Ruling on Submitted Matter

Cal. Super. - 2nd Dist.May 19, 2015

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 11:40:00 AM JUDICIAL OFFICER PRESIDING: Kevin DeNoce COUNTY OF VENTURA VENTURA DATE: 10/05/2021 DEPT: 22 CLERK: Denise Arreola REPORTER/ERM: CASE NO: 56-2015-00467666-CU-OE-VTA CASE TITLE: Zafra vs Salient Security CASE CATEGORY: Civil - Unlimited CASE TYPE: Other employment EVENT TYPE: Ruling on Submitted Matter STOLO APPEARANCES STOLO Stolo The Court, having previously taken the Plaintiffs' Motion to Vacate the Judgment and Defendants' Motion to Tax Costs under submission, now rules as follows: Summary of Rulings: The Court grants Plaintiffs' Motion to Vacate the Judgment pursuant to Code of Civil Procedure section 663. The Judgment and statement of decision will be amended to reflect Adrian's joint and several liability on Plaintiffs' hostile work environment claims award, as well as Plaintiff Dickinson's constructive termination and IIED claims awards. The court denies the Defendants' Motion to Tax Costs in its entirety. Analysis for Plaintiffs' Motion to Vacate the Judgment: Code of Civil Procedure 663 provides, in pertinent part: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. . . ." Defendant is correct to state that this is not the first time these issues are before the Court. In response to the PSOD, Plaintiffs pushed hard to get the Court to impose joint and personal liability on Adrian and Salient, and to find Adrian liable for Salient's damages. In response, Defendant argued that the Court should apportion Defendants' liability. Notably, after the Defendant's 8/6/20 papers making that apportionment pitch to the Court, Plaintiffs did not file a response or make any argument against apportionment. Instead, a month later on 9/9/20, the Court denied Plaintiffs' request and granted VEN-FNR-10.03 MINUTE ORDER DATE: 10/05/2021 Page 1 DEPT: 22 CASE TITLE: Zafra vs Salient Security CASE NO: 56-2015-00467666-CU-OE-VTA Defendant's request; the FSOD did not impose joint and personal liability on Adrian and Salient, but did apportion Defendants' liability amongst Salient, Adrian, and Aaron in specific percentages as outlined. Then, in March Plaintiffs filed basically the same objections on the same grounds to the same issues. Defendant objected as they did previously. The ultimate question is whether Civil Code section 1431.2 can apply here. The purpose of Proposition 51, the Fair Responsibility Act of 1986, was to limit the ability of plaintiffs to recover from deep pockets because of the doctrine of 'joint and several' liability. Section 1431.2 states: "(a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount. (b)(1) For purposes of this section, the term "economic damages" means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. (2) For the purposes of this section, the term "non-economic damages" means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation." (Emphasis added) A defendant seeking a Proposition 51 offset must not only plead comparative fault as an affirmative defense, he also must prove the comparative fault of others, and request that an allocation be made. Here, the Defendants' 11th affirmative defense answered that the "intentional or negligent acts of third parties, including Plaintiff, contributed in whole or in part to the damages sustained..." and then in their 20th affirmative defense, that "any recovery by Plaintiff must be offset by any benefits and/or other monies she has received from Defendants." (Zafra Answer filed on 8/25/2015; 11th and 25th affirmative defenses in the Garner and Dickinson cases, filed on 4/11/2016 and 5/31/2016.) On 7/31/2019, Adrian Chavez individually answered the FACs and maintained the same defenses. Regardless as to whether Defendants plead and asserted comparative fault as an affirmative defense, section 1431.2 does not apply here. Notably, Adrian's liability for all the relevant claims (hostile work environment, constructive termination, and IIED) was based upon his own intentional actions as well as his aiding and abetting the conduct of Aaron. Aiding and abetting requires specific intent to facilitate the wrongful conduct. (See Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 95; Upasani v. State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519.) The conclusion that Defendant Adrian was an intentional tortfeasor is significant. See B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 29, holding that "section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors - including the plaintiffs, any codefendants, injured parties, and nonparties - contributed to the injuries in question." B.B. v. County of Los Angeles, supra, was issued on August 10, 2020; this Court's decision was issued less than a month later on September 9, 2020. But prior to B.B. the court held in Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1108-09: "The principal issue presented in this case is whether an intentional tortfeasor is entitled to a reduction or apportionment of noneconomic damages under Proposition 51 (otherwise known as the Fair Responsibility Act of 1986 and codified at Civil Code sections 1431 to 1431.5). We answer this question in the negative. [...] ¶ We conclude the trial court was correct in finding that Proposition 51 does not apply VEN-FNR-10.03 MINUTE ORDER DATE: 10/05/2021 Page 2 DEPT: 22 CASE TITLE: Zafra vs Salient Security CASE NO: 56-2015-00467666-CU-OE-VTA in favor of an intentional tortfeasor as against the plaintiffs or negligent tortfeasors and thus uphold its refusal to apportion the plaintiffs' noneconomic damages[...]." The court in Thomas v. Duggins Construction Co., Inc., supra, went on to state: "At the time Proposition 51 was adopted, the law was well established that a tortfeasor who intentionally injured another was not entitled to contribution from any other tortfeasors. (Code Civ. Proc., § 875, subd. (d).)" (Id. at p. 1111; see also Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1144, fn. 37 ["'a party who commits intentional misconduct should not be entitled to escape responsibility for damages based upon the negligence of the victim or a joint tortfeasor'"].) The language in B.B., Thomas, and Kesmodel is clear, reduced liability is not available for defendants liable for intentional torts. That was the case before Proposition 51 and remains the case now. "The preceding discussion demonstrates that California principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor's liability based on the acts of others." (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 24.) Defendants' attempts to distinguish B.B. and the other cases fail to offer any way around the finding that an intentional tortfeasor is not permitted to apportion damages. The reliance on Weidenfeller fails for the same reasons outlined by the Supreme Court in B.B.. Unlike in Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, all of the relevant tortfeasors were named as defendants, and Defendant Adrian was found to have acted intentionally, not negligently. Defendant was not the quintessential comparative fault tortfeasor; a negligent actor. Analysis for Defendants Motion to Tax Costs: Defendants argue that the cost memo should be stricken entirely as to Adrian because Plaintiff was only the prevailing party on some of the causes of action: specifically as to Garner and Zafra (1 of 11 causes of action), and as to Dickinson (3 of 13 causes of action). Alternatively, Defendants' argue that the costs between Plaintiff and Adrian should be apportioned. More specifically, Defendants argue that the service of process costs should not include fees for any defendants other than Adrian and the court transcripts and court reporter costs in 9 and 12 [actually referring to 11] should be stricken because they were not ordered by the Court. A losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike or tax costs. (CRC 3.1700(b).) Under Code Civ. Proc., section 1032: "(b) 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." Under Code Civ. Proc.,§ 1032, subd. (a)(4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. Per Gov. Code, section 12965 regarding FEHA actions: the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees. The fact that Plaintiffs recovered on only some of their claims regarding individual Defendant (Adrian), does not make them less of a prevailing party because they obtained a net monetary recovery and achieved their litigation goals under FEHA claims. An opposing party is not entitled to an offset, even if the prevailing party's net monetary gain reflected a partial or limited recovery. (Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal.App.4th 124.) Moreover, Defendants are in no way the prevailing party; they did not obtain a monetary recovery, dismissal was not entered in their favor, and Plaintiffs did recover some relief against both Defendants. Plaintiffs did recover monetary relief and achieved their litigations objectives as to the FEHA claims, so the award of costs is proper. VEN-FNR-10.03 MINUTE ORDER DATE: 10/05/2021 Page 3 DEPT: 22 CASE TITLE: Zafra vs Salient Security CASE NO: 56-2015-00467666-CU-OE-VTA As for the amounts claimed and contested, Code of Civil Procedure, section 1033.5(a) allows the following costs: (9) Transcripts of court proceedings ordered by the court. (11) Court reporter fees as established by statute. Subsection (b) provides that the following items are not allowable as costs: (5) Transcripts of court proceedings not ordered by the court. Subsection (c) provides, in part: (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion. If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass'n. (1993) 19 Cal.App.4th 761, 774.) Defendants have not met their burden as to the entire cost memos, they fail to establish that apportioning costs would be appropriate, and their specific challenges to the reporter and transcript costs fail. There is no basis to apportion costs; Plaintiffs did not recover "other than monetary relief' and this is not a situation "other than as specified." CCP § 1032, subd. (a)(4). As held in Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199, where a plaintiff only prevailed on one cause of action: "Because a plaintiff with partial recovery was found under prior case law to be the successful party entitled to costs, and because the revision of section 1032 was apparently designed to codify existing case law, we construe the 'party with a net monetary recovery' to include a plaintiff who obtains a partial recovery, even though the defendant had not sought damages in a cross-complaint." (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199, emphasis added.) The plaintiff in Mitchell was entitled to recover "even those costs which relate solely to causes of action upon which she did not prevail." (Id. at 1200; see also Moreno v. Bassi (2021) 65 Cal.App.5th 244, 261 [Plaintiff to recover "even those costs related solely to causes of action upon which she did not prevail.].) Here, Plaintiffs' successful claims were not insignificant, but even if they were, Plaintiffs are entitled to costs because they achieved a monetary recovery. While Gov. Code section 12965(b) governs costs award for FEHA claim, and states that the court has discretion, the Supreme Court has found that "a prevailing plaintiff should ordinarily receive his or her costs and attorneys fees unless special circumstances would render such an award unjust." (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97.) Defendants achieved no monetary or other success, Plaintiffs were successful against Adrian on at least the FEHA claims and achieved a monetary recovery, and an award of costs to Plaintiffs would not be unjust. To the extent that the court has discretion, it denies the request to apportion costs. The court denies the Defendants' Motion to Tax Costs in its entirety. Clerk is directed to give notice. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 10/05/2021 Page 4 DEPT: 22