2017-00219183-CU-OE

Philip Mcguire vs. Paratransit, Inc.

Nature of Proceeding: Motion to Strike or Tax Costs

Filed By: Barnum, Randal M.

Plaintiff Phillip McGuire’s Motion to Strike or Tax Defendant’s Memorandum of Costs is unopposed, taken as a concession to the merits, and is granted.

In this FEHA action, plaintiff voluntarily dismissed the case on January 11, 2018. Defendant filed a Cost Bill on January 26, 2018 seeking $645 in costs, including filing and motion fees and service of process fees, as well as indicating that a motion for attorneys fees would follow.

Plaintiff seeks to strike the cost bill on the grounds that defendant is not the prevailing party under FEHA and because defendants are not entitled to costs in a FEHA action absent a showing that plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Hon v Marshall (1997) 53 Cal.App.4th 470, 478. To determine whether an action was “objectively without foundation when brought,” the court must apply the standard set forth by the United States Supreme Court in Christianberg Garment Co.
V. EEOC (1978) 434 U.S. 412 (“Christianberg”). (Id at p. 99-100.) In Christianberg, the United States Supreme Court held that a prevailing defendant in a Title VII case could be awarded attorneys’ fees only if the plaintiff’s action was “frivolous, unreasonable, or without foundation.” (Christianberg, supra, 434 U.S. at p. 421.) “Without foundation” means that the case is groundless or without a legal or factual basis, not that the plaintiff lost. (Id.)

In a FEHA action, a prevailing defendant “should not be awarded fees and costs unless the court finds that the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 .)

Defendant is not a prevailing party when a FEHA action is not decided on the merits. Hon v Marshall (1997) 53 Cal.App.4th 470, 478 [defendant not the prevailing party when complaint dismissed for lack of jurisdiction].

The Court grants the unopposed motion to strike costs on the ground that defendant is not the prevailing party and has not established that plaintiff filed or pursued this action without reasonable foundation.