Lucy Bernal vs Ghitterman Ghitterman & Feld
Lucy Bernal vs Ghitterman Ghitterman & Feld
Case Number
20CV01448
Case Type
Hearing Date / Time
Mon, 08/05/2024 - 10:00
Nature of Proceedings
1) Motion: Attorney Fees; 2) Motion: Tax Costs
Tentative Ruling
Lucy Bernal v. Ghitterman, Ghitterman & Feld
Case No. 20CV01448
Hearing Date: August 5, 2024
HEARING: (1) Motion For Statutory Attorney’s Fees And Costs
(2) Motion To Strike Or Tax Costs
ATTORNEYS: For Plaintiff Lucy Bernal: Christina M. Coleman, Law Offices of Christina M. Coleman, APC
For Defendant Ghitterman, Ghitterman & Feld: Russell R. Ghitterman, Ghitterman, Ghitterman & Feld, Jonathan Fraser Light, Michael H. Brody, Kathleen M. Fellows, LightGabler LLP
TENTATIVE RULING:
(1) The motion of defendant Ghitterman, Ghitterman & Feld for statutory attorney fees and costs is denied.
(2) The motion of plaintiff Lucy Bernal to strike or tax costs is granted. The Memorandum Of Costs filed by defendant Ghitterman, Ghitterman & Feld on May 22, 2024, is ordered stricken from the Court’s records.
Background:
This is a wrongful termination action arising from the former employment of plaintiff Lucy Bernal (Bernal) with defendant Ghitterman, Ghitterman & Feld (GGF) as, among other things, a case worker. The complaint filed by Bernal on March 13, 2020, alleges causes of action for (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA); (2) retaliation in violation of FEHA, (3) failure to prevent discrimination and retaliation in violation of FEHA, (4) failure to provide reasonable accommodations in violation of FEHA, (5) failure to engage in a good faith interactive process in violation of FEHA, (6) declaratory relief, and (7) wrongful termination in violation of public policy.
GGF filed its answer to the complaint on May 7, 2020, generally denying its allegations and alleging seven affirmative defenses. On May 15, 2023, with leave of the Court, GGF filed an amended answer to the complaint also generally denying its allegations and asserting ten affirmative defenses.
Following the filing of motions for summary judgment or adjudication by the respective parties, each of which the Court denied, the matter proceeded to a jury trial which commenced on March 12 and concluded on March 27, 2024.
On May 8, 2024, a judgment following special verdict (the judgment) was entered, ordering that Bernal not recover anything on her complaint and that GGF is the prevailing party for all purposes.
On May 21, 2021, GGF filed a motion for an award of statutory attorney’s fees and costs pursuant to Government Code section 12965 and Code of Civil Procedure sections 998, 1032, and 2033.420 (the GGF motion).
On May 22, 2024, GGF filed a memorandum of costs (the cost memorandum), requesting $32,707.08 in total costs. On June 4, 2024, Bernal filed a motion to strike or tax costs set forth in the cost memorandum (the Bernal motion to strike).
The GGF motion is opposed by Bernal. The Bernal motion to strike is opposed by GGF.
Analysis:
(1) The Bernal Motion To Strike
For purposes of judicial efficiency considering the manner in which GGF has presented its arguments and evidence in support of its requests for an award of fees and costs under FEHA, codified in Government Code section 12900 et seq., and Code of Civil Procedure section 998 as further discussed herein, the Court will first determine the merits of the motion to strike notwithstanding that the GGF motion was filed first.
In the motion to strike, Bernal contends that the filing of the cost memorandum is not the proper procedure for a prevailing defendant such as GGF to claim costs in a FEHA case.
Generally, and “except as otherwise expressly provided by statute”, the prevailing party in an action is “as a matter of right” entitled to recover allowable costs. (Code Civ. Proc., § 1032, subd. (b); Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 555 (Neeble-Diamond).) Unless otherwise provided by statute, “the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129.) (Note: Undesignated code references herein shall be to the Code of Civil Procedure, unless otherwise indicated.)
“The established procedure for recovering the costs allowed under section 1032 is to file a cost memorandum, supported by a verified statement of counsel. [Citations.]” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 556.) “If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the defendant.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.) “On the other hand, 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.)
“A different rule, however, applies in FEHA cases.” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 556.) In civil actions brought under FEHA, “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.” (Gov. Code, § 12965, subd. (c)(6).)
Subdivision (c)(6) of Government Code section 12965 codifies the rule set forth by the Supreme Court of California in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams), which provides that “an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Williams, supra, 61 Cal.4th at pp. 99-100; Neeble-Diamond, supra, 99 Cal.App.5th at p. 557.) “Thus, when the defense prevails in a FEHA action, it has no automatic right to recover costs under section 1032; instead, it must move the court to make a discretionary award of such costs, based in part on a specific finding that the action was frivolous.” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 557.)
The parties here do not dispute that the causes of action alleged in the complaint are in pertinent part based on FEHA. In its opposition to the motion to strike, GGF does not contend that it has filed a procedurally appropriate motion for an award of costs under FEHA. Rather, GGF asserts that it has established its entitlement to recover costs under FEHA in the GGF motion. As further detailed above, the GGF motion was filed before the cost memorandum.
A notice of a motion “must be in writing” and “must state … the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Therefore, “[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [also stating that a trial court is not required to consider grounds for relief not raised or sought by the moving party].)
In the notice of the GGF motion, GGF generally asserts that it seeks an award of costs under the statutes identified in the notice which include, as further discussed above, Government Code section 12965 and Code of Civil Procedure sections 998 and 1032. However, in the notice of the GGF motion, GGF does not, to the extent GGF seeks an award of costs, state the grounds upon which the motion is made in a manner sufficient to define the issues for the information of Bernal or this Court. For example, the notice does not state the amount of the costs sought by GGF, and does not state that the GGF motion is based on the cost memorandum. For these reasons, the notice of the GGF does not meet procedural requirements. Therefore, and because GGF has also failed to file a procedurally appropriate motion for costs as it has done for attorney fees, GGF has “forfeited any such claim and [Bernal] had no obligation to respond to its ineffective cost memorandum.” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 558.)
Even if the Court were inclined to consider the arguments offered in the GGF motion with respect to the items of costs set forth in the later-filed cost memorandum, the GGF motion is also deficient in this regard. For example, in the GGF motion, GGF includes a separate section expressly addressing GGF’s purported entitlement to costs. (See GGF Motion, Memo at p. 3, section 2.) In this section of the memorandum, which is the only section specifically directed to the request of GGF for an award of costs, GGF contends that it is entitled to recover its costs of suit based on a statutory offer to compromise served by GGF on December 12, 2022 (the offer), pursuant to Code of Civil Procedure section 998. (Ibid.) Though GGF references section 998 in the portion of the memorandum specifically directed to its request for an award of costs, GGF offers no reasoned argument also showing that it is entitled to an award of costs under FEHA.
Furthermore, section 998, which modifies the provisions of Code of Civil Procedure section 1032, permits recovery of expert witness fees, at the court’s discretion, provided certain prerequisites are met. (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 832 (Covert); Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 803-804.) In the GGF motion, GGF, who bears the burden to demonstrate that the offer is valid, presents sparse facts and little reasoned argument to support its contention that it can recover all of its “costs of suit” based on an offer made under section 998. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86 (Ignacio) [“[t]he burden is on the offering party to demonstrate that the offer is valid under section 998”].) Further, GGF offers no information regarding which, if any expert fees it seeks to recover or in what amount.
In addition, apart from asserting that when the offer was made, the litigation “had been pending for more than 2.5 years” and “the parties had engaged in extensive discovery”, GGF fails to offer any information regarding the terms and conditions of the offer sufficient to permit the Court to determine if the offer was sufficiently specific or if any release within the offer is invalid, among other things. (GGF Motion at p. 3, ll. 1-7; Brody Decl., ¶ 29; Covert, supra, 73 Cal.App.5th at pp. 832-833 [offer under section 998 is “strictly construed” and any ambiguities are interpreted against the proponent of the offer]; Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 764 [offer must be sufficiently specific]; Ignacio, supra, 2 Cal.App.5th at pp. 86-87 [offer included invalid release].) For these reasons, the sparse information and argument offered in the GGF motion is insufficient to demonstrate an entitlement to an award of expert fees under section 998, much less an award of all costs of suit incurred by GGF as GGF contends in the GGF motion.
Under the circumstances present here in which GGF filed the cost memorandum separate from and after it filed the GGF motion such that the items of costs claimed by GGF are not reflected or included in the GGF motion, the filing of the cost memorandum by GGF “amounts to a request for the clerk to award the costs a prevailing party would be entitled to as a matter of right under [Code of Civil Procedure] section 1032.” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 557.) “The clerk has no authority to exercise discretion in awarding costs, let alone to make the frivolousness finding required by section 12965; the cost memorandum was therefore an ineffective means of seeking costs in this FEHA case.” (Ibid.)
Whether or not the Court could, or was presently inclined to, consider the arguments offered in the GGF motion to determine whether the items of costs described in the cost memorandum may be awarded under FEHA, the Court must first determine that Bernal’s action was “frivolous, unreasonable, or groundless when brought, or that the [Bernal] continued to litigate after it clearly became so” before it may exercise its discretion to award any costs to GGF. (Gov. Code, § 12965, subd. (c)(6); Williams, supra, 61 Cal.4th at pp. 114-115 [the trial court’s discretion must be “exercised in the same manner for costs as for attorneys fees” and within the standard set forth in Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 421-422 (Christiansburg)].)
“In making this determination, the court ‘should exercise caution to avoid “hindsight bias.” ’ [Citations.]” (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 950-951.) The court should also consider that “[n]o 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.” (Christiansburg, supra, 434 U.S. at p. 422.)
As reflected in the judgment, a jury found that Bernal suffered from a physical or mental condition that limited a major life activity that was known to GGF. This factual finding alone is sufficient to show that Bernal may have had a reasonable grounds for bringing the present action such that the action was not frivolous, unreasonable, or groundless when brought.
The Court further notes that, in its October 23, 2023, Minute Order, the Court found that the motion of GGF for summary judgment was not supported by sufficient evidence that no reasonable accommodations would allow Bernal to perform her employment functions. (Oct. 23, 2023, Minute Order.) In addition, for reasons more fully discussed in the October 23, 2023, Minute Order, the Court found that GGF had failed to negate the elements of the first, fourth, and fifth causes of action alleged in the complaint, or to establish a complete defense to these causes of action, and that there existed triable issues of fact with regard to whether Bernal was released back to work with no restrictions and whether Bernal was able to work with or without restrictions. (Ibid.)
Though the fact that Bernal’s claims survived a GGF motion for summary judgment does not show that Bernal’s claims were not frivolous, unreasonable, or without foundation, Bernal’s presentation of opposing evidence including the declaration of her primary physician as noted in the October 23, 2023, Minute Order, tends to show that Bernal had some evidence to support her claims as of approximately 5 months prior to trial. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389 (Cummings).) The evidence and information offered by the parties in connection with the GGF motion for summary judgment is also sufficient to show that reasonable minds could differ as to the merits of Bernal’s claims. (Ibid.) The fact that GGF ultimately presented evidence at the time of trial sufficient to secure a verdict in its favor is not a factor the Court considers to determine whether the action was groundless. (Christiansburg, supra, 434 U.S. at pp. 421-422 [the court must “resist the 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”].)
Moreover, whether Bernal did or did not choose to present certain evidence or testimony at trial is of marginal relevance to the issues presented here. For example, Bernal offers a reasonable explanation for her decision not to call her primary physician to testify at trial (See Coleman Decl., ¶ 22.)
The information and evidence offered in the Brody declaration and the memorandum in support of the GGF motion to ostensibly show that the claims of Bernal were or became frivolous, unreasonable, or groundless, also effectively amounts to a retrospective reexamination of the evidence and whether the evidence was sufficient to show that Bernal had been fully released for work or whether there existed any reasonable accommodation that would permit Bernal to work. For reasons discussed above, the Court does not engage in “hindsight logic” to determine the issues presented here. (Christiansburg, supra, 434 U.S. at p. 422.)
In addition, that fact that a neutral evaluator may have offered an opinion indicating that Bernal had not established a prima facie case on unspecified legal issues, without more, is insufficient to show that the action was frivolous, unreasonable, or groundless. For example, Bernal offers competing evidence to show that the neutral evaluator stated that the opinion was limited to the narrow issue of whether there exist triable issues of fact and that the evaluator did not offer an opinion as to the likelihood of Bernal’s success on the merits at trial. (Coleman Decl., ¶ 8.)
The Court has reviewed all available evidence information including that presented in the Brody declaration. Even if the Court were to find that the information and evidence offered by GGF may be sufficient to show that Bernal did not necessarily have an “airtight” claim and that some facts may have been unfavorable or questionable, this is insufficient for present purposes to justify an award of costs to GGF. (Christiansburg, supra, 434 U.S. at pp. 421-422.) At best, under the circumstances present here, “the case at bar appears to be a routine case in which the plaintiff merely failed to achieve success on her claim.” (Cummings, supra, 11 Cal.App.4th at p. 1390.) Even if GGF could show that Bernal failed to produce any evidence to support her claims, this does not require the Court to conclude that the claims were so frivolous, unreasonable, or without foundation such that GGF would be entitled to an award of attorney fees. (Ibid. [also noting that even suits in which a plaintiff has failed to produce any evidence of discrimination are not necessarily frivolous, unreasonable, or without foundation].)
The Court further notes that “[t]he Legislature expressly pegs section 998 to section 1032. [Citation.] In non-FEHA actions, a ‘defendant is entitled under section 998 to those costs incurred after the settlement offer to which a prevailing party would be entitled under section 1032.’ [Citation.] In non-FEHA actions, where the special prevailing party cost statute is not an express exception to section 1032, a defendant is also entitled under section 998 to its postoffer costs. [Citation.] But in nonfrivolous FEHA cases, the prevailing party cost provisions are express exceptions to section 1032. [Citation.] It follows, then, that section 998 does not apply in nonfrivolous FEHA actions. [Citation.]” (Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 84.) Accordingly, section 998 does not entitle GGF to an award of expert witness fees under the circumstances present here.
The examples offered above are intended to be illustrative but not exhaustive. For all reasons further discussed above, GGF has failed to file a procedurally appropriate motion for costs as it has done for its attorney fees, and has failed to meet its burden to persuade the Court that it is entitled to an award of costs under FEHA or section 998. Therefore, the Court will grant the motion to strike of Bernal and order the cost memorandum stricken from the record.
As the Court will grant the motion to strike, it need not address whether or not the items of costs claimed in the cost memorandum are allowable, excessive, or not reasonably necessary to the conduct of the litigation.
(2) The GGF Motion
In the GGF motion, GGF requests an award of attorney fees under FEHA. The same analysis and reasoning applies. For all reasons further discussed above, the Court will deny the request of GGF for an award of attorney fees under FEHA.
Alternatively, GGF requests an award of attorney fees based on what GGF contends was an unreasonable refusal by Bernal to admit a series of requests for admissions which, according to GGF, would have substantially limited the scope of this litigation.
“If a party fails to admit … the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves … the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Code Civ. Proc., § 2033.420, subd. (a).) Relevant here, the court is required to award attorney fees authorized under subdivision (a) of section 2033.420 unless it finds the admission sought was “of no substantial importance”, that “[t]he party failing to make the admission had reasonable ground to believe that that party would prevail on the matter”, or that another good reason exists for the party’s failure to admit. (Code Civ. Proc., § 2033.420, subd. (b)(2)-(4); Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529 (Grace).)
“In evaluating whether a ‘good reason’ exists for denying a request to admit, ‘a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.’ [Citation.]” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) In addition, the party seeking to recover fees based on a failure to admit “must show they spent the amounts claimed to prove the issues” that “should have [been] admitted.” (Grace, supra, 240 Cal.App.4th at p. 529.) “The requested amounts must be segregated from costs and fees expended to prove other issues.” (Ibid.)
To support the request for attorney fees incurred to prove matters that GGF contends should have been admitted by Bernal, GGF submits the Brody declaration to which a set one requests for admission (the RFA) directed to Bernal is attached as exhibit N. (Brody Decl., Exh. N.) The RFA presently at issue appear to include RFA Nos. 1 through 12, 14, 15, 17, and 22 through 24 only. (Brody Decl., ¶ 9.)
GGF fails to segregate fees expended to prove the issues that GGF contends should have been admitted by Bernal in each RFA identified above and in the Brody declaration. Instead, GGF appears to seeks recovery for all fees it incurred in this matter from the time GGF retained the firm of LightGabler LLP, without respect to whether these fees were incurred to prove issues that purportedly should have been admitted by Bernal in response to RFA Nos. 1 through 12, 14, 15, 17, and 22 through 24. (See Brody Decl., ¶ 33 & Exh. V [statement of all fees incurred by LightGabler LLP, from March 2023 through April 2024]; see also Fellows Decl., ¶¶ 5-7.)
Because GGF has failed to segregate amounts it incurred to prove the issues stated in the RFA, the Court is without sufficient information to make the required order. For example, the Court is unable to determine whether the award sought in the GGF motion is limited to fees spent to prove the issues GGF contends Bernal should have admitted with respect to the RFA identified above or whether the award sought in the GGF motion includes fees unrelated to amounts incurred to prove those issues. Furthermore, GGF offers no information or argument to permit the Court to determine what, if any, amount would compensate GGF for fees incurred to prove any matters that should have been admitted by Bernal with respect to RFA Nos. 1 through 12, 14, 15, 17, and 22 through 24. Therefore, GGF has failed to meet its burden.
By way of further example, GGF appears to contend that Bernal’s denials of RFA Nos.10 through 12, 14, and 22 were unreasonable because it was “undisputed at trial” that Bernal could not work from October 29, 2018, through February 3, 2020. (Brody Decl., ¶¶ 10-13.) However, GGF fails to sufficiently explain how the RFA at issue are each necessarily or specifically directed to whether Bernal could or could not work during this time period. Even if the Court were to find that Bernal’s denials of RFA Nos. 10 through 12, 14, and 22 were unreasonable (and the Court presently makes no findings in this regard), the failure by GGF to segregate amounts incurred to prove the matters stated in these RFA prevents the Court from determining what amounts, if any, would be reasonable to compensate GGF for any expenses in making the necessary proof, which appears to have been undisputed regardless. (Grace, supra, 240 Cal.App.4th at p. 530 [amounts cannot be awarded if parties stipulate to facts].)
The Court also notes that the RFA were served on Bernal on May 8, 2020, less than two months after Bernal filed her complaint in this action. (Brody Decl., Exh. N.) In RFA Nos. 1 through 8, 23, and 24, GGF effectively asks Bernal to admit that her claims are without merit. (See, e.g., Brody Decl., Exh. N, RFA Nos. 1-8, 23, 24 [requesting that Bernal admit that GGF did not discriminate against, retaliate against, or wrongfully terminate Bernal; did not fail to prevent discrimination or retaliation, to provide reasonable accommodation, or engage in a good faith interactive process; that GGF is not a “legal cause” of any damage to Bernal; and that Bernal is not entitled to declaratory relief and failed to mitigate damages].) To permit GGF to serve RFAs on Bernal “essentially seeking responses admitting that [Bernal] had no case” at the inception of this litigation when available information and evidence shows or indicates that no discovery had occurred, and then permit GGF to recover its costs of proof when Bernal ultimately proves unsuccessful after a jury trial would be “tantamount to a form of strict liability …. That cannot be the law.” (Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 130-131.)
Furthermore, Bernal presents evidence by way of her fact-intensive responses to GGF’s Form Interrogatory No. 17.1 with respect to the RFA at issue, which are sufficient to show that, at the time Bernal served her responses to the RFA at issue, she had a reasonable ground to believe she would prevail on the facts and issues that GGF requested she admit. (See Coleman Decl., ¶¶ 4-5 & Exh. B; Bruno v. Hopkins (2022) 79 Cal.App.5th 801, 828 [“[w]hether a party has a reasonable ground to believe he or she will prevail necessarily requires consideration of all the evidence, both for and against the party's position, known or reasonably available to the party at the time the RFA responses are served”].)
For all reasons discussed above, as GGF has failed to segregate amounts it purportedly incurred to prove facts or issues it contends Bernal should have admitted and also has failed to sufficiently demonstrate, for all RFA at issue, that Bernal had no reasonable ground to believe she would prevail on any of the matters stated in the RFA, the Court will deny the GGF motion to the extent it requests recovery of attorney fees incurred in connection with proving the truth of matters stated in RFA Nos. 1 through 12, 14, 15, 17, and 22 through 24.
GGF asserts no further grounds for its request for an award of attorney fees apart from those discussed above. Therefore, the Court will deny the GGF motion.