Case Number: BC617093 Hearing Date: March 21, 2018 Dept: 53

philip garcia vs. wells fargo bank, n.a. , et al.; BC617093, MARCH 21, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION TO TAX AND TO STRIKE DEFENDANTS’ COSTS

Plaintiff PHILIP GARCIA’s Motion to Tax and to Strike Defendants’ Costs is DENIED.

Background

Plaintiff Philip Garcia (“Garcia”) filed this action on April 14, 2016, against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and Melissa White (“White”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) Violations of Labor Codes §§98.6 and 1102.5; (2) Adverse Action in Violation of Public Policy; (3) Discrimination; (4) Retaliation; (5) Failure to Prevent Harassment, Discrimination, and Retaliation; and (6) Defamation.

Defendants moved for summary judgment or, in the alternative, for summary adjudication on March 15, 2017. Garcia opposed. On October 12, 2017, the Court granted the motion for summary judgment.

Defendants subsequently filed and served a memorandum of costs seeking reimbursement for costs associated in defending against this action. Garcia now moves to strike and tax the memorandum of costs. Defendants oppose.

DISCUSSION

After a prevailing party files a memorandum of costs, the losing party may dispute any or all of the items in the prevailing party’s costs memorandum by a motion to strike or tax costs. (See CRC 3.1700(b).) “A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 (italics and brackets omitted).) Where the objections are based on factual matters (e.g., disputes as to nature or amount of particular costs), the motion to strike must be supported by declarations under penalty of perjury. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114; see also Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266 (“mere statements in the points and authorities accompanying [a party’s] notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing”).)

While the right to recover costs of suit is generally determined by CCP §1032 et seq., some statutes expressly provide methods for determining the right to recover costs. In such cases, the statutorily-described method prevails. (CCP § 1032(b) (“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs”).)

In actions brought under the FEHA, the court, in its discretion, may award to the prevailing party “reasonable attorney’s fees and costs, including expert witness fees.” (Gov.C. §12965(b).) However, the California Supreme Court has interpreted this statute to include significant limitations on a prevailing defendant’s entitlement to fees and costs: “A prevailing defendant … 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.” (Williams v. Chino Valley Indep. Fire Dist. (2015) 61 Cal.4th 97, 115.)

Garcia asserts that his claims were not without merit notwithstanding that they were dismissed on summary judgment. Garcia contends that he furnished evidence that Defendants discriminated and retaliated against him after he shared his wife’s intent to sue Defendants for pregnancy discrimination, which overlapped with Garcia’s complaints about fraudulent activity at Wells Fargo. Garcia also contends that only costs properly allocated to non-FEHA claims may be recovered by a prevailing defendant, unless the FEHA claim was also frivolous. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062.)

Defendants assert, on the other hand, that Garcia’s FEHA claims were objectively frivolous. Defendants contend that at summary judgment, Garcia did not oppose Defendants’ argument that he could not establish a prima facie case because he had admitted that he was not performing his job satisfactorily. In addition, Garcia’s discrimination claim was premised on the untenable theory that his employment was terminated because of his association with his pregnant wife, who had given birth eight months before Garcia was fired. The Court finds that there was no objective foundation to bring the discrimination claim because disability association discrimination requires that Garcia’s wife suffer from a disability at the time of Garcia’s termination. That requirement clearly was not met at the time the action was filed, and Garcia did not show that continued litigation of the issue would have resulted in a different outcome.

Furthermore, on summary judgment, the Court found that there was little evidence to support the retaliation and whistleblower claims premised on Garcia’s complaints about fraudulent activity. Here, the Court similarly finds that Garcia had no objective foundation in bringing those claims. Rather, the evidence showed, and Garcia conceded, that he failed to adequately perform his job and was fairly disciplined as a result. Accordingly, the Court finds that the FEHA claims were brought without an objective basis for believing that it had potential merit.

Finally, Garcia has failed to shoulder his burden to show that the specific costs he is challenging were not reasonable or necessary. Garcia’s conclusory statement that the deposition costs and filing and motion fees are excessive is insufficient to overcome Defendants’ prima facie evidence of the propriety of these costs.

CONCLUSION

For the foregoing reasons, Motion to Tax and to Strike Defendants’ Costs is DENIED.

Defendants are ordered to provide notice of this ruling.

DATED: March 21, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court