Opinion
B211986
11-30-2011
KARIM A. SHABAZZ, Plaintiff and Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant and Respondent.
Nina Ringgold for Plaintiff and Appellant. Christopher J. Yost, Federal Express Corporation, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BC373824)
APPEAL from orders and judgment of the Superior Court of Los Angeles County. Elizabeth A. Grimes, Judge. Affirmed in part, reversed in part.
Nina Ringgold for Plaintiff and Appellant.
Christopher J. Yost, Federal Express Corporation, for Defendant and Respondent.
INTRODUCTION
Karim Shabazz appeals from the trial court's grant of summary judgment in favor of his employer Federal Express in addition to adverse rulings on various pre- and post-judgment motions. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL SUMMARY
On July 5, 2007, Karim Shabazz (in pro per) filed a complaint against Federal Express, asserting four causes of action: (1) disability discrimination, retaliation and wrongful termination in violation of Government Code section 12940 et seq. and public policy; (2) failure to engage in a timely good faith, interactive process and failure to provide a reasonable accommodation for disabilities in violation of Government Code section 12940 et seq. and public policy; (3) breach of contract; and (4) failure to provide and/or designate intermittent leave in violation of the California Family Rights Act (Gov. Code, § 12900 et seq.) and public policy.
Shabazz alleged as follows: He was hired by Federal Express in 1996 and was last assigned to the Marina del Rey station where he worked as a courier. He received good reviews and special commendations.
In January 1999, Shabazz alleged, he suffered a hernia, and Federal Express acknowledged the hernia as a work-related injury. Between 2000 and 2002, he suffered several illnesses requiring time off work. In late 2001, he was diagnosed with diabetes and placed on medical leave under the Family Medical Leave/California Family Rights Act.
From 2002 through his termination in 2005, Shabazz requested reasonable accommodations based on his disabilities. Other than one request granted by manager Karen Parker, Federal Express either ignored his requests or provided miscellaneous erroneous reasons why he could not be accommodated. Further, Federal Express failed to engage in any timely, good faith interactive process with Shabazz, choosing instead to counsel and reprimand him for minor performance deficiencies caused by his disabilities and/or perceived disabilities. Federal Express never requested that Shabazz produce medical documentation to substantiate his disabilities or requests for accommodation, and he was never asked to contact any person, division or department to request an accommodation or "Reasonable Accommodation Form."
After Shabazz complained to management about what he felt was harassment, after he reported safety concerns he had about broken and unsafe equipment, Federal Express began a campaign of threatening, harassing, intimidating, accusing, charging and erroneously disciplining him. When he tried to use his employer's Guaranteed Fair Treatment Process (GFTP) to protest discipline he erroneously received, he was threatened and informed he would probably not win and that moving forward would not look good on his record for going into the Federal Express management program.
After he attempted to use the Guaranteed Fair Treatment Process in March/April 2005, Federal Express continued to treat Shabazz unlawfully by refusing to allow him to consult with a surgeon for his work-related injury, refusing to reasonably accommodate his requests for accommodations, refusing to honor his medical restrictions and failing to conduct thorough and good faith investigations after alleging his violation of company policies.
Shabazz alleged he was pretextually terminated on July 8, 2005, and he filed timely complaints with the Department of Fair Employment and Housing and received right to sue letters thereafter.
Federal Express answered in October 2007.
On January 8, 2008, the trial court conducted a case management conference and made orders, including a reference to mediation to be completed by April 15, 2008, and a trial date set for July 7, 2008 (five months later). Shabazz (representing himself) had filed a statement indicating he would complete anticipated discovery (written discovery and depositions) by February/March 2008. Federal Express had represented it anticipated completing discovery (interrogatories, requests for production and Shabazz's deposition) by March/April 2008.
On January 23, Federal Express propounded discovery on Shabazz, comprised of 56 requests for production of documents, 33 employment form interrogatories, 43 general form interrogatories, 27 special interrogatories and 25 requests for admission.
On February 19, Federal Express filed an ex parte application to shorten time to consider its motion to continue trial and related dates. According to the declaration of defense counsel (Christopher Yost) with supporting exhibits, on January 24, Federal Express had noticed Shabazz's deposition for February 8, but Shabazz e-mailed the following day indicating his unavailability and requested alternate dates. Federal Express was unwilling to take the scheduled date off calendar without securing an alternate date and proposed February 15. Shabazz responded he did not "have anyone to appear with [him]" on the 15th but "believe[d] he ha[d] someone" who could appear with him on the 21st or 22nd. On February 6, defense counsel responded he would be out of town that week and wished to proceed on the 15th as it appeared Shabazz was available, but if Shabazz was retaining counsel, he (Yost) would try to rearrange his schedule so the deposition could proceed on the 22nd. Otherwise, if Shabazz was proceeding in pro per, Yost would notice the deposition for the 15th. He said he could no longer communicate with Shabazz directly if he was now represented and requested new counsel contact Yost instead.
On February 7, Shabazz responded that he could not proceed on the 15th and was hiring an attorney to attend the deposition, but "due to scheduling concerns the attorney has let me know that they cannot attend a deposition until after February 21," and he did not want to proceed on February 22. On February 8, Yost reiterated that he had said Federal Express was unwilling to take the February 8 date off calendar without securing an alternate, and Shabazz was obligated to appear but had rejected proposed alternate dates so the deposition was not taken off calendar and Shabazz failed to appear. Yost said Shabazz's failure to agree to a date for his deposition and plans to retain counsel would prejudice Federal Express's ability to meet the deadlines imposed by the pending trial date so, rather than filing a motion to compel Shabazz's deposition, he proposed the parties seek to continue the trial date to permit Shabazz to engage counsel, to allow counsel to get up to speed on Shabazz's claims and select a date and proceed with his deposition.
On February 13, Shabazz agreed to Federal Express's proposal to continue the trial date, said he had retained counsel to defend his deposition and his new attorney would contact Yost to schedule an agreeable date. The following day, Nina Ringgold (Shabazz's appellate counsel) e-mailed Yost, indicating she would not be available for deposition until March 12 and 13 due to trial commitments. That day (February 14), Yost e-mailed Shabazz to give notice Federal Express would proceed with the ex parte on February 19, and on February 15, "via pdf e-mail," served Shabazz with the ex parte documents Federal Express filed in support of the request.
Federal Express's request was accompanied by a notice of non-opposition signed by Shabazz, stating he did not oppose Federal Express's ex parte application, "[r]ather, [he] support[ed] it."
On February 20, Federal Express served notice the court had ordered as follows: (1) the ex parte application was granted; (2) the new trial date was August 11, 2008; (3) Shabazz was to appear for deposition on February 28 and 29 under penalty of sanctions to and including dismissal; and (4) Shabazz "is NOT represented by counsel in this matter until such counsel files a Substitution of Counsel for all purposes with the Court; until such time, [Shabazz] remains In Pro Per for all purposes, including at his deposition."
On February 27, Shabazz appeared for the first day of his videotaped three-day deposition.
That same day, Shabazz served responses to Federal Express's requests for production (two days late) but no responses to the requests for admissions.
On March 4, Federal Express filed a motion to deem admissions and request for sanctions. Shabazz then filed responses that evening, but the trial court ordered Shabazz to pay Federal Express sanctions in the amount of $3,200 for his delay in responding.
On April 22, Federal Express filed a motion for summary judgment or summary adjudication of Shabazz's claims on multiple grounds, including the time bar of the six-month statute of limitations set forth in his signed employment agreement and failure to exhaust administrative remedies where required. The hearing was set for July 7.
Three weeks later, on May 15, Federal Express filed an amended declaration (of Cynthia Gonzalez, Senior Litigation Paralegal for Federal Express), regarding exhibits relating to Shabazz's timecards and start times previously filed in support of its motion. In addition, there was a notice of errata indicating her original declaration incorrectly bore the caption for another case and corrected that error to identify Shabazz's case instead.
Another four days later, on May 19 (27 days after the original April 22 notice of motion), Federal Express filed an amended notice of motion for summary judgment or adjudication, indicating its original notice of motion contained the correct hearing date (July 7) in the caption, but incorrectly stated in the body of the notice that the hearing would take place on August 11 (the trial date). Federal Express asserted there could be no prejudice as the original caption and all other supporting pleadings identified the July 7 date.
On May 30, represented by counsel (Nina Ringgold), Shabazz filed a motion to quash deposition subpoenas for employment records and requested sanctions against Federal Express, on the grounds the subpoena to Shabazz's current employer was defective for failure to give Shabazz prior notice as required; the requested documents were irrelevant and protected by Shabazz's privacy rights; and sanctions against Federal Express were justified for Federal Express's bad faith or lack of substantial justification. (No amount of sanctions was identified in the notice of motion.) In her declaration, Ringgold said any experienced attorney would be aware of the proper manner in which to serve a subpoena for consumer and employment records. "It is clear the delayed service of the subpoena on the plaintiff (in pro per) was an abusive and unlawful use of the subpoena power. Unwarranted tactics of this sort have forced plaintiff to incur the expense of retaining an attorney. Such misuse of the discovery process is also reportable to the California State Bar."
She requested orders striking the subpoena in its entirety, requiring defense counsel to relinquish the original and all copies, prohibiting Federal Express and its counsel from using the documents and an award of attorney's fees and costs. Given the prior award to Federal Express of $3,200 in sanctions in connection with the motion to deem admissions, Ringgold urged, it would be grossly unfair not to award Shabazz his fees and costs for the blatant violation of subpoena and discovery procedures in this instance. At a rate of $350 per hour, the cost of preparing and appearing for the motion to quash as well as the ex parte application for order shortening time required plus costs amounted to $4,287.50. In his own declaration, Shabazz said he had spent $750 for legal consultation fees and $475 on courier and typist fees.
On June 4, Shabazz filed a form entitled "Notice of Limited Scope Representation," indicating Nina Ringgold would provide limited scope representation in the case at hearings set for June 6, June 24 and July 7, e-mailing a copy to defense counsel with another copy placed in the U.S. mail that day.
That same day (June 4), Shabazz filed a motion "regarding plaintiff's deposition transcript," seeking relief pursuant to Code of Civil Procedure section 473 due to lack of proper or timely notice regarding time for corrections and for protective order prohibiting use of transcript and exhibits in pending motion for summary judgment or adjudication and request for sanctions under Code of Civil Procedure section 2025.420. (The notice of motion did not include any specification of the party or attorney or the amount of sanctions sought.)
In his declaration, Shabazz said his deposition was taken February 27 through February 29, but he was not notified a transcript was available and only had some idea when he was served with Federal Express's motion for summary judgment or adjudication. He made repeated attempts to contact the court reporter and when he reached her after much time had expired, she informed him it would cost more than $1700 for him to obtain a copy of the transcript, but he was unable to pay this amount due to his limited financial means. After that (in a letter dated May 7), the court reporter sent him notice he could make corrections. He needed the assistance of an attorney to review the transcript and make necessary corrections and he had made reasonable and good faith efforts to meet and confer to resolve the matter without success.
According to this motion, notwithstanding Code of Civil Procedure section 2025.510 and the "normal stipulation" recognized in standard practice guides relieving the reporter of her duties under the Code, which recites that the original transcript shall be delivered directly to the deponent's counsel (and not examining counsel); that deponent's counsel assumes responsibility for notifying other counsel of any changes made by the deponent during the 30-day period provided; that unless such notice is given, the deposition shall have the same force and effect as though signed by the deponent without corrections; and deponent's counsel shall retain custody of the original until after final judgment in the action or as otherwise ordered, defense counsel recited a stipulation on the record providing the transcript would be forwarded to him.
In Ringgold's declaration, she said she had been practicing civil litigation for more than 15 years with substantial experience in employment discrimination, she had never seen a plaintiff in an employment case incur a $1700 cost for the original transcript of his own deposition, and it was "clear" defense counsel had advance access to plaintiff's transcript and was aware no notice was provided to Shabazz and Shabazz did not have the transcript; under the circumstances, defense counsel was proceeding with a dispositive motion in bad faith, was taking unfair advantage of Shabazz because he was in pro per and sanctions in the amount of $2,712.50 should be imposed.
Also on June 4, Federal Express filed a motion to bifurcate punitive damages claim and preclude Shabazz from introducing evidence of Federal Express's financial condition.
On June 5, Federal Express filed "notice that plaintiff's motion to quash deposition subpoena for production of business records and for sanction is moot" and "request to dismiss said motion and take it off calendar." According to Federal Express, it had served a notice of withdrawal of the original subpoena on May 6 followed by a new subpoena. According to Federal Express, with the filing of the notice of limited scope representation, Shabazz was "in contempt of this court's February 19, 2008, order," stubbornly refused to meet and confer and was knowingly pursuing a moot motion. In addition, Federal Express filed oppositions to Shabazz's motions and ex parte applications for orders shortening time relating to the motion to quash, the motion regarding his deposition transcript and to advance the briefing and hearing dates on Federal Express's summary judgment or adjudication motion.
On June 23, 2008, Federal Express filed a corrected notice of withdrawal.
On June 12, Shabazz filed a motion to continue trial, to set date for mediation and for financial condition discovery pursuant to Civil Code section 3295, subdivision (c), Code of Civil Procedure section 128 and California Rules of Court Rule 3.1332. According to her supporting declaration, as Ringgold was the former director of the Disability Mediation Center at Loyola Law School, she checked the status of dispute resolution efforts upon her retention and was surprised to find that when Federal Express sought a continuance of the trial date, it failed to address the mandatory mediation completion date. She said she had been recently retained and would represent Shabazz through trial (set for August 11) but had substantial conflicts with this date because of expedited briefing in the Court of Appeal in matters with calendar preference by court order. For this reason and in order to pursue mediation and because Shabazz needed to complete necessary discovery including the financial condition discovery requested in this motion, trial should be continued. Based on her review, she said, there was a substantial probability Shabazz would prevail on his punitive damage claims as Shabazz was a long term employee, Federal Express failed to engage in a reasonable dialog about the need and manner in which to accommodate Shabazz's disability and instead made pretextual assertions about his performance to avoid complying with the law. Shabazz requested a trial date of November 18, mandatory mediation completion date of August 4 and an order allowing financial condition discovery.
Federal Express opposed this motion as well.
On June 23, Shabazz filed his opposition to Federal Express's motion for summary judgment or adjudication along with supporting documents (including his own declaration) as well as objections to Federal Express's evidence.
Federal Express filed its reply along with further objections to Shabazz's opposition papers and additional documents set forth in his other pending motions.
On July 3, the trial court denied Shabazz's motion to continue trial, set mediation date and for financial condition discovery and sanctioned Shabazz and his counsel in the amount of $3,800 pursuant to Code of Civil Procedure section 2024.050, subdivision (c).
On that same date (July 3), Shabazz filed a motion for sanctions under Code of Civil Procedure section 128.7 relating to three documents filed by Federal Express in connection with his motion to quash deposition subpoena.
On July 7, after taking the matter under submission following argument, the trial court denied Shabazz's motion regarding his deposition transcript, granted Federal Express's summary judgment motion and deemed the remaining motions (regarding the subpoena for employment records and Federal Express's motion to bifurcate) moot, and entered judgment in Federal Express's favor.
On July 14, Shabazz filed a motion for reconsideration of the July 3 denial of its motion to continue trial, set mediation and complete financial condition discovery and imposition of sanctions.
Federal Express filed its own motion for sanctions under Code of Civil Procedure section 128.7, arguing Shabazz's motion for reconsideration did not comply with Code of Civil Procedure section 1008.
Federal Express filed a memorandum of costs and Shabazz filed a motion to tax in response.
The trial court granted Shabazz's motion to tax to the extent he had voluntarily drawn the amount of $552.23, and granted Federal Express's motion for sanctions under Code of Civil Procedure section128.7, ordering Shabazz's counsel to pay $5,800 to Federal Express.
Shabazz appeals.
DISCUSSION
The Trial Court Did Not Err in Imposing Sanctions for Shabazz's Failure to File Timely Responses to Federal Express's Requests for Admissions.
According to Shabazz, the trial court abused its discretion in granting Federal Express's request for sanctions in the amount of $3,200 for his failure to file a timely response to requests for admission because he did not engage in "any willful discovery violation." We disagree.
We reject Shabazz's assertion that Federal Express is not entitled to sanctions as a "pro per corporate entit[y]" represented by in-house counsel. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1093-1094.)
"If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: . . . It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion." (Code Civ. Proc., § 2033.280, subd. (c).) Shabazz concedes he did not serve responses when they were due (on or about February 25, 2008), and Federal Express filed its motion to deem admissions on March 4. Shabazz then e-mailed responses after close of business that night (at 6:15 p.m.). Consequently, although he served his responses one week after they were due, sanctions were properly imposed under Code of Civil Procedure section 2033.280, subdivision (c).
In his opposition, Shabazz said he had notified counsel for Federal Express at 8:31 a.m. on March 4 (the date the motion was filed) that his responses would be served later that same day and counsel did not object, but Shabazz said nothing about such a communication with defense counsel in his supporting declaration; in his declaration, he said defense counsel knew he was ill, and he (Shabazz) would have requested an extension if he had realized he could do so.
The Trial Court Erred in Imposing Sanctions Pursuant to Code of Civil Procedure Section 2024.050.
Shabazz says the trial court erred (1) in imposing sanctions in the amount of $3,800 against him and his attorney pursuant to Code of Civil Procedure section 2024.050 in connection with the denial of his request to conduct financial condition discovery under Civil Code section 3295 and (2) in later denying his subsequent motion for reconsideration of this order. We agree that sanctions were improperly imposed pursuant to Code of Civil Procedure section 2024.050.
Shabazz filed a motion to continue trial, to set a date for mediation and for financial condition discovery pursuant to Civil Code section 3295, subdivision (c). Federal Express opposed the motion and argued it was entitled to sanctions pursuant to Code of Civil Procedure section 2024.050 for Shabazz's failure to meet and confer before seeking to reopen discovery. Agreeing with Federal Express, the trial court imposed sanctions in the amount of $3800 against Shabazz and his counsel.
As relevant, subdivision (c) of Civil Code section 3295 provides as follows: "No pretrial discovery by the plaintiff shall be permitted with respect to [the financial condition of the defendant or profits gained by virtue of the defendant's wrongful course of conduct] unless the court enters an order permitting such discovery pursuant to this subdivision. . . . Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. . . ." (Italics added.)
Code of Civil Procedure section 2024.050, subdivision (a), provides: "On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040."
Pursuant to subdivision (c) of this statute, "The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." Code of Civil Procedure section 2023.010 states: "Misuses of the discovery process include, but are not limited to, the following: . . . (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made." (Italics added.)
While a motion to reopen discovery pursuant to section 2024.050 would have required the filing of a declaration demonstrating the effort to resolve the matter informally, Civil Code section 3295 specified no such requirement for purposes of conducting discovery limited to the defendants' financial condition. As a result, the trial court erred in imposing sanctions against Shabazz and his counsel pursuant to Code of Civil Procedure section 2024.050. Because we agree that sanctions were improperly imposed in the first instance, we need not address his further argument regarding his subsequent motion for reconsideration of the trial court's order.
Shabazz Has Failed to Demonstrate Prejudicial Error in the Trial Court's Rulings on his (1) Motions to Quash, Modify or Limit and for Protective Order Concerning a Subpoena to His Current Employer and Request for Sanctions, (2) Motion Concerning Deposition Transcript and Request for Sanctions, and (3) Motion for Sanctions Pursuant to Code of Civil Procedure Section 128.7 and Request for Sanctions.
Shabazz says he had four motions pending at the time of the hearing on Federal Express's summary judgment motion. Without hearing, he says, the trial court advanced and vacated his motions to quash and motion for sanctions under Code of Civil Procedure section 128.7 and denied his motion concerning his deposition transcript so he could not recover the unwarranted expenses he incurred. Citing Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124, Shabazz says, "The failure to exercise discretion is an abuse of discretion." Otherwise, he provides no legal discussion or argument. As he acknowledges, however, the trial court did rule on his motion seeking to bar the use of his deposition transcript; that motion was denied as the trial court determined it was "without merit." Then, after hearing argument on Federal Express's motion for summary judgment and taking the matter under submission, the trial court granted Federal Express's motion and advanced and vacated the future hearing dates on Shabazz's remaining motions, deeming those motions to be moot.
With citations to the record, Federal Express says it immediately withdrew the defective subpoena at issue on the first motion, it filed no opposition to the subsequent motion and no records were produced to Federal Express by Shabazz's employer in any event. Further, Federal Express responded, Shabazz sought sanctions under Code of Civil Procedure section 128.7 for Federal Express's improper filing of "ex parte" communications (Federal Express's notices to the court it had withdrawn the subpoena, rendering Shabazz's motions moot), but noted its proofs of service of such documents in the record. Leaving to one side Shabazz's failures to properly notice his sanctions requests, as Shabazz failed to provide relevant discussion of the record or legal authority supporting his arguments in this regard, we find them to be waived.
Summary Judgment Was Properly Granted.
Shabazz says reversal is required due to prejudicial fundamental procedural errors: (1) lack of access to his deposition transcript; (2) lack of the mandatory 75-day notice; (3) inadequacy of the separate statement; and (4) denial of his request for a continuance as well as on the merits.
Leaving to one side the deficiencies Shabazz notes (as well as the validity of some of his arguments on the merits), the problem for Shabazz is that, in the end, summary judgment was properly granted to the extent his claims are barred by the six-month statute of limitations to which he agreed in signing his employment agreement, signed after acknowledging he had read and understood it as he acknowledged at his deposition.
"It is true California courts have afforded contracting parties considerable freedom to modify the length of a statute of limitations.[] (See, e.g., Hambrecht v. Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1548.) Courts generally enforce parties' agreements for a shorter limitations period than otherwise provided by statute, provided it is reasonable. 'Reasonable' in this context means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy. 'It is a well-settled proposition of law that the parties to a contract may stipulate therein for a period of limitation, shorter than that fixed by the statute of limitations, and that such stipulation violates no principle of public policy, provided the period fixed be not so unreasonable as to show imposition or undue advantage in some way. [Citations.]'[]" (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430 [deprivation of discovery rule impermissible].)
Citing Pellegrino v. Robert Half Internat., Inc. (2010) 181 Cal.App.4th 713, but without further discussion of its application to the facts of this case, Shabazz says the employment agreement he executed is unconscionable and unenforceable. However, review was granted in the Pellegrino case (which involved allegations of violations of wage and hour statutes in violation of public policy) on April 28, 2010 (the month before Shabazz filed his opening brief) and it is not citable.
Moreover, to the extent Shabazz did file one administrative complaint on December 13, 2005, within six months of his termination on July 8, 2005, he failed to mention the termination. He said the "[d]ate of most recent or continuing discrimination" was December 14, 2004, when he was denied reasonable accommodation (scheduling) due to his disability. He said he requested accommodation on November 9, 2004; he was given performance counseling for punctuality on December 14, 2004; he reminded his supervisor (Castillo) of his request, but Castillo said he could not change the schedule because he had not taken a scheduling class; when he (Shabazz) asked Ms. Williams about reasonable accommodation, she said to wait until Castillo had taken the scheduling class and there was a shortage of couriers; he asked Castillo again in February 2005, and Castillo said he would look into it, but Shabazz was never given reasonable accommodation he said.
On June 28, 2006, Shabazz filed another DFEH complaint, indicating the "[d]ate of most recent or continuing discrimination" was June 28, 2005, when he was denied reasonable accommodation, interactive process and California Family Rights Act leave because of his hernia--still without mention of his termination.
Then on July 7, 2006, he filed another DFEH complaint for disability (diabetes and hernia), indicating the date of most recent or continuing discrimination was July 5, 2005, when he was terminated for improperly refueling his truck because it was his third warning/performance reminder within a 12-month period. From March 31, 2005, through July 8, 2005, he said, he was subjected to differential treatment. On or about June 1, 2005, he was denied reasonable accommodation. On June 28, 2005, he said, he was denied reasonable accommodation. He was required to work although he had previously told Castillo he had a hernia surgery appointment that day. On July 8, 2005, he was terminated but said the reason given was a pretext because he previously requested reasonable accommodation, never falsified his timecard and other couriers had put the incorrect fuel in a truck without being terminated.
On July 7, 2006, he filed another DFEH complaint stating he was subjected to differential treatment on July 8, 2005, on the basis of his race (African-American) and sex (male) without further explanation.
Given the deficiencies in his claims, summary judgment was properly granted.
Shabazz Has Failed to Establish Error in the Trial Court's Award of Costs to Federal Express.
Federal Express filed a memorandum of costs totaling $10,783.64. Shabazz filed a motion to strike and/or tax costs, and Federal Express filed opposition. After hearing argument and taking the matter under submission, the trial court granted Shabazz's motion only to the extent it struck costs totaling $552.23 Federal Express had voluntarily withdrawn.
Citing Christiansburg Garment Company v. EEOC (1978) 434 U.S. 412, 421, and this court's decision in Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387, Shabazz says the trial court erred in denying his motion to strike and/or tax costs "in the absence of an express finding of lack of merit and the plaintiff's ability to pay." We disagree.
In Cummings, supra, 11 Cal.App.4th 1383, the FEHA plaintiff challenged an award to the prevailing defendant of $60,318.50 in attorney's fees and $3,049.95 in costs, and we said, "The standard a trial court must use in exercising its discretion in awarding fees and costs to a prevailing defendant was set forth in the Supreme Court's decision in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412." (Cummings, supra, 11 Cal.App.4th at p. 1387, italics added.) Because the plaintiff's age discrimination claim could not be deemed frivolous, unreasonable or groundless, we concluded the "award of fees and costs" to the prevailing defendant was an abuse of discretion. (Cummings, supra, 11 Cal.App.4th at p. 1390.)
However, as the courts in Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681, and Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 135136, subsequently noted, the Christiansburg case addressed the recovery of attorney fees only, and not an award of costs: "In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." (Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at p. 421, italics added.) As recognized in Perez, supra, 111 Cal.App.4th 671, 680-681, citations omitted, several federal courts thereafter had expressly distinguished the Christiansburg test for the recovery of defense attorney fees from the analysis applicable to the recovery of ordinary litigation expenses: "'The rationale for this distinction is clear. Whereas the magnitude and unpredictability of attorney's fees would deter parties with meritorious claims from litigation, the costs of suit in the traditional sense are predictable, and, compared to the costs of attorneys' fees, small.'"
This appeal involves an award of costs only; we are not addressing an attorney fee award. Code of Civil Procedure section 1032, subdivision (b), states: "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." Pursuant to Government Code section 12965, subdivision (b), "the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs [except where the action is filed by a public agency or public official acting in an official capacity]." Accordingly, as articulated in Perez and Knight, contrary to Cummings, we agree that the Christiansburg standard applicable to the recovery of attorney fees does not extend to the recovery of ordinary litigation expenses; rather, we agree that "ordinary litigation expenses are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable." (Perez, supra, 111 Cal.App.4th at p. 681; Knight, supra, 132 Cal.App.4th at p. 135.) Consequently, Shabazz's reliance on this ground is misplaced.
Further, as we observed in Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129, nothing in Code of Civil Procedure section 1032 grants the trial court discretion to reduce the amount of reasonable costs recoverable as a matter of right based on a claim of inability to pay, and the trial court rejected Shabazz's "bare assertions" that he was unable to pay in any event. Shabazz has failed to identify any basis on which to find the cost award to constitute prejudicial error.
Without citation to any legal authority or further discussion, Shabazz says recovery in the amount of $6,745.50 for his three-day videotaped deposition was "outrageous" and that Federal Express sought other expenses "which were not allowed by law such as messenger expenses, photocopying, court call, travel expense, parking, fax filing." The taking, videotaping and transcribing of necessary depositions is expressly allowed by statute (Code Civ. Proc., § 1033.5, subd. (a)(3)), and items not expressly mentioned may be allowed in the discretion of the court (Code Civ. Proc., § 1033.5, subd. (c)(4)), but Shabazz has simply failed to demonstrate how the trial court abused its discretion in any respect.
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The Order Granting Federal Express's Motion for Sanctions under Code of Civil Procedure Section 128.7 for Shabazz's Failure to Withdraw His Motion for Reconsideration of the Court's Prior Award of Sanctions Under Code of Civil Procedure Section 2024.050 Should Be Reversed.
As already discussed, the order imposing sanctions pursuant to Code of Civil Procedure section 2024.050 was improper. Accordingly, we reverse the trial court's order awarding sanctions to Federal Express for Shabazz's motion for reconsideration of this ruling.
DISPOSITION
The orders imposing sanctions pursuant to Code of Civil Procedure section 2024.050 and granting Federal Express's motion for sanctions under Code of Civil Procedure section 128.7 on the basis of Shabazz's motion for reconsideration of the sanctions imposed under Code of Civil Procedure section 2024.050 are reversed. In all other respects, the judgment and orders are affirmed.
Each side is to bear its own costs of appeal.
WOODS , J.
We concur:
PERLUSS, P. J.
JACKSON, J.