Francine M Arthur vs. Disneyland Resort

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.October 31, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carney R. Shegerian, Esq., State Bar No. 150461 CShegerian@ Shegerianlaw.com Anthony Nguyen, Esq. State Bar No. 259154 ANguyen@Shegerianlaw.com Aaron Gbewonyo, Esq., State Bar No. 315889 AGbewonyo@shegerianlaw.com SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Boulevard, Suite 700 Santa Monica, California 90401 Telephone Number: (310) 860-0770 Facsimile Number: (310) 860-0771 Attorneys for Plaintiff, FRANCINE M. ARTHUR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL DISTRICT FRANCINE M. ARTHUR, Plaintiff, VS. DISNEYLAND RESORT, WALT DISNEY PARKS AND RESORTS U.S., INC., THE WALT DISNEY COMPANY, ERIC QUEZADA, and DOES 1 to 100, inclusive, Defendants. r N N N N N N e N e N e N N N e N e N e Case No.: 30-2016-00884013-CU-WT-CJC The Honorable Melissa R. McCormick PLAINTIFF FRANCINE M. ARTHUR’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CARNEY R. SHEGERIAN; EXHIBITS (Filed Concurrently With Proposed Order) Date: March 28, 2019 Time: 1:30 PM Dept.: C13 Action Filed: October 31, 2016 RES ID: 12959208 PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 28, 2019, at 1:30 p.m., in Department C13 of this Court, at 700 Civic Center Drive West, Santa Ana, California, plaintiff, Francine Marie Arthur, will and hereby does move the Court for an order striking and/or taxing the costs of defendants Disney Resort, Walt Disney Parks and Resorts U.S. INC, The Walt Disney Company, and Eric Quezada. ("defendants" or "Disney") submits in its Memorandum of Costs, which was filed on December 19, 2018. This motion is made pursuant to California Code of Civil Procedure section 1033.5 and California Rule of Court 3.1700, on the grounds that defendants (1) seek to recover costs that were not reasonably necessary to the conduct of litigation; (2) seeks to recover costs that would have been accrued regardless of the fact that defendant Disney is a named defendant; and (3) seeks to recover costs that are not reasonable in amount. Further, plaintiff also hereby moves to strike all of defendants’ costs pursuant to the California Supreme Court's decision in Williams v. Chino Valley Independent Fire Dist., 2015 Cal. LEXIS 2485. Alternatively, plaintiff moves to tax defendant's costs as follows: 1. Item No. 1, for "Filing and motion fees" totaling $2,844.50, must be taxed; 2. Item No. 4, for "Deposition costs" totaling $5,500.10, must betaxed; 3. Item No. 14, for "Fees for electronic filing or service" in the amount of $34.35, must be taxed. 1 1 1 1 1 1 1 1 2- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is based upon this notice, the Memorandum of Points and Authorities and Declaration of Carney R. Shegerian in support thereof, the papers and pleadings on file herein, and such oral and documentary evidence as may be presented to the Court at the time of the hearing on the motion. Dated: January 7, 2019 SHEGERIAN & ASSOCIATES, INC. Attorneys for Plaintiff, FRANCINE MARIA ARTHUR 3 PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. TABLE OF CONTENTS Page INTRODUCTION ....ccooiiiiiieeieeeiieeeestte estes eee estes setae estas snsaaessaeennnee esse ensseenes 1 PROCEDURAL HISTORY ....ooiitieiiieiececeee2 ARGUMENTcoossate sate sae sabe sbeebs t eee saees 3 A. Costs Are Not Authorized Against a Plaintiff in a FEHA Case Absent a Showing that the Case Was “Objectively Without Foundation.”....................... 3 B. Defendants Have Failed to Provide Adequate Itemization. .........ccccceeveuveeennnnnn. 7 C. Even If Defendants Are Entitled to Costs, and They Should Not Be, Such Costs Must Be Taxed for Being Improper and Unsubstantiated.......................... 7 (1) C.C.P. § 1033.5 Provides a Limited Scope of Recovery.........ccceeverinunnne. 8 (2) Item No. 1-Filing and Motion Fees ........c.cccceeviiirniiiiiiiiiiiieeecieeeee 9 (3) Item NO. 4-DepoSition COSLS .....cccvvueerriieeiiieeeiieeeeteeeeiee ee sie ee eeeeeseee ens 10 (4) Item No. 14-Fee for electronic filing Or SEIVICe.......ceevvvreerrieerriiieeeneen. 10 (5) Item NO. 12-Other....oooviiiiiiiiiieeeeeeeeeeeeeeeeeeeeeeeeeeveeaeaeaes 10 D. Plaintiff’s Motion Is Timely. .......c.ccccceerriieiiiiiiieiiecieeeeceeeee 11 E. Plaintiff Is Indigent and Cannot Pay Any Cost Award. ........c.cccceevvueerriiieennne. 11 CONCLUSION...tetasetest estes sbe enna esaees 11 -- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page Cases Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370 ..c...eiiiiiiiieeeeee ee8,9 Bach v. County ofButte (1989) 215 Cal.App.3d 294 .....cooiiiiieeeee ee9 Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 .....ooveeeeoiiieieeeee eeeeee, 4 Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293 ......ooiiiiiiiieeee, 6 Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383 ......ccoeiviiiiiiiiiieen, 4 Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436 .......uuumeeeeeeeeeeeeens 8 eBay Inc. v. Kelora Sys. LLC (N.D. Cal. Apr. 5, 2013) 2013 U.S. Dist. LEXIS 1402736.eeeeeeeat ete teat teehee eh te eh te eh beeabeeabe ea beatae at tebe e tee nh te ehaeshbesnbe sabe ens 7 Ellis v. Grant Thornton LLP (4th Cir. 2011) 434 Fed.AppX. 232 ....coiviiiiieniieeenieeeiieens 6 Ferko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238 ........cccceeennneen. 8 Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66............ccccovvieiiiiiiiiieiiiieee eevee, 6 Holmes v. Cessna Aircraft Co. (5th Cir. 1994) 11 F.3d 63 ......ooviiiieiieeeeecece, 6 Ladas v. California State Auto Ass'n (1993) 19 Cal.App.4th 761 .......cccvvviiieiiieiieens 9 Melnyk v. Robledo (1976) 64 Cal.App.3d 618 ......eoiiiiieiie ee9 Nelson v. Anderson (1999) 72 Cal.App.4th 111 ....ccoiviiiiiiiiieen9 Oak Grove School Dist. ofSanta Clara County v. City Title Ins. Co. (1963) 217 CalLAPDP.2A O78...eeeetceteraessa sate sateen 8 Rosenman v. Christensen, Miller, et al. (2001) 91 Cal.App.4th 859 ......cevvviiiiiiiiiiinen. 2 Stanley v. Univ. ofSo. Cal. (9th Cir. 1999) 178 F.3d 1069........ccccovviiiiiiiiiieeeieee eee, 6 Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188 .......covviiiiiiiiiiiieeeeieee 2 Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97 ...........ccuueee... 1,3,5,7 Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467 ......ccoveiiiiiiiiiiiieeieeeieee 2 Statutes Code of Civil Procedure § 1013...coorsesseeevee ease eee 11 Code of Civil Procedure § 1032......ccooviimimieeieieieeeeeeeeeeeevee3,5,8 Code of Civil Procedure § 1033.5...cocoaeeeeevee 7,8,9, 10 ic PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code of Civil Procedure § D0eee3, 5 Government Code §8§ 12900-12996..........uuuuoeeeiiiiiiiiieeeeeeeeeeeeeee eeveepassim Labor Code § T102.5.eeeeeeeeeeeeeessereaes 1,2,6,1 Rules California Rules of Court, Rule 3.1700(b)(1)...cccoviiiiiiiiiiiiiiiii 11 -iii- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION Plaintiff, Francine Marie Arthur, hereby moves to strike all of defendants’ costs claimed in their Memorandum of Costs, in the amount of $13,653.95, associated with her wrongful termination of employment in violation of public policy-based case, including violation of labor code § 1102.5, violation of FEHA, Government code section § 12900 against entity defendants; intentional infliction of emotional distress against all defendants; and violation of § 1102.5 against entity defendant, because defendants’ costs are impermissible. (See Exh. 1, Memorandum of Costs.) First, it is entirely unclear which costs are specific to which of the defendants. Second, Defendants provide zero proof of documentation or otherwise that they actually incurred these costs, as required under the Code of Civil Procedure section 1033.5(c)(1). Third, Defendants completely ignore the California Supreme Court’s decision in Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97, which states clearly and unequivocally, “Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party.” Williams at 105. The California Supreme Court made it clear in Williams that the standardfor recovering costs is the same as for attorneys’ fees, i.e., in order to recover litigation costs, the prevailing defendant must prove that the case was “objectively without foundation when brought, or the plaintiff continued to litigate after it became so.” Id. at 115. Without a showing to the contrary, costs cannot be awarded to defendants. Although this is not a FEHA case, the same public policy applies in its application. In the event that the Court finds this matter “objectively without foundation,” and it should not, plaintiff moves to tax defendants’ costs in the amount of $13,653.95. Defen- dants impermissibly seek numerous costs that are not authorized by law, and this requires that their Memorandum of Costs be taxed significantly. Plaintiff hereby asks that the PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court tax and/or strike the following itemized costs that defendants claim in their memo- randum: 1. Item No. 1, for “Filing and motion fees” in the amount of $2,844.50; 2. Item No. 4, for “Deposition costs” in the amount of $5,500.10; 3. Item No. 16, for “Other” in the amount of $5,275.00. Accordingly, this Court should strike all of defendants’ Memorandum of Costs. In the alternative, this Court should tax defendants’ Memorandum of Costs in the amount of $13,653.95 for defendants’ unauthorized and unreasonable costs. Finally, to the extent that the Court finds that defendants are entitled to costs, the Court must allow plaintiff the opportunity to provide information regarding her ability to pay, as an award of costs or fees should not subject plaintiff to financial ruin. See Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467; Rosenman v. Christensen, Miller, et al. (2001) 91 Cal.App.4th 859; Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188. Accordingly, this Court should strike all of Defendants’ Memorandum of Costs. In the alternative, this Court should tax defendants’ Memorandum of Costs in the amount of $13,653.95 for defendants’ unauthorized and unreasonable costs. Finally, plaintiff should not be required to pay costs at all in light of her inability to pay. 2. PROCEDURAL HISTORY This action was filed against defendants on October 31, 2016, alleging three causes of action intertwined under the same nucleus of operative facts, comprising of wrongful termination of employment in violation of public policy, whistle-blower retaliation under Labor Code section 1102.5, and intentional infliction of emotional distress. See Declaration of Declaration of Carney Shegerian (“‘Shegerian Dec.,”) § 2. On or about November 1, 2018, plaintiff’s Complaint was dismissed by way of summary judgment. The Court found that defendants, Disney “presented evidence demonstrating its reasons, unrelated to discrimination, for terminating Arthur.” Further, “Disney presented evidence demonstrating that it was not possible to accommodate 2- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 several of Arthur’s permanent work restrictions and that there were no suitable 2alternative positions available.” Additionally, “Arthur has not presented evidence that Quezada’s alleged ‘regular harsh treatment’ continued past February 2014 when Arthur began a medical leave.” Accordingly, “Because Arthur filed suit on October 31, 2016, the two-year statute of limitations bars an emotional distress claim based on Quezada’s conduct.” (See Exh. 2, Court’s Ruling on Defendants’ Motion for Summary Judgment.) Defendants then served their Memorandum of Costs by mail on December 19, 2018. 3. ARGUMENT A. Costs Are Not Authorized Against a Plaintiff in a FEHA Case Absent a Showing that the Case Was “Objectively Without Foundation.” FEHA is specifically exempt from “prevailing party” determinations under Code of Civil Procedure section 1032 and even section 998. We conclude Government Code section 12965(b) is an express exception to Code of Civil Procedure section 1032(b) and the for- mer, rather than the latter, therefore governs cost awards in FEHA cases. The FEHA statute expressly directs the use of a different standard from the general costs statute: Costs that would be award- ed as a matter of right to the prevailing party under Code of Civil Procedure section 1032(b) are instead awarded in the discretion of the trial court under Government Code section 12965(b). By mak- ing a cost award discretionary rather than mandatory, Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandatefor a cost award to the prevailing party. Williams v. Chino Valley Ind. Fire District, supra, 61 Cal.4th at 105. (Emphasis added.) The law is now clear that a “prevailing” defendant in a FEHA case is not automatically entitled to litigation costs. Williams, supra, at 105. In fact, Code of Civil Procedure section 1032, et al., does not apply to FEHA cases. Id. The determination of costs under FEHA is made pursuant to Government Code section 12965(b). Since at least 1992, it has been clear that a prevailing defendant under FEHA is entitled to attorneys’ fees only under certain circumstances-because the language, purpose, and intent of California and federal anti-discrimination acts are virtually 3 PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 identical. In interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under Title VII of the federal Civil Rights Act. See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-1387. Thus, 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, and reaffirmed in Cummings. The Cummings court, while applying the standard set forth in Christiansburg, held that, because a plaintiff who brings an anti-discrimination suit does so in the role of a private attorney general to vindicate a policy that Congress considered of the highest priority, a prevailing plaintiff ordinarily should recover attorneys’ fees unless special cir- cumstances render such an award unjust, so that a plaintiff of limited means has an easier time of bringing a meritorious suit. Cummings at 1387, citing Christiansburg at 416- 418. The court went on to point out that the aforementioned equitable considerations were entirely absent, however, in the case of a prevailing defendant and that therefore the standard should be entirely different. Cummings at 1387, citing Christiansburg at 421. As such, the standard the court ultimately adopted and that is supported by legis- lative history directed that “such awards should be permitted, not routinely, not simply because he succeeds, but only where the action is found to be unreasonable, frivolous, meritless or vexatious.” Id. (emphasis added). The court further defined the term “meritless” as understood to mean groundless or without foundation, rather than simply that the plaintiff ultimately lost his case. Id. Finally, the court cautioned that, in apply- ing these criteria,it is important that a district court, the Superior Court in this situation, resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff ultimately did not prevail, his action must have been unreasonable or without foundation;this type of reasoning could have a chilling effect of discouraging all but the most airtight claims, “for seldom can a prospective plaintiff be sure of ultimate success.” Id. (emphasis added). 4- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, while the standard for fees has been set for several years, there was a split in authority on whether the same standard would apply to litigation costs. The California Supreme Court recently answered that question in the affirmative in deciding Williams, which clarified that the same analysis that applies to attorneys’ fees also applies to liti- gation costs, such as the ones sought by defendant here. Williams held: “Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party.” Id. at 105 (emphasis added). Therefore, it is all or nothing now for a defendant in a FEHA case. Here, there was no finding that the case was unreasonable, frivolous, meritless, or vexatious, nor can there be. As it relates to plaintiff’s IIED claim, defendants concede, and the Court did not deny that actions taken by individual defendant, Eric Quezada (“Quezada”), did not constitute extreme and outrageous conduct actionable under ITED. Rather, the court determined, “Arthur has not presented evidence that Quezada’s alleged ‘the regular harsh treatment’ continued past February 2014 when Arthur began a medical leave.” The Court furthered that “Because Arthur filed suit on October 31, 2016, the two-year statute of limitations bars emotional distress based on Quezada’s conduct.” Therefore, it was not a matter of the legitimacy of plaintiff’s claims, but rather that the court determined that they were time-barred. What’s more, plaintiff’s [IED cause of actions was inextricably intertwined and stem from defendants’ violation of FEHA. Plaintiff’s IIED claim stems from defendants’ discrimination, harassment, and failure to accommodate her disability, of which defendants had actual notice of. Although the claims pled were not under FEHA, the crux of plaintiff’s case was discrimination, harassment, and retaliation under FEHA. Therefore, the FEHA Standard Should Apply to IED Claim, and the Court Should Exercise Its Discretion to Deny Defendants’ Bill of Costs.Should this Court consider defendants’ application on the merits, the Court should deny it. The Court “has the Section 998 offers to compromise specifically depend on Code of Civil Procedure section 1032. -5- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discretion to deny an award of costs” where “there would be an element of injustice in a presumptive cost award.” Ellis v. Grant Thornton LLP (4th Cir. 2011) 434 Fed.Appx. 232, 235. A court may deny an award of costs where “severe injustice” will result. Stanley v. Univ. ofSo. Cal. (9th Cir. 1999) 178 F.3d 1069, 1079. A district court should consider whether having a losing plaintiff pay costs may chill further litigation. Without litigants “who are willing to test the boundaries of our laws, we would not have made much of the progress that has occurred in this nation.” Stanley at 1080. An award of costs here would have such an effect, as Arthur’s lawsuit advanced important public interests that should not be deterred. Arthur’s lawsuit benefits the public in that she recognized what she believed to be safety concerns for the employees. It is in the public’s interest that whistle-blowers who report illegal or unsafe activities affecting the public not be wrongfully discharged for their actions because such laws cannot be enforced without witnesses. Holmes v. Cessna Aircraft Co. (5th Cir. 1994) 11 F.3d 63, 1418; Nowhere is that more evident than here. Labor Code section 1102.5, upon which Arthur had an independent claim and upon which her claim for wrongful termination of employment in violation of public policy is based, has been held to reflect “the broad public policy interest in encouraging workplace whistle blowers to report unlawful acts without fearing retaliation.” Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 76-77; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301-1302, fn. 1. Similar to plaintiff’s IIED claim, plaintiff’s 1102.5 cause of action is also stem from defendants’ discrimination, harassment, and failure to accommodate her disability, of which defendants had actual notice of. Although the claims pled were not under FEHA, the crux of plaintiff’s case was discrimination, harassment, and retaliation under FEHA. Therefore, the FEHA Standard Should Apply to plaintiff’s 1102.5 claim, and the Court should exercise its discretion to deny defendants’ bill of costs. Further, the interests of justice require that costs not be awarded to defendants. 1 -6- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Defendants Have Failed to Provide Adequate Itemization. “Invoices and [an] itemized spreadsheet . .. were not specific enough to permit the taxation of . . . costs” because they contained generic statements such as “[d]Jocument production.” Vague documentation meant that the reviewing court could not determine what documents were being produced and to what party. Thus, a bill of costs must represent a calculation that is reasonably accurate under the circumstances. eBay Inc. v. Kelora Sys. LLC (N.D. Cal. Apr. 5, 2013) 2013 U.S. Dist. LEXIS 1402736 (internal quotation marks and citations omitted). Defendants have included only a line item total for each category of costs for which they seek reimbursement and receipts. On each receipt defendants submitted, there are various descriptions of services rendered with various amounts. Defendants have failed to specify which portion of each receipt they are seeking to be reimbursed for, leaving Arthur to guess as to which categories of costs defendants are trying to hold her accountable for. Accordingly, Arthur requests that this Court deny defendants’ application. C. Even If Defendants Are Entitled to Costs, and They Should Not Be, Such Costs Must Be Taxed for Being Improper and Unsubstantiated. Although plaintiff submits that this Court should deny all costs pursuant to Williams, in the unlikely event that the Court decides that defendants are entitled to some costs, such costs would be limited to those enumerated under Code of Civil Procedure section 1033.5(a) and subject to the parameters set forth in Code of Civil Procedure section 1033.5(c), which limits recovery to costs that are, among other things, actually incurred, reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and reasonable in amount. Code of Civil Procedure § 1033.5(c)(1-3). In other words, even if an item is specifically listed as an allowable cost under Code of Civil Procedure section 1033.5(a), the Court still must have discretion and must decide whether the costs were actually incurred, reasonably necessary to the conduct of the litigation, and reasonable in amount. Additionally, once 2,9a “prevailing party’s” costs are properly objected to, those costs are put in issue, and the -7- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 burden of proof is upon the “prevailing party” to establish entitlement to each and every one of those costs. See Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698. (1) C.C.P. § 1033.5 Provides a Limited Scope of Recovery. Section 1033.5 of the Code of Civil Procedure provides a clearly enumerated list of allowed and disallowed costs. See C.C.P. § 1033.5(a), (b). However, even with the costs that are specifically allowed in subdivision (a), Code of Civil Procedure section 1033.5(b) requires that any award of costs be (1) reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and (2) reasonable in amount. See Code of Civil Procedure § 1033.5(¢)(2), (3). In other words, even when the prevailing party lists a cost that undoubtedly falls within one of the categories listed in subdivision (a), such as an ordinary filing fee, the Court still has to decide whether the cost were reasonably necessary to the conduct of litigation and whether it were reasonable in amount and, ultimately, can decide not to allow it. Code of Civil Procedure § 1033.5(c); Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 422. Furthermore, Code of Civil Procedure section 1033.5(a) provides a list of items that are allowable as costs under Code of Civil Procedure section 1032, and section 1033.5(b) provides a list of items that are not allowable as costs. As such, the Court has no discretion to allow costs for an item listed under subdivision (b), and a prevailing party who seeks to recover costs for these specific items must be denied. See Code of Civil Procedure § 1033.5(b). Moreover, items not specifically mentioned as allowable under subdivision (a) or prohibited under subdivision (b) are to be assessed upon application and may be allowed or denied in this Court’s discretion. See C.C.P. § 1033.5(c)(4); Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1379. Hence, the Court can disallow even costs “allowable as a matter of right” if they were not reasonably necessary and may reduce the amount of any cost item to what is reasonable. Ferko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245. Again, these costs are still subject to the requirement that they be -8- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 actually incurred, reasonably necessary to the conduct of litigation, and reasonable in amount. See C.C.P. § 1033.5(c)(1-3). Once items appearing on a memorandum of costs are challenged, as they are here, they are put at issue, and the burden of proof is on the prevailing party to prove that they are (1) allowable by statute, (2) reasonably necessary to the litigation, and (3) reasonable in amount. Ladas v. California State Auto Ass'n (1993) 19 Cal.App.4th 761, 774; Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624. The “mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful or which does not appear to be proper on its face.” Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131. Moreover, once items appearing in a memorandum of costs are challenged, “documentation must be submitted” to sustain the burden on the party requesting the costs. Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308. As a result, defendants not only bear the burden of proof on this motion, but must submit documentation in support of each cost item requested. As is detailed below, defendants have repeatedly overreached in their Memorandum by seeking reimbursement of costs that plainly are disallowed, unnecessary, and/or unreasonable. It is “the trial court’s obligation to review the supporting documents” pro- vided by the party claiming the costs. Acosta, supra, 129 Cal.App.4th at 1380. The trial court then has “a duty to determine whether a cost is reasonable in need and amount.” Id. Here, the Court should tax defendants’ requests for costs that are disallowed, unnecessary, and/or unreasonable, and, to the extent that evidence or information is required to make that determination, the Court should order defendants to provideit. (2) Item No. 1-Filing and Motion Fees Under Item No 1, defendants are seeking recovery of $2,844.50 for “Filing and motion fees.” Defendants provide no supporting documentation or evidence sub- stantiating these costs. For instance, defendants claim a total cost of $2,844.50 for the filing of defendants’ Answer to plaintiff’s Complaint. However, the filing fees are not specific as it relates to the Answers by “TWDC and WDPR”to the defendants claiming 9. PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 them nor are there receipts or invoices evincing these costs. It is unclear who is seeking reimbursement for these costs. The costs associated with an Answer should be taxed in the amount of $2,844.50. 3) Item No. 4-Deposition Costs Under Item No. 4, defendants are seeking recovery of $5,500.10 for “Deposition Costs.” However, the majority of these costs were unnecessary. See Code of Civil Procedure § 1033.5(c)(2), (3). Defendants elected to order a to have videotaping of each of the depositions, resulting in an unnecessary additional cost totaling $2,519.50. If defendants incurred costs, they did so at their own convenience and not out of any necessity. At a minimum, the costs should be taxed $2,519.50 for the costs of videotaping plaintiff’s deposition. Further, there is no supporting documentation or other evidence substantiating these costs, and this supports the position that such costs were not necessary to litigating this case. A total of $5,500.10 of the deposition costs should be taxed. 4) Item No. 14-Fee for electronic filing or service Under Item No. 14, defendants are seeking $34.35 for “Fee for electronic filing or service.” Here, defendant fails to provide supporting documentation or other evidence substantiating these costs, and this supports the position that such costs were not necessary to litigating this case. Thus, the $34.35 for “Service of Process” costs should be taxed. (5) Item No. 12-Other Defendants are seeking $5,275.00 for “Other Costs,” none of which is reasonably necessary for the litigation. Defendants request reimbursement of “mediation fees” amounting to $5,275.00. However, the mediation statutory scheme does not require that those expenses may be awarded as costs. Code of Civil Procedure § 1033.5(b). The $5,275.00 for mediation -10- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fees should be taxed. The total of $5,275.00 for “Other” should be stricken. D. Plaintiff’s Motion Is Timely. Under California Rules of Court, Rule 3.1700(b)(1), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memoran- 2 dum.” The time to file is extended under Code of Civil Procedure section 1013. Here, defendants claim to have served plaintiff served their memorandum on December 19, 2018, by mail. As such, the deadline to file the motion is January 7, 2019. E. Plaintiff Is Indigent and Cannot Pay Any Cost Award. Additionally, Arthur cannot afford to pay any amount of a cost bill. After her employment was terminated, Arthur was unable to secure permanent employment, despite her efforts, and he changed jobs, sometimes working several jobs at a time just to make ends meet. She lives from paycheck to paycheck and has no savings; in fact, she was forced to leave the state of California because she could no longer afford to live in the state. If Arthur is forced to pay any portion of defendants’ cost bill, it will send her into financial ruin. The entity defendants are multi-million-dollar corporations. Accordingly, it is apparent that the cost bill would not pose any undue financial hardship to defendants. 4. CONCLUSION For all of the foregoing reasons, plaintiff, Francine Marie Arthur, respectfully requests that the Court issue an order striking all of defendants’ costs or, in the alternative, taxing defendants’ costs in the amount of $13,653.95. Finally, plaintiff should not be required to pay costs in light of her financial situation. 1H 1H 1H 1H 1H -11- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 7, 2019 SHEGERIAN & ASSOCIATES, INC. vs: Doral Carne§BR. Shegerail: Esq. Attorneys for Plaintiff, FRANCINE MARIE ARTHUR -12- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF CARNEY R. SHEGERIAN I, Carney R. Shegerian, declare as follows: I. Tam an attorney at law, duly authorized to practice law before all of the courts of the State of California. I am the attorney of record for plaintiff, Francine Marie Arthur, in this case. I am familiar with the files, pleadings, and facts in this case and could and would competently testify to the following facts on the basis of my own personal knowledge or information and belief. 2. This action was filed against defendants on October 31, 2016, alleging three causes of action intertwined under the same nucleus of operative facts, comprising wrongful termination of employment in violation of public policy, whistle-blower retaliation under Labor Code section 1102.5, intentional infliction of emotional distress. 3. Attached hereto as Exhibit 1 is a true and correct copy of Defendants’ Memorandum of Costs. 4. Attached as Exhibit 2 is a true and correct copy of the Court’s Notice of Ruling Regarding Defendants’ Motion for Summary Judgment. 5. Although defendants’ Proof of Services indicates that defendants served plaintiff on October 25, 2018, plaintiff did not in fact receive service of defendants’ motion for cost, memorandum of costs (summary) and proposed order until December 19, 2018. I declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on this 7" day of January, 2019, at Santa Monica, California. Dori. CarneyR/ Shegeri DECLARATION OF CARNEY R. SHEGERIAN IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAXCOSTS EXHIBIT 1 MC-010 ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NUMBER: 228115 FOR COURT USE ONLY Name: Sheryl K. Horwitz FiRm NAME: Sidley Austin LLP STREET ADDRESS: 555 West Fifth Street, Suite 4000 cry: Los Angeles STATE: CA zip cope: 90013 TELEPHONE NO. (213) 896-6000 FAX NO. (213) 896-6600 E-MAIL ADDRESS: shorwitz@sidley.com ATTORNEY FOR (name). Disneyland Resort, et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF Orange STREET ADDRESS: 700 Civic Center Drive West MAILING ADDRESS: CITY AND ZIP CODE: Santa Ana, CA 92701 BRANCH NAME: Central Justice Center PLAINTIFF: Francine Arthur DEFENDANT: Disneyland Resort, et al. CASE NUMBER: MEMORANDUM OF COSTS (SUMMARY) 30-2016-00884013-CU-WT-CJC The following costs are requested: TOTALS 1. Filing and motion fees 2,844.50 2. Jury fees Jury food and lodging Deposition costs © 5,500.10 Service of process O o n o w Attachment expenses 7. Surety bond premiums 8. Witness fees 9. Court-ordered transcripts “ P H B H B F P L P B H B P H H P 10. Attorney fees (enter here if contractual or statutory fees are fixed without necessity of a court determination; otherwise a noticed motion is required) 11. Court reporter fees as established by statute 12. Models, enlargements, and photocopies of exhibits 13. Interpreter fees 14. Fees for electronic filing or service 34.35 15. Fees for hosting electronic documents © f H H A P H P H P H 16. Other 5,275.00 TOTAL COSTS $ 13,663.95 | am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. Date: Dec 17, 2018 Sheryl K. Horwitz bp AJ (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANTY L (Proof of service on reverse) Page 1 of 2 Form Approved for Optional Use MEMORANDUM OF COSTS (SUMMARY) Code oSomans Judicial Council of California MC-010 {Rev. September 1, 2017} MC-011 SHORT TITLE Arthur v. Disneyland Resort, et al. CASE NUMBER: 30- 2016-00884013-CU-WT-CJC MEMORANDUM OF COSTS (WORKSHEET) Filing and motion fees Paperfiled Filing fee . a. 12/31/16 Answers by TWDC and WDPR $ 891.25 b. 1/20/17 Answer by Quezada $ 457.25 c. 10/13/17 MSJ by WDPR and Quezada $ 1496.00 d. $ e. 5 f. $ g. [_] Information about additional filing and motion fees is contained in Attachment 1g. TOTAL1. 2. Jury fees Date Fee & mileage a. $ b. $ c. $ d. $ e. [1] Information about additional jury fees is contained in Attachment 2e. TOTAL 2. [§ 3. Juror food: $ and lodging: $ TOTAL3. [§ 4, Deposition costs Name of deponent Taking Transcribing Travel Videotaping Subtotals a. 5/9/17 Francine Arthur $ $ 1617.20 §$ $ 1434.50 $ b. 8/28/17 Francine Arthur $ $ 1363.40 § $ 1085.00 $ Cc. $ $ $ $ $ d. $ $ $ 3 $ e. [7 Information about additional deposition costs is contained in Attachment 4e. TOTAL 4. [3 00.10 (Continued on reverse) Page 1of 4 Form Approved for Optional Use Judicial Council of California MC-011 [Rev. September 1, 2017] MEMORANDUM OF COSTS (WORKSHEET) Code of Civil Procedure, §§ 1032, 1033.5 MC-011 CASE NUMBER:SHORT TITLE 30-2016-00884013-CU-WT-CJCArthur v. Disneyland Resort, et al. 5. Service of process Registered Name of person served Public officer process Publication Other (specify) a. $ $ $ $ b. $ $ $ $ c. $ $ : $ $ a [1 Information about additional costs for service of process is contained in Attachment 5d. TOTALS [FT] B. Attachment expenses (specify): 6. 7. Surety bond premiums (itemize bonds and amounts). 7. rE 8. a. Ordinary witness fees Name of witness Daily fee Mileage Total (Nn days at $/day milesat ¢/mile: EE (2) days at $/day miles at ¢/mile: Fr (3) | days at $/day miles at ¢imile: gg (4) days at $/day miles at ¢/mile: Gg (5) days at $/day miles at ¢/mile: EB 8) [J information about additional ordinary witness fees is contained in Attachment 8a(6). Ge- (Continued on next page) MC-011 [Rev. September1, 2017) : MEMORANDUM OF COSTS (WORKSHEET) Page NY nNof| | MC-011 SHORT TITLE CASE NUMBER: Arthur v. Disneyland Resort, et al. 30-2016-00884013-CU-WT-CJC 8. b. Expert fees (per Code of Civil Procedure section 998) Name of witness Fee (1) hours at $ /hr (2) hours at $ /hr (3) hours at $ /hr (4) hours at $ /hr (5) [_] Information about additional expert fees is contained in Attachment 8b(5). r_ F___ c_____ E__ SUBTOTAL SbF] ¢. Court-ordered expert fees Name of witness Fee (1) hours at § /hr 2) hours at $ /hr (8) [7] Information about additional court-ordered expert fees is contained in Attachment 8¢(3). FEF] FE] SUBTOTAL 8efS| TOTAL (8a, 8b, & 8c) 8 9. Court-ordered transcripts (specify). 10. Attorney fees (enter here if contractual or statutory fees are fixed without necessity of a court determination, otherwise a noticed motion is required): 11. Models, enlargements, and photocopies of exhibits (specify): 12. Court reporter fees (as established by statute) a. (Name of reporter): Fees: § NN E- to[fT] b. (Name of reporter): Fees: $ TOTAL 12.[8 ¢. [1] information about additional court-reporter fees is contained in Attachment 12c. 13. Interpreter fees a. Fees of a certified or registered interpreter for the deposition of a party or witness (Name of interpreter): Fees: $ (Name of interpreter): Fees: $ p. Fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project or a pro bono attorney (Name of interpreter): Fees: § (Name of interpreter): Fees: $ TOTAL 13. [1] c. [_] Information about additional court-reporter fees is contained in Attachment 13c. 14. Fees for electronic filing or service of documents through an electronic filing service provider (enter here if required or ordered by the court); 15. Fees for hosting electronic documents through an electronic filing service provider (enter here if required or ordered by the court): 16. Other (specify). 11/1/17 Mediation 14 2- 16. [$ 5275.00 TOTAL COSTS $ 13,653.95 (Additional information may be supplied on the reverse) MC-011 [Rev. September 1, 2017] MEMORANDUM OF COSTS (WORKSHEET) Page 3of 4 MC-011 SHORT TITLE Arthur v. Disneyland Resort, et al. CASE NUMBER; 30-2016-00884013-CU-WT-CJC 1 1. 6/27/17 Onelegal $9.95 2 2. 5/1/18 Onelegal $12.20 3 3. 5/4/18 OneLegal $12.20 4 [Total $34.35 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 MC-011 [Rev. September 1, 2017) MEMORANDUM OF COSTS (WORKSHEET) Page 4o0f 4 EXHIBIT 2 ~ ~ c o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Douglas R. Hart (SBN 115673) dhart@sidley.com Sheryl K. Horwitz (SBN 229115) shorwitz@sidley.com Rachel R. Goldberg (SBN 308852) rachel.goldberg@sidley.com SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013 Attorneys for Defendants DISNEYLAND RESORT; WALT DISNEY PARKS AND RESORTS U.S., INC.; THE WALT DISNEY COMPANY, and ERIC QUEZADA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE -~ CENTRAL DISTRICT FRANCINE M. ARTHUR, Case No. 30-2016-00884013-CU-WT-CIC Plaintiff, Assigned to the Hon. Melissa R. McCormick Vv. NOTICE OF RULING DISNEYLAND RESORT; WALT DISNEY PARKS AND RESORTS U.S. INC; THE Date: November 1, 2018 WALT DISNEY COMPANY; ERIC Time: 1:30 p.m. QUEZADA; and, DOES 1 to 100, inclusive, Dept.: ok Defendants. Trial: January 14, 2019 Dept.: C13 Complaint Filed: October 31, 2016 237364318. NOTICE OF RULING, CASE NO. 30-2016-00884013-CU-WT-CJC ~ ~ n b c o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that the Motions for Summary Judgmentor, in the Alternative, Summary Adjudication of Claims of Defendants DISNEYLAND RESORT; WALT DISNEY PARKS AND RESORTS U.S., INC.; THE WALT DISNEY COMPANY, and ERIC QUEZADA (collectively “Defendants”) came on for hearing before the above-entitled Court on November 1, 2018, at 1:30 p.m. in Department C13 before the Hon. Melissa R. McCormick. Sheryl K. Horwitz appeared on behalf of Defendants. Aaron Gbewonyo appeared on behalf of Plaintiff Francine Arthur. Upon review of the moving papers and oral argument, the Court ruled as follows: 1. Defendants Disneyland Resort; Walt Disney Parks and Resorts U.S., Inc.; and The Walt Disney Company’s Motion for Summary Judgment is granted. 2. Defendant Eric Quezada’s Motion for Summary Judgmentis granted. 4. Defendants to submit a proposed judgment by November 13, 2018. 3. Defendants are ordered to give notice of the Court’s ruling. A true and correct copy of the Court’s November 1, 2018, Minute Order is attached hereto as Exhibit A. Dated: November 8, 2018 SIDLEY AUSTIN LLP By:/s/ Shervl K. Horwitz Sheryl K. Horwitz Attorneys for Defendants DISNEYLAND RESORT, WALT DISNEY PARKS AND RESORTS U.S., INC, THE WALT DISNEY COMPANY and ERIC QUEZADA ] NOTICE OF RULING, CASE NO. 30-2016-00884013-CU-WT-CIC EXHIBIT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 11/01/2018 TIME: 01:30:00 PM DEPT: C13 JUDICIAL OFFICER PRESIDING: Melissa R. McCormick CLERK: Eric Yu REPORTER/ERM: (ACRPT) Jane Hong CSR# 11975 BAILIFF/COURT ATTENDANT: Shanon Howard CASE NO: 30-2016-00884013-CU-WT-CJC CASE INIT.DATE: 10/31/2016 CASE TITLE: ARTHUR vs. DISNEYLAND RESORT CASE CATEGORY: Civil - Unlimited CASE TYPE: Wrongful Termination EVENT ID/DOCUMENT ID: 72865106 EVENT TYPE: Motion for Summary Judgment and/or Adjudication MOVING PARTY: DISNEYLAND RESORT, THE WALT DISNEY COMPANY, WALT DISNEY PARKS AND RESORTS U.S., INC. CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment/Adjudication, 10/13/2017 EVENT ID/DOCUMENT ID: 72865107 EVENT TYPE: Motion for Summary Judgment and/or Adjudication MOVING PARTY: ERIC QUEZADA CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment/Adjudication, 10/13/2017 APPEARANCES CECILLIA SON, from Shegerian & Associates, present for Plaintiff(s). SHERYL K. HORWITZ, from Sidley Austin LLP, present for Defendant(s). Tentative Ruling posted on the Internet . The Court hears oral argument and confirms the tentative ruling as follows: Defendants Disneyland Resort, Walt Disney Parks and Resorts U.S., Inc. (WDPR), and The Walt Disney Company move for summary judgment of Plaintiff Francine M. Arthur's claims against them or, in the alternative, for summary adjudication. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Civ. Proc. Code § 437c(c). For the following reasons, Defendants’ motion for summary judgment is granted. As an initial matter, Defendants Disneyland Resorts and The Walt Disney Company's motion for summary judgment is granted. Undisputed evidence shows that neither entity employedArthur. See Plaintiff's Responsive Separate Statement Nos. 2, 5, 6, 7. In her first causeaction, Arthur alleges that Defendants wrongfully terminated her in violation of public DATE: 11/01/2018 MINUTE ORDER Page 1 DEPT: C13 | Calendar No. CASE TITLE: ARTHUR vs. DISNEYLAND RESORT CASE NO: 30-2016-00884013-CU-WT-CJC policy by allegedly terminating her due to disability, age, race, and in violation of California Labor Code § 1102.5. To prove a claim for wrongful termination in violation of public policy, a plaintiff must demonstrate that (1) the plaintiff was employed by the defendant; (2) the defendant discharged the plaintiff; (3) the alleged violation of public policy was a substantial motivating reason for the plaintiff's discharge; and (4) the discharge caused the plaintiff harm. CACI 2430. A prima facie case for disability discrimination under the Fair Employment and Housing Act (FEHA) requires a plaintiff to show: (1) she suffers from a disability; (2) she is otherwise qualified to do her job; and (3) she was subjected to adverse employment action because of her disability. Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-45. If a plaintiff establishes her prima facie case, the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. /d. at 352. California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying discrimination claims. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354. At trial, the so-called McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. /d. If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. /d. at 355. At this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for legitimate, nondiscriminatory reason. Id. at 355-56. If the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff then must have the opportunity to attack the employer's proffered reasons as pretexts for discrimination or to offer any other evidence of discriminatory motive. /d. at 356. The McDonnell Douglas test was priginally developed for use at trial, not in summary judgment proceedings. Arteaga, 163 Cal.App.4th at 343-44. A defendant employer's motion for summary judgment slightly modifies the order of these showings. Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th™1088, 1097. If, as here, the summary judgment motion relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. /d. at 1097-98. To defeat the motion, the employee then must adduce or point to evidence raising a triable issue that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. /d. at 1098; see also Scotch v. The Art Inst. of Cal.-Orange Cty., Inc. (2009) 173 Cal.App.4th 986, 1004-05. Here, WDPR set forth competent, admissible evidence of its reasons, unrelated to discrimination, for terminating Arthur. WDPR presented evidence demonstrating that it was not possible for WDPR to reasonably accommodate several of Arthur's permanent work restrictions and that there were no suitable alternative positions available. See, e.g., Defendants’ Separate Statement Nos. 21, 26, 27, 29, 30 (and evidence cited therein). In light of WDPR’s evidence, Arthur had the burden of rebutting WDPR’s evidence by pointing to evidence thatraises a rational inference that discrimination occurred. See Guz, 24 Cal.4th at 357. Arthur argues that WDPR terminated her due to disability, age, race and in retaliation for making internal complaints. Arthur's purported evidence for this contention is that WDPR had accommodated her in the past, allowing her to work as an “assigner’ hostess, Opp. at 15:2-3, and that her supervisor Eric Quezada was hostile to Arthur based on her disability. Arthur's evidence of past accommodation does not support her contention of pretext for disability discrimination. WDPR’s past accommodation of Arthur was in response to Arthur's then-existing single work restriction, which prevented Arthur from lifting more than ten pounds. See Plaintiff's Separate DATE: 11/01/2018 MINUTE ORDER Page 2 DEPT: C13 | Calendar No. CASE TITLE: ARTHUR vs. DISNEYLAND RESORT CASE NO: 30-2016-00884013-CU-WT-CJC Statement of Additional Facts No. 5 (and evidence cited therein). At the time of Arthur's termination in 2015, it is undisputed that Arthur had nine permanent physical restrictions, including (1) use of a walker or cane; (2) no carrying, lifting, pushing or pulling more than five pounds: (3) no walking on uneven surfaces; (4) no standing or walking for more than thirty minutes per hour; (5) no sitting for more than thirty minutes per hour; (6) no bending for more than fifteen minutes per hour; (7) no kneeling or squatting; (8) no overhead work; and (9) no climbing. See, e.g., Plaintiff's Responsive Separate Statement No. 17 (and evidence cited therein). Arthur has not presented evidence that she could perform the essential functions of her job with or without accommodation. See Nadaf-Rahrov v. Neiman-Marcus Grp., Inc. (2008) 166 Cal.App.4th 952, 976-77. Arthur's purported evidence of discriminatory animus also does not raise a rational inference of pretext for age or race discrimination or retaliation for Arthur's internal complaints. It is undisputed that the WDPR Threshold Committee that ultimately decided to terminate Arthur was not aware of, nor did it consider, Arthur's race, age or any internal complaints when deciding to terminate Arthur. See, e.g., Plaintiff's Responsive Separate Statement No. 29 (and evidence cited therein). Arthur has not presented evidence that WDPR's stated reason for her termination was either false or pretextual, or evidence that WDPR acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude WDPR intentionally discriminated against Arthur based on disability, age, race or prior internal complaints. See Scotch, 173 Cal.App.4th at 1007. Arthur'scausealleges intentional infliction of emotional distress. As a threshold matter, Arthur's claim is not barred by the worker's compensation laws. A plaintiff may pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates the FEHA and also satisfies the elements of the claim. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 945. “A number of California authorities have concluded claims for intentionalinfliction of emotional distress in the employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation.” Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97 (collecting cases). “[W]e are unwilling to abandon the longstanding view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity.” Id. at 101. To establish a claim for intentional infliction of emotional distress, a plaintiff must prove: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51. A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. /d. WDPR contends the two-year statute of limitations for emotional distress claims bars Arthur's claim based on alleged incidents between 2012 and Summer 2013. WDPR thus argues that the only potentially actionable conduct relates to Arthur's May 2015 termination, which was neither “outrageous” nor “extreme.” Arthur asserts that her May 2015 termination supports an emotional distress claim because Quezada’s harsh treatment and singling out of Arthur caused her to fall into a deep depression. Arthur has not met her burden of showing a genuine issue of fact as to her emotional distress claim. Arthur has not presented evidence that Quezada’s alleged “regular harsh treatment” continued past February 2014 when Arthur began a medical leave. Because Arthur filed suit on October 31, 2016, the two-year statute of limitations bars an emotional distress claim based on Quezada’s conduct. Arthur has DATE: 11/01/2018 MINUTE ORDER Page 3 DEPT: C13 Calendar No. CASE TITLE: ARTHUR vs. DISNEYLAND RESORT CASE NO: 30-2016-00884013-CU-WT-CJC not presented any evidence demonstrating extreme or outrageous conduct by WDPR in connection with her March 2015 termination. Nor has Arthur presented evidence of a genuine issue of material fact regarding WDPR's intention to cause, or reckless disregard of the probability of causing, emotional distress to Arthur. Arthur's third cause of action alleges retaliation in violation of section 1102.5. To establish a prima facie case of retaliation in violation of section 1102.5 a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138. WDPR argues that the three-year statute of limitations bars Arthur's claim and, even if it does not, none of Arthur's internal complaints constitutes protected activity under section 1102.5 because pre-2014 the statute protected against retaliation for an employee's “disclosing information to a government or law enforcement agency . . . .” See Cal. Lab. Code, § 1102.5(b) (effective 01/01/2004 to 12/31/2013); Cal. Civ. Proc. Code § 338(a). Arthur apparently concedes this point because she does not address this argument in her opposition. Current section 1102.5 is not retroactive and the statute in effect at the time of the alleged conduct in this case did not protect against internal complaints like those Arthur alleges she made. See Evangelatos v. Superior Ct. (1988) 44 Cal.3d 1188, 1208 (‘common understanding” is that legislative provisions are presumed to operate prospectively and should be so interpreted unless express language or clear and unavoidable implication negatives the presumption). For the foregoing reasons, Defendants’ motion for summary judgment is granted. Plaintiff's and Defendants’ evidentiary objections were not material to the disposition of the motion. Cal. Civ. Proc. Code § 437¢(q). Defendants to give notice and to submit a proposed judgment by November 13, 2018. Defendant Eric Quezada moves for summary judgment of Plaintiff Francine M. Arthur's emotional distress claim against him or, in the alternative, for summary adjudication. For the following reasons, Quezada’s motion for summary judgment is granted. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Civ. Proc. Code § 437c(c). “[T]he pleadings set the boundaries of the issues to be resolved at summary judgment.” Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648. A defendant meets his burden on summary judgment by showing that the plaintiff cannot prove her causes of action or by establishing a complete defense to the plaintiffs causes of action. Cal. Civ. Proc. Code § 437¢(p)(2). The burden then shifts to the plaintiff to show a triable issue of fact material to the causes of action or defense. /d. The two-yearstatute of limitations set forth in California Civil Procedure Code § 335.1 governs causes of action forintentional infliction of emotional distress. Pugliese v. Superior Ct. (2007) 146 Cal.App.4th 1444, 1450. Where a tort involves a continuing wrong, the statute of limitations does not commence running until the date of the last injury or when the tortious acts cease. /d. at 1452. As alleged in Arthur's Complaint, Quezada’s allegedly tortious conduct occurred from Spring 2012 to Summer 2013. Defendant's Separate Statement No. 3; Complaint § 11(a)-(j). It is undisputed that Arthur DATE: 11/01/2018 MINUTE ORDER Page 4 DEPT: C13 Calendar No. CASE TITLE: ARTHUR vs. DISNEYLAND RESORT CASE NO: 30-2016-00884013-CU-WT-CJC and Quezada have had no contact since Arthur began a medical leave in February 2014. Plaintiff's Responsive Separate Statement No. 2 (and evidence cited therein). Arthur filed suit on October 31, 2016. Arthur contends the statute of limitations should not commence running until her termination in May 2015 because Quezada’s treatment of her during her employment was allegedly a significant factor in her injuries and in Defendant Walt Disney Parks and Resorts’ ultimate decision to terminate her. Arthur has not submitted any evidence warranting application of the continuing violation doctrine. The Complaint does not allege any conduct by Quezada after February 2014. See Oakland Raiders, 131 Cal.App.4th at 648 (pleadings set boundaries of issues for summary judgment). Furthermore, Arthur has not presented any evidence demonstrating any conduct by Quezada after February 2014, let alone any allegedly extreme or outrageous conduct. Because Quezada’s alleged conduct occurred more than two years before Arthurfiled suit, Arthur's emotional distress claim against Quezada is time-barred. For the foregoing reasons, Defendant's motion for summary judgment is granted. Plaintiff's and Defendant's evidentiary objections were not material to the disposition of the motion. Cal. Civ. Proc. Code § 437¢(q). Defendant to give notice and to submit a proposed judgment by November 13, 2018. DATE: 11/01/2018 MINUTE ORDER Page 5 DEPT. C13 Calendar No. 10 | 11 12 13} 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ; > I am employed in the County of Los Angeles, State of California. Iam over the age of 18 years and not a party to the within action. My business address is 555 West Fifth Street, Los Angeles, CA 90013. On November 8, 2018, I served the foregoing document(s) described as NOTICE OF RULING on all interested parties in this action as follows: Carney R. Shegerian Attorneysfor Plaintiff, Francine M. Arthur Aaron Gbewonyo Shegerian & Associates 225 Santa Monica Boulevard., Suite 700 Santa Monica, CA 90401 Tel: (310) 860-0770 Fax: (310) 860-0771 "Email: cshegerian@shegerianlaw.com agbewonyo@shegerianlaw.com | (VIA U.S. MAIL)I served theforegoing document(s) by U.S. Mail,as follows: 1 placed true copies of the document(s) in a sealed envelope addressed to each interested party as | shown above. I placed each such envelope with postage thereon fully prepaid, for collection and mailing at Sidley Austin LLP, Los Angeles, California. I am readily familiar with Sidley ‘Austin LLP’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. [ declare under penalty of perjury that the foregoing is true and correct. Executed on November 8, 2018, at Los Angeles, California. yh- Hae Jung Patk) 2 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARTHUR v. DISNEYLAND RESORT, et al. OCSC CASE NO.: 30-2016-00884013-CU-WT-CJC PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am an employee in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 225 Santa Monica Boulevard, Suite 700, Santa Monica, California 90401. On January 7, 2019, I served the foregoing document, described as “PLAINTIFF FRANCINE M. ARTHUR’S NOTICE O OTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CARNEY R. SHEGERIAN; EXHIBITS;,” on all interested arties in this action by placing a true copy thereof in a sealed envelope, addressed as ollows: Douglas R. Hart, Esq. Sheryl K. Horwitz, Esq. Rachel R. Goldberg, Esq. SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013 XI (BY MAIL) As follows: DX] 1 placed such envelope, with postage thereon prepaid, in the United States mail at Santa Monica, California. XI Tam Jeadily familiar” with the firm’s practice of collecting and processing corre- spondence for mailing. Under that practice, it would be Dep. sited with the U.S. ostal Service on that same day, with postage thereon fully prepaid, at Santa Monica, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of Dep. sit for mailing in this affidavit. [] (BY FED EX) I placed such envelope in a designated Federal Express pick-up box at Santa Monica, California. (BY ELECTRONIC MAIL) 1 sent such document via facsimile-mail to the number(s) noted above. [] XI (STATE) I declare, under penalty of perjury under the laws of the State of California, that the above is true and correct. Executed on January 7, 2019, at Santa Monica, California. Jose Castro