This case was last updated from Los Angeles County Superior Courts on 07/27/2019 at 01:49:37 (UTC).

MICHAEL J HOLMES VS BEHAVIOR FRONTIERS LLC

Case Summary

On 01/09/2018 a Labor - Wrongful Termination case was filed by MICHAEL J HOLMES against BEHAVIOR FRONTIERS 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:

    ****9599

  • Filing Date:

    01/09/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

GAIL FEUER

 

Party Details

Plaintiff, Petitioner and Appellant

HOLMES MICHAEL J.

Defendants and Respondents

DOES 1 TO 10

BEHAVIOR FRONTIERS LLC

 

Court Documents

STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

6/25/2018: STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

PROOF OF SERVICE SUMMONS

6/25/2018: PROOF OF SERVICE SUMMONS

RESPONSE TO THE DEFENDANT JULY 12TH, 2018 NOTICE

7/16/2018: RESPONSE TO THE DEFENDANT JULY 12TH, 2018 NOTICE

Proof of Service by Mail

8/15/2018: Proof of Service by Mail

RESPONSE TO THE MOTION TO COMPEL DISCOVERY

9/5/2018: RESPONSE TO THE MOTION TO COMPEL DISCOVERY

Proof of Service

9/17/2018: Proof of Service

Other -

10/22/2018: Other -

Ex Parte Application

10/25/2018: Ex Parte Application

Response

11/13/2018: Response

Reply

12/7/2018: Reply

Minute Order

12/11/2018: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

12/12/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Default

12/31/2018: Notice of Default

Notice: Waiver of Court Fees (Superior Court)

1/2/2019: Notice: Waiver of Court Fees (Superior Court)

Proposed Statement on Appeal Submitted APP-104 CR-135/143

2/15/2019: Proposed Statement on Appeal Submitted APP-104 CR-135/143

STATEMENT OF DAMAGES

2/13/2018: STATEMENT OF DAMAGES

Proof of Service

2/13/2018: Proof of Service

DECLARATION

2/13/2018: DECLARATION

180 More Documents Available

 

Docket Entries

  • 06/11/2019
  • at 08:30 AM in Department 78; Hearing on Motion to Strike (Memorandum Of Cost) - Not Held - Rescheduled by Party

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  • 06/10/2019
  • at 08:30 AM in Department 78; Hearing on Motion to Tax Costs - Not Held - Rescheduled by Party

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  • 06/03/2019
  • Clerk's Notice of Non-Compliance of Default on Appeal; Filed by Clerk

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  • 05/29/2019
  • Declaration ( of Kristen E. Spada In Support of Defendant Behavior Frontiers, LLC's Opposition to Plaintiff's Motion to Strike); Filed by Behavior Frontiers, LLC (Defendant)

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  • 05/29/2019
  • Opposition (Defendant Behavior Frontiers, LLC's Opposition to Plaintiff's Motion to Strike); Filed by Behavior Frontiers, LLC (Defendant)

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  • 05/28/2019
  • Declaration (of Kristen E. Spada In Support Of Defendant Behavior Frontiers, LLC's Opposition to Plaintiff's Motion to Tax Costs); Filed by Behavior Frontiers, LLC (Defendant)

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  • 05/28/2019
  • Opposition (Defendant Behavior Frontiers, LLC's Opposition to Plaintiff's Motion to Tax Costs); Filed by Behavior Frontiers, LLC (Defendant)

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  • 05/03/2019
  • at 08:30 AM in Department 78; Hearing on Motion for Protective Order (RE DEPOSITIONS SOUGHT BY PLTF) - Not Held - Vacated by Court

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  • 05/03/2019
  • Notice of Default; Filed by Clerk

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  • 04/03/2019
  • Appeal - Remittitur - Appeal Dismissed (B294233); Filed by Clerk

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270 More Docket Entries
  • 01/30/2018
  • Notice of Related Case; Filed by Michael J. Holmes (Plaintiff)

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  • 01/30/2018
  • PLAINTIFF RESPONSE TO DEFENDANTS

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  • 01/24/2018
  • Notice of Related Case; Filed by Behavior Frontiers, LLC (Defendant)

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  • 01/24/2018
  • Notice of Related Cases

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  • 01/10/2018
  • PROOF OF SERVICE SUMMONS

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  • 01/10/2018
  • Proof-Service/Summons; Filed by Michael J. Holmes (Plaintiff)

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  • 01/09/2018
  • SUMMONS

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  • 01/09/2018
  • ORDER ON COURT FEE WAIVER

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  • 01/09/2018
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 01/09/2018
  • Complaint; Filed by Michael J. Holmes (Plaintiff)

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Tentative Rulings

Case Number: BC689599    Hearing Date: October 31, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MICHAEL J. HOLMES.;

Plaintiff,

vs.

BEHAVIOR FRONTIERS, LLC, et al.;

Defendants.

Case No.:

BC689599

Hearing Date:

October 31, 2019

[TENTATIVE] RULING RE:

Plaintiff Michael j. holmes’ Motion to Tax Costs and motion to strike costs.

The Motion to Tax Costs is therefore GRANTED as to the $2,703.85 in “Other” costs. The Motion to Strike Costs is DENIED.

FACTUAL BACKGROUND

This is a disability discrimination case. The Complaint alleges as follows. Plaintiff Michael J. Holmes (“Holmes”) worked for Defendant Behavior Frontiers, LLC (“BF”). (Complaint at p. 4.) Holmes went off work because of a disability, but was not allowed to return with a reasonable accommodation and was terminated. (Complaint at pp. 4–6.)

PROCEDURAL HISTORY

Holmes filed the Complaint on January 9, 2018 alleging two causes of action:

1. FEHA Discrimination (disability)

  1. FEHA Discrimination (failure to accommodate)

    This court found that the present case was related to another case, BC657230, Holmes v. Behavior Frontiers, LLC, on February 8, 2018.

    BF filed an Answer on February 8, 2018.

    On October 29, 2018, this Court denied Holmes’s Motion for Summary Judgment, but declared it subject to reconsideration on December 12, 2018, because Holmes had re-calendared the motion for that date without notice to the court or parties.

    BF filed a Motion for Summary Judgment on October 3, 2018.

    Judgment in favor of BH was entered on January 11, 2019.

BH filed a Memorandum of Costs on January 28, 2019.

Holmes filed the present Motion to Tax Costs and Motion to Strike Costs on February 11, 2019.

BH filed an Opposition to the Motion to Tax Costs on May 28, 2019 and an Opposition to the Motion to Strike Costs on May 29, 2019.

Discussion

  1. MOTION TO TAX COSTS

“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. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.app.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.)

BH filed a Memorandum of Costs, seeking total costs in the amount of $7,439.00, comprised of $1,080.00 in filing fees, $3,655.75 in deposition costs, and $2,703.85 in Other costs (including messenger fees and transportation/parking fees).

Holmes moves to alternately strike the entirety of Spine Center’s Memorandum of Costs or to tax requested costs. (Motion at pp. 1-3.) The Motion to Tax Costs and the Motion to Strike, while filed separately, are identical motions, and the Court will cite to only one.

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (CRC Rule 3.1700, subd. (a)(1).)

Holmes argues that the memorandum of costs should be “denied” on the basis that it was filed late pursuant to Rule 3.1700. Here, judgment was entered on January 11, 2019, and BH’s Notice of Entry of Judgment was filed and served upon Holmes on January 17, 2019. The memorandum of costs was filed on January 28, 2019. Because the only Notice of Entry bearing upon the pertinent judgment was filed and served by BH on January 17, 2019, within 15 days of the filing of the memorandum of costs, the costs memo is timely.

Holmes further argues that the memorandum of costs should be “denied” because BH’s attorney, Kristen Spada, was “not a part of this case until, on or around, September of 2018;” because the case is being appealed; because the Answer to the Complaint was filed by an attorney other than Kristen Spada; and because Kristen Spada has “filed documents with the court that she intentionally provided false/altered information that was used in a court hearings (sic), as a way to manipulate the courts (sic) decision on this case.” (Motion at p. 1.) Holmes further argues that he has filed a complaint against BH’s attorneys, Kristen Spada and Theresa Kading with the State Bar, and that he previously filed a complaint with the State Bar against Theresa Kading and Carmine Pearl (Spada’s predecessor) “for not following a court order and that matter may move to the supreme court.” (Motion at p. 2.) Lastly, Holmes argues that the costs memorandum does not state the hourly charges of the attorneys in preparing their documents. (Motion at pp. 2-3.)

In Opposition, BH argues that Holmes has not offered any authority for his arguments. BH contends that whether Spada worked on the case for its duration has no bearing on whether BH should recover its costs. BH further argues that Holmes has not provided authority for his contention that BH cannot recover its costs because an appeal is pending. Additionally, BH argues that Spada did not provide false information to the Court and that Spada has not been made aware by the State Bar of any complaints made against her by Holmes. Lastly, BH argues that Holmes is confusing costs with attorneys’ fees and confirms that BH is not seeking attorneys’ fees, thus that Holmes’ requested information is irrelevant.

The Court is not persuaded by Holmes’ arguments regarding BH’s attorneys, which are not relevant to the calculation of costs post-judgment. Here, BH is the prevailing party in this action and is entitled to recovery of costs as a matter of right. (Civ. Proc. § 1032, subd. (a)(4).) While Holmes is correct that a pending appeal automatically stays the awarding of routine costs (Chapala Management Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1546), Holmes does not have a pending appeal.

Holmes filed a Notice of Appeal on November 27, 2018, December 11, 2018, December 12, 2018, and again on December 20, 2018. However, the appeals were placed into default and ultimately dismissed. The November 28, 2018 appeal was dismissed by the Courts of Appeal of January 29, 2019 (January 29, 2019 Dismissal Order), and the remaining three appeals (combined under one appellate case number) were dismissed on July 5, 2019 on the grounds that they were taken from nonappealable orders. (July 5, 2019 Dismissal Order.) Accordingly, there is no pending appeal and Holmes’ argument for denying the costs memorandum is applicable.

Lastly, the Court agrees with BH that hourly rates and allocations are not required as BH is not seeking attorneys’ fees. However, the Court finds that BH has included in its costs memorandum costs which are not allowable pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(1). Costs are allowable for “[t]aking, video recording, and transcribing necessary depositions.” (Code Civ. Proc. § 1033.5, subd. (a)(3)(A).) Costs are further allowable for filing fees. (Code Civ. Proc. § 1033.5, subd. (a)(1).

However, while travel fees are recoverable for attending deposition, section 1033.5 does not provide for travel fees to attend hearings. Further, while service of process fees are recoverable, messenger fees for delivering documents to the court are not provided by section 1033.5. “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.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Here, BH has not provided any evidence supporting costs for messenger services and transportation/parking, or their necessity.

The Motion to Tax Costs is therefore GRANTED as to the $2,703.85 in “Other” costs. The Motion to Strike Costs is DENIED.

Defendant BH to give notice.

DATED: October 31, 2019 ________________________________

Hon. Robert S. Draper

Judge of the Superior Court