketNotice of Change of Address or Other Contact Information; Filed by William Owen Kampf (Attorney)

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  • 01/30/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Final Status Conference - Not Held - Trailed

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  • 01/28/2020
  • DocketNotice of Ruling ( RE: (1) DEFENDANT HUBERT MOSHAY'S MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO); Filed by Hubert Moshay (Defendant)

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  • 01/27/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 01/27/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Compel Further Discovery Responses - Held - Motion Granted

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  • 01/27/2020
  • DocketMinute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery...)); Filed by Clerk

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139 More Docket Entries
  • 06/06/2018
  • Docketat 08:30 AM in Department 4; Non-Appearance Case Review (Non-Appearance (Case Review); Transferred to different departmnt) -

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  • 06/06/2018
  • DocketMinute order entered: 2018-06-06 00:00:00; Filed by Clerk

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  • 06/06/2018
  • DocketMinute Order

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  • 05/31/2018
  • DocketRequest-Waive Court Fees

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  • 05/31/2018
  • DocketSUMMONS

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  • 05/31/2018
  • DocketComplaint; Filed by Janice D. Parker (Plaintiff)

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  • 05/31/2018
  • DocketCOMPLAINT FOR DAMAGES 1. SEXUAL HARASSMENT IN VIOLATION OF FEHA (GOV'T. CODE 12940(J)); ETC

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  • 05/31/2018
  • DocketRequest to Waive Court Fees

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  • 05/31/2018
  • DocketRequest to Waive Court Fees; Filed by Plaintiff/Petitioner

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  • 05/31/2018
  • DocketORDER ON COURT FEE WAIVER

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Tentative Rulings

Case Number: BC708439    Hearing Date: January 27, 2020    Dept: 32

janice d. parker,

Plaintiff,

v.

SMG FACILITY SERVICES, LLC, et al.

Defendants.

Case No.: BC708439

Hearing Date: January 27, 2020

[TENTATIVE] order RE:

(1) motion to compel plaintiff’s responses to requests for production of documents, set two

(2) motion to compel plaintiff’s responses to requests for admission, set two

BACKGROUND

Plaintiff Janice D. Parker (“Plaintiff”) commenced this action against Defendants SMG Facility Services, LLC (“SMG Facility”); SMG / Long Beach Convention & Entertainment Center (“SMG”); and Hubert Moshay (“Moshay”) on May 31, 2018. The Complaint asserts causes of action for (1) sexual harassment in violation of FEHA, (2) sex discrimination in violation of FEHA, (3) race discrimination in violation of FEHA, (4) retaliation for opposing discrimination and harassment, (5) failure to prevent discrimination and harassment, (6) wrongful constructive discharge in violation of public policy, (7) intentional infliction of emotional distress, (8) sexual assault and battery in violation of Civil Code section 1708.5, and (9) assault and battery.

DISCUSSION

Defendant Moshay moves to compel Plaintiff to provide responses to his Requests for Production of Documents (“RPD”), Set Two, and Requests for Admission (“RFA”), Set Two.

Moshay submits the following evidence. On November 26, 2019, Moshay served Plaintiff with RPD, Set Two, and RFA, Set Two, by overnight mail. (Kampf Decl. ¶ 6, Ex. B.) Plaintiff’s deadline to respond to this written discovery was December 30, 2019. (CCP §§ 1013(c), 2031.260(a), 2033.250(a).) To date, Moshay has not received responses to this written discovery. (Kampf Decl. ¶ 8.)

Moshay has shown that (1) he validly served this written discovery on Plaintiff, (2) Plaintiff’s time to respond has expired, and (3) Plaintiff failed to provide responses to this discovery. Accordingly, Moshay’s motions to compel are GRANTED. (CCP §§ 2031.300(a), 2033.280(a).)

Moshay requests monetary sanctions of $1,410 in connection with his RPD motion and $1,635 in connection with his RFA motion. Moshay is entitled to monetary sanctions (CCP §§ 2031.300(c), 2033.280(c)), but the amount requested is unreasonable. Moshay is awarded monetary sanctions in the total amount of $1,020 ($450 x 2 hours + $120 in filing fees).

CONCLUSION

Moshay’s motion to compel Plaintiff to provide objection-free responses to his RPD, Set Two, is GRANTED. Plaintiff is to serve responses to RPD, Set Two, within 30 days’ notice of this court order.

Moshay’s motion to compel Plaintiff to provide responses to his RFA, Set Two, is GRANTED. The requests in Moshay’s RFA, Set Two, are hereby deemed admitted. (CCP § 2033.280(b).)

Moshay’s request for monetary sanctions against Plaintiff is GRANTED in the total amount of $1,020. Plaintiff is to pay these monetary sanctions within 30 days’ notice of this court order.

Case Number: BC708439    Hearing Date: January 13, 2020    Dept: 32

janice d. parker,

Plaintiff,

v.

SMG FACILITY SERVICES, LLC, et al.

Defendants.

Case No.: BC708439

Hearing Date: January 13, 2020

[TENTATIVE] order RE:

(1) motion to compel plaintiff’s attendance at a continued deposition

(2) motion to compel plaintiff’s mental examination

BACKGROUND

Plaintiff Janice D. Parker (“Plaintiff”) commenced this action against Defendants SMG Facility Services, LLC (“SMG Facility”); SMG / Long Beach Convention & Entertainment Center (“SMG”); and Hubert Moshay (“Moshay”) on May 31, 2018. The Complaint asserts causes of action for (1) sexual harassment in violation of FEHA, (2) sex discrimination in violation of FEHA, (3) race discrimination in violation of FEHA, (4) retaliation for opposing discrimination and harassment, (5) failure to prevent discrimination and harassment, (6) wrongful constructive discharge in violation of public policy, (7) intentional infliction of emotional distress, (8) sexual assault and battery in violation of Civil Code section 1708.5, and (9) assault and battery. The Complaint alleges in pertinent part as follows.

Plaintiff, a black woman, began her employment with SMG Defendants in March 2014. Plaintiff worked in their Housekeeping Department as a full-time custodial worker. Plaintiff reported to the Housekeeping Department’s supervisor, Defendant Moshay. Moshay and Plaintiff worked the graveyard shift.

During Plaintiff’s employment with SMG Defendants, Moshay abused his position of power by making repeated unwanted sexual advances toward Plaintiff, touching her at work, and telling her to have sex with him if she valued her job. Plaintiff eventually succumbed to Moshay’s advances. In December 2017, Plaintiff began to more adamantly refuse Moshay’s demands. When Moshay began retaliating, Plaintiff broke down and told Moshay’s superior, Anthony Ary (“Ary”), about the harassment and abuse. Ary directed Plaintiff to report the matter to Human Resources, which she did. Instead of disciplining Moshay, SMG Defendants retaliated against Plaintiff by reducing her work schedule and treating her differently.

In January 2018, Plaintiff developed osteoarthritis in her right knee forcing her to take off work for approximately six months due to disability. It is unlikely that Plaintiff will return to work because of the stress and anxiety caused by the incident.

DISCUSSION

Motion to Compel Continued Deposition

Defendants SMG and Moshay (hereinafter, “Defendants”) move to compel Plaintiff to appear for a continued deposition concerning her “termination letter.”

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (CCP § 2025.610(a).) However, notwithstanding this restriction, “for good cause shown, the court may grant leave to take a subsequent deposition.” (CCP § 2025.610(b).)

Defendants persuasively argue that good cause exists to order Plaintiff to appear for a subsequent deposition because, on September 10, 2019, Plaintiff argued for the first time that she had resigned from her employment and presented a termination letter to that effect. (Kroll Decl. ¶ 5.) Defendants’ motion to compel Plaintiff’s subsequent deposition is GRANTED.

Relying on CCP section 2023.030, Defendants request monetary sanctions compensating them for the expenses that they incurred in bringing this motion. However, CCP section 2023.030 “authorizes a court to impose the specified type of sanctions, ‘[t]o the extent authorized by the chapter governing any particular discovery method or any provision of this title.’ ” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) “This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.” (Ibid.) CCP section 2025.610, the statute governing this motion, does not provide for monetary sanctions. Thus, Defendants are not entitled to monetary sanctions for successfully bringing this motion.

Motion to Compel Mental Examination

Defendants move to compel Plaintiff to submit to a mental examination.

If a party desires to obtain discovery by a mental examination, the party shall obtain leave of court. (CCP § 2032.310(a).) The motion shall specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and the specialty, if any, of the person who will perform the examination. (CCP § 2032.310(b).) The motion shall be accompanied by a meet and confer declaration under section 2016.040. (Ibid.)

To obtain leave of court, the moving party must show that (1) the mental condition of the examinee is in controversy (CCP § 2032.020(a)) and (2) there is good cause for the mental examination (CCP § 2032.320(a)).

“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) In the Complaint, Plaintiff alleges that Defendants’ conduct caused her to suffer emotional distress damages. (Compl. ¶ 43.) Plaintiff elaborates that she “has suffered and will continue to suffer severe emotional distress including substantial pain and suffering, extreme and severe mental anguish, anxiety, embarrassment, humiliation, severe headaches, insomnia, depression, anger, loss of self-esteem, and attendant physical injuries and conditions.” (Compl. ¶ 85.) These allegations have placed Plaintiff’s mental condition in controversy in this action.

Good cause generally requires a showing of (1) relevancy to the subject matter and (2) specific facts justifying discovery. (Vinson, supra, 43 Cal.3d at 840; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:1557.) The mental examination is relevant to this action because Plaintiff is pursuing emotional distress damages and an IIED claim. Specific facts justifying this mental examination include Plaintiff’s discovery responses which confirm that Plaintiff believes that she is still experiencing emotional distress stemming from Defendants’ conduct. (Kroll Decl. Exs. 1-2.) Good cause supports Defendants’ demand to examine Plaintiff’s medical condition.

Defendants propose that the medical examination be conducted by David N. Glaser (“Glaser”), M.D., a licensed medical doctor who has a board certification in Psychiatry and Neurology. (Kroll Decl. ¶ 9, Ex. 4.) Defendants propose that the examination take place on January 27, 2020, at 9:00 a.m., at Glaser’s office located at Glaser Forensic Group, Warner Corporate Center, 21300 Victory Boulevard, Suite 250, Woodland Hills, CA 91367. (Ibid.) Defendants state that the examination will last approximately eight hours, include meal and rest breaks, and consist of an interview with Plaintiff, a formal mental status examination, and the administration of various tests such as the Minnesota Multiphasic Personal Inventory II and Mini Mental State Exam. (Kroll Decl. ¶ 10.) The Court finds the conditions of this proposed mental examination to be acceptable.

Defendants’ motion to compel Plaintiff to submit to a mental examination is GRANTED. The conditions of the mental examination will be those articulated ante.

Case Number: BC708439    Hearing Date: January 10, 2020    Dept: 32

janice d. parker,

Plaintiff,

v.

SMG FACILITY SERVICES, LLC, et al.

Defendants.

Case No.: BC708439

Hearing Date: January 10, 2020

[TENTATIVE] order RE:

motion to tax costs

BACKGROUND

Plaintiff Janice D. Parker (“Plaintiff”) commenced this action against Defendant SMG Facility Services, LLC (“SMG Facility”); SMG / Long Beach Convention & Entertainment Center (“SMG”); and Hubert Moshay (“Moshay”) on May 31, 2018. The Complaint asserts causes of action for (1) sexual harassment in violation of FEHA, (2) sex discrimination in violation of FEHA, (3) race discrimination in violation of FEHA, (4) retaliation for opposing discrimination and harassment, (5) failure to prevent discrimination and harassment, (6) wrongful constructive discharge in violation of public policy, (7) intentional infliction of emotional distress, (8) sexual assault and battery in violation of Civil Code section 1708.5, and (9) assault and battery.

On August 29, 2019, Plaintiff dismissed SMG Facility as a defendant to this action.

LEGAL STANDARD

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. (CCP § 1032(b).)

The statutory scheme for cost recovery establishes three categories of trial preparation expenses: (1) one category allowable as a matter of right to the prevailing party (CCP § 1033.5(a)), (2) one category disallowable unless expressly authorized elsewhere by law (CCP § 1033.5(b)), and (3) one category allowable or disallowable in the court’s discretion (CCP § 1033.5(c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and (2) reasonable in amount. (CCP § 1033.5(c)(2), (3).)

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) “ ‘If so, the burden is on the objecting party to show the costs are unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Ibid.)

DISCUSSION

Plaintiff moves to tax the Memorandum of Costs (“MOC”) filed by SMG Facility.

Plaintiff argues that all costs incurred by SMG Facility in connection with and after its filing of a motion for summary judgment are nonrecoverable because Plaintiff would have dismissed SMG Facility if SMG Facility had complied with her request for proof. In support, Plaintiff notes that on March 19, 2019, Defendant’s counsel Steven Kroll (“Kroll”) advised Plaintiff’s counsel Laura Birnbaum (“Birnbaum”) that she “should dismiss SMG Facility” because SMG Facility “is an improper defendant to this action. It was not and is not [Plaintiff’s] employer.” (Birnbaum Decl. Ex. 1.) In response, Birnbaum asked whether Kroll could provide proof showing that SMG Facility was not Plaintiff’s employer. (Ibid.) Kroll ignored the request. (Birnbaum Decl. ¶ 3.) A few months later, on July 12, 2019, SMG Facility served Plaintiff with its motion for summary judgment. In that motion, SMG Facility argued, inter alia, that claims against SMG Facility failed because Plaintiff failed to file a DFEH complaint and obtain a right-to-sue notice against SMG Facility and because SMG Facility was not identified as Plaintiff’s employer on her Form W-2s. On August 29, 2019, Plaintiff dismissed SMG Facility as a defendant to this action.

Plaintiff’s argument is unpersuasive for two reasons. First, Plaintiff presumes that failing to respond to this informal request precludes these costs from being deemed reasonably necessary. This presumption is unfounded. SMG Facility did not need to apprise Plaintiff of the specific grounds for its defense outside of its answer and appropriate discovery; SMG Facility could reasonably preserve these grounds for its summary judgment motion or trial. Second, Plaintiff has failed to substantiate this argument’s speculative premise, namely, that this summary judgment motion could have been avoided had SMG Facility complied with Birnbaum’s informal request. Birnbarum’s insistence that she would have dismissed SMG Facility if Kroll had “simply communicated with [her]” is not to the contrary. (Birnbaum Decl. ¶ 4.) Birnbaum needed to specify what precise evidence — e.g., the DFEH filing or the Form W-2s — would have convinced her to dismiss SMG Facility, and if and why that evidence was not already reasonably known to her.[1] Without this critical evidence, the Court cannot reasonably deduce that Kroll’s response would have persuaded Birnbaum to file the request for dismissal and avoid the summary judgment motion.

Plaintiff also argues that the Court should exercise its discretion to limit the costs recoverable by SMG Facility because SMG and SMG Facility were united in interest and share the same counsel. Plaintiff cites Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 272: “In those instances in which several defendants are united in interest and/or join in making the same defenses in the same answer, the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the trial court.” However, as Defendants note, this holding in Smith was predicated on a prior version of CCP section 1032. “The 1986 repeal and reenactment of section 1032 substantially changed the statutory framework for determining which parties are entitled to recover costs as a matter of right. The new statute provides no exception to a party’s right to recover costs when the party satisfies any of the four statutory definitions of a prevailing party. In doing so, the new statute eliminated any basis to apply the unity of interest exception found in the repealed version. Consequently, we conclude the Legislature intended to eliminate the unity of interest exception as a basis for denying costs to a prevailing defendant who otherwise is entitled to recover costs as a matter of right.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 741-42.) Pursuant to Charton, the unity of interest exception no longer exists and cannot be utilized as a basis for taxing the MOC.

CONCLUSION

Plaintiff’s motion to tax the MOC is DENIED.


[1] One affirmative defense in SMG Facility’s Answer was that Plaintiff failed to exhaust her administrative remedies.