Motion_re_strike_and_tax_costsMotionCal. Super. - 2nd Dist.March 14, 2017Electronically FILE DJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 y Superior Court of California, County of Los Angeles on 08/20/2019 02:00 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk Carney R. Shegerian, Esq., State Bar No. 150461 CShegerian@Shegerianlaw.com Anthony Nguyen, Esq., State Bar No. 259154 ANguyen@Shegerianlaw.com ce Bommer, Esq. State Bar No. 313846 BBommer@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, HELENE G. SAKELLIS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT HELENE G. SAKELLIS, an Case No.: BC 653 918 individual, The Honorable Dennis J. Landin Plaintiff, PLAINTIFF HELENE G. SAKELLIS’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; VS. MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CARNEY R. SHEGERIAN; CEDARS-SINAI MEDICAL EXHIBITS CENTER, a California corporation, ANNA GREIF, an individual, and (Filed concurrently [Proposed] Order) DOES 1 to 100, inclusive, Action Filed: March 14, 2017 Defendants. Date: November 4, 2019 Time: 9:00 a.m Dept: 51 RES ID: 170419981700 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 CONTENTS 1. INTRODUCTION 2. PROCEDURAL HISTORY 3. ARGUMENT A. Costs are Not Authorized Against a Plaintiff in a FEHA Case Absent a Showing That the Case Was “Objectively Without Foundation.” B. Even If Defendant Is Entitled to Costs, Which It Should Not Be, Such Costs Must Be Taxed for Being Improper and Unsubstantiated. (1) C.C.P. § 1033.5 Provides a Limited Scope of Recovery. (2) Item No. 1-Filing and Motion Fees (3) Item No. 4-Deposition Costs (4) Item No. 5-Service of Process (5) Item No. 11-Court Reporter Fees C. PLAINTIFF'S MOTION IS TIMELY. 4. CONCLUSION _Toc16862648 i Page OO OW OW 0 0 J Un Wn 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 Cases Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370 Bach v. County of Butte (1989) 215 Cal. App.3d 294 Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383 Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436 Ferko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App.4th 238 Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330 Ladas v. California State Auto Ass'n (1993) 19 Cal.App.4th 761 Melnyk v. Robledo (1976) 64 Cal.App.3d 618 Nelson v. Anderson (1999) 72 Cal. App.4th 111 Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678 Rosenman v. Christensen, Miller, et al. (2001) 91 Cal.App.4th 859 Villanueva v. City of Colton (2008) 160 Cal. App.4th 1188 Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97 Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467 Statutes Code of Civil Procedure § 1013 Code of Civil Procedure § 1032 Code of Civil Procedure § 1033.5 Code of Civil Procedure § 998 Government Code §§ 12900-12996 Rules California Rules of Court, Rule 3.1700(b)(1) Hi= Page 1,3,4,6 5,6,7,8 3,4 passim 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, Helene Sakellis, hereby moves to strike all of defendant Cedars Sinai Medical Center’s costs claimed in its Memorandum of Costs, in the astonishing amount of $13,374.92, after Defendant’s Motion for Summary Judgment was granted against Plaintiff’s retaliation, wrongful termination, discrimination and failure to prevent harassment and discrimination under the Fair Employment and Housing Act (“FEHA”). Defendant’s costs are impermissible. (Declaration of Carney R. Shegerian (“Shegerian Decl.”), Exh. 1, Defendants’ Memorandum of Costs.) Defendant completely ignores the California Supreme Court’s decision in Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97, which states clearly and unequivocally, that “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 standard for 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 defendant. Defendant have not shown, and cannot show, that Plaintiff’s claims were objectively without foundation. Plaintiff hereby asks that the Court strike the following itemized costs that defendant claims in its memorandum: 1. Item No. 1, for “Filing and motion fees” totaling $1,817.65; 2. Item No. 4, for “Deposition costs” totaling $10,432.45; 3. Item No. 5, for “Service of Process” totaling $599.82; 4. Item No. 11, for “Court reporter fees as established by statute” in the amount of $525.00; and 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 In the event that the Court finds this matter “objectively without foundation,” which it should not, then plaintiff moves to tax defendant’s costs in the amount of $13,374.92. Defendant impermissibly seeks numerous costs that are not authorized by law, and this requires that its Memorandum of Costs be taxed in its entirety. Finally, to the extent that the Court finds that defendant is 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 a// of defendant’s Memorandum of Costs. In the alternative, this Court should tax defendant’s Memorandum of Costs in its entirety for defendant’s unauthorized and unreasonable costs. 2. PROCEDURAL HISTORY This action was filed on March 14, 2017, against Cedars Sinai Medical Center, Inc., and Anna Greif, alleging nine causes of action intertwined under the same nucleus of operative facts, comprised of three FEHA claims. See Exh. 2, Complaint. On April 17, 2019, Defendants filed a motion for summary judgement or, alternatively, summary adjudication of each of Plaintiff’s nine causes of action. On June 17, 2019, Plaintiff filed an opposition to Defendants’ motion. On June 26, 2019, Defendants filed their reply briefs to Plaintiff’s opposition. On July 1, 2019, the trial court heard oral arguments regrading Defendants’ motion for summary judgement. At the conclusion of the hearing, the court took the issue under submission. On July 12, 2019, the Superior Court issued its order granting Defendants’ summary judgement. (Exh. 2.) Defendant then served its Memorandum of Costs, by mail, on July 31, 2019. 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 3. ARGUMENT A. Costs are Not Authorized Against a Plaintiff in a FEHA Case Absent a Showing That the Case Was “Objectively Without Foundation.” The FEHA is specifically exempt from “prevailing party” determinations under Code of Civil Procedure Section 1032 and even Section 998. We conclude Government Code section 12963(0) 1s an express exception to Code of Civil Procedure section 1032(b) and the former, 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 awarded 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). B making a cost award discretionary rather than mandatory, Government Code section 12965(b) expressly excepts FEHA actions Hom Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party. Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97, 105. 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 Pcedure section § 1032, et al., does not apply to FEHA cases. Id. The determination of costs under the 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 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 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 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 legislative 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 her case. Id. Finally, the court cautioned that, in applying 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, her 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). 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 litigation 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 !' Section 998 Offers to Compromise specifically depend on Code of Civil Procedure section 1032. 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 (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. Additionally, although there were claims pled that were not under the FEHA, the crux of plaintiff’s case was under the FEHA, with a few ancillary claims that were tangential and were not litigated separately in any way. Defendant cannot prove that any of the costs sought were spent only on defending separate issues regarding Plaintiff’s claims. The causes of action all overlapped, and therefore the standard under FEHA should apply to all costs and fees incurred in this case. B. Even If Defendant Is Entitled to Costs, Which It 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 defendant is 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 (¢), 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. Ca. Code of Civ. Proc. § 1033.5 (¢)(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 cost were actually incurred, reasonably necessary to the conduct of the litigation, and reasonable in amount. Additionally, once a “prevailing party’s” costs are properly objected to, those costs are put in issue, and the 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) 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 requires that any award of cost 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 Ca. Code of Civ. Proc. § 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. Ca. Code of Civ. Proc. § 1033.5 (¢); 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 Ca. Code of Civ. Proc. § 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 (¢)(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 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 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 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, defendant not only bears the burden of proof on this motion, but must submit documentation in support of each cost item requested. As is detailed below, defendant has repeatedly overreached in its memorandum by seeking reimbursement of costs that plainly are disallowed, unnecessary, and/or unreason- able. It is “the trial court’s obligation to review the supporting documents” provided 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 defendant’s 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 defendant to provide it. (2) Item No. 1-Filing and Motion Fees Under Item No 1, defendant is seeking recovery of $1817.65 for “Filing and motion fees.” Defendant provides no supporting documentation or other evidence substantiating these costs. For instance, Defendants’ claim a total cost of $1817.65 for the filing of Defendants’ Answer to Plaintiff’s Complaint. Under the Superior Court of California, County of Los Angeles Civil Fee Schedule the filing fee for an answer is $435. See Exh. 3, Superior Court of California Statewide Fee Schedule 2017. Defendants only filed one Answer on behalf of all parties on April 17,2017. In light of the foregoing, the requested costs are not “reasonable in amount,” a requirement under Code of Civil Procedure section 1033.5 (¢)(3), nor has the Defense shown all its costs under this section were “reasonably necessary” to conduct the litigation, a requirement under Code of Civil Procedure section 1033.5 (c)(2). 11 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 (3) Item No. 4-Deposition Costs Under Item No. 4, defendant is seeking recovery of $10,432.45 for the depositions of ten witnesses and/or records. Besides such costs not being supported by documentation or evidence to substantiate such costs, there is no showing that such all of these depositions and/or records were necessary. See Ca. Code of Civ. Proc. § 1033.5 (c)(2) and (3). To the extent that defendant is entitled to deposition costs at all, it must produce invoices showing the costs accrued alleged in its memorandum regarding these depositions. See Ca. Code of Civ. Proc. § 1033.5 (c)(1). In addition, while its unclear form the Memorandum of Costs, the standard transcription costs for necessary depositions are recoverable, plaintiff objects to any extra cost paid to expedite the deposition transcripts. Ordering a deposition transcript on an expedited basis may be convenient or beneficial, but is not “necessary.” Code of Civil Procedure § 1033.5 (c); Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342 (trial court erred in awarding expedited deposition transcript fees). Also, it is questionable whether expedited transcript costs, which are substantial and can exceed the basic transcript cost, are reasonable. Ca. Code of Civ. Proc. § 1033.5 (c). The burden is on defendant to establish the appropriateness of the transcription costs. To the extent that defendant cannot establish that the transcripts were ordered in a reasonable manner, as opposed to on an expedited basis, such costs must be taxed. Hsu at 1342 (“Standard transcription fees for ‘necessary’ depositions are recoverable, but the extra cost for expediting transcripts maybe allowed only in the exercise of the trial court’s discretion”). (4) Item No. 5-Service of Process Under Item No. 5, defendant is seeking $599.82 for “Service of Process.” Generally, messenger fees should be taxed as a matter of law. Nelson, 72 Cal. App.4th 111. Nelson held that, especially when a defendant is represented by a large law firm, messenger fees are suspect. Defendant is trying to outsource the Postal Service to plaintiff's slim wallet. Defendant may choose to use independent contractors, rather than employees, for filing and service, but this business decision should not make plaintiff bear the costs. -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 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. (5) Item No. 11-Court Reporter Fees Defendant is seeking $525.00 in court reporter fees, but provides no documentation or verification of the accuracy of these amounts. Such costs must be taxed. C. 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 memorandum.” The time to file is extended under Code of Civil Procedure section 1013. Here, defendants served their memorandum on July 31, 2019, by regular mail. As such, the deadline to file the motion is August 20, 2019. 4. CONCLUSION For all of the foregoing reasons, plaintiff, Helene Sakellis, respectfully requests that the Court issue an order striking all of defendants’ costs or, in the alternative, taxing defendants’ costs in the amount of $13,374.92. Dated: August 20, 2019 SHEGERIAN & ASSOCIATES, INC. Carney Shegeri sq. Attorneys for Plaintiff, HELENE G. SAKELLIS 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 DECLARATION OF CARNEY R. SHEGERIAN I, Carney R. Shegerian, declare as follows: 1. 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, Helene Sakellis, 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. Attached hereto as Exhibit 1 is a true and correct copy of Defendant’s Memorandum of Costs. 3. Attached hereto as Exhibit 2 is a true and correct copy of the Court’s Ruling on Defendants’ Motion for Summary Judgment / Adjudication. I declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on this 20th day of August, 2019, at Santa Monica, California. -10- PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS Exhibit 1 MC-010 ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NUMBER: 118135 FOR COURT USE ONLY NAME: Anthony J. Oncidi; Pietro A. Deserio (SBN 309230) FIRM NAME: Proskauer Rose STREET ADDRESS: 2029 Century Park East 24th Floor ctv: Los Angeles STATE: CA zip cope: 90067-3010 TELEPHONE NO. 310-284-5690 FAX NO.: E-MAIL ADDRESS: aoncidi@proskauer.com; pdeserio@proskauer.com ATTORNEY FOR (name): Cedars-Sinai Medical Center and Anna Greif SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREET ADDRESS: 111 N. Hill Street MAILING ADDRESS: CITY AND ZIP CODE: Los Angeles 90012 BRANCH NAME: Stanley Mosk PLAINTIFF: Helene Sakellis DEFENDANT: Cedars-Sinai Medical Center and Anna Greif CASE NUMBER: MEMORANDUM OF COSTS (SUMMARY) BC653918 The following costs are requested: TOTALS 1. Filing and motion fees 3 1817.65 2. Jury fees $ 3. Jury food and lodging $ 4. Deposition costs 3 10432.45 5. Service of process $ 599.82 6. Attachment expenses $ 7. Surety bond premiums 3 8. Witness fees $ 9. Court-ordered transcripts $ 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 3 525.00 12. Models, enlargements, and photocopies of exhibits $ 13. Interpreter fees $ 14. Fees for electronic filing or service $ 15. Fees for hosting electronic documents $ 16. Other $ TOTAL COSTS $ 13374.92 | 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: 7/31/2019 Pietro A. Deserio b I a ™y (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT). | of (Proof of service on reverse) Page 1 of 2 Form Approved for Optional Use Code of Civil Procedure, Judicial Council of Califomia MC-010 MEMORANDUM OF COSTS (SUMMARY) §§ 1032, 1033.5 [Rev. September 1, 2017] MC-010 SHORT TITLE CASE NUMBER: Sakellis v. Cedars-Sinai Medical Center et al. BC653918 PROOF OF [x] MAILING [_] PERSONAL DELIVERY At the time of mailing or personal delivery, | was at least 18 years of age and not a party to this legal action. 2. My residence or business address is (specify): 2029 Century Park East, 24th Floor, Los Angeles, CA 90067-3010 3. I mailed or personally delivered a copy of the Memorandum of Costs (Summary) as follows (complete either a or b): a. [x] Mail. | am a resident of or employed in the county where the mailing occurred. (1) lenclosed a copy in an envelope AND (a8) [] deposited the sealed envelope with the United States Postal Service with the postage fully prepaid. (by [x] placed the envelope for collection and mailing on the date and at the place shown in items below following our ordinary business practices. | am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. (2) The envelope was addressed and mailed as follows: (a) Name of person served: Carney R. Shegerian, Esq., Anthony Nguyen, Esq., Bryce Bommer, Esq. (b) Address on envelope: Shegerian & Associates, 225 Santa Monica Blvd., Suite 700, Santa Monica, CA 90401 (c) Date of mailing: 7/31/2019 (d) Place of mailing {city and state): Los Angeles, CA b. [__] Personal delivery. | personally delivered a copy as follows: (1) Name of person served: (2) Address where delivered: (3) Date delivered: (4) Time delivered: | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: 7/31/2019 Robert Linton b (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) Page 2 of 2 We STbResEepierber 2501 MEMORANDUM OF COSTS (SUMMARY) Exhibit 2 FILED Superior Court of California County of Los Angeles JUL 122019 County of Los Angeles Sherri B~Cartez.Ezsculive Officer/Clerk of Court Department 51 (JOT ey Jessica Clavero Superior Court of California HELENE G. SAKELLIS, | Case No.: BC653918 Plaintiff, | Hearing Date: 7/1/19 v. Trial Date: 8/5/19 CEDARS-SINAI MEDICAL CENTER. etal., |RULING RE: Defendants. Motion for Summary Judgment or alternatively | Summary Adjudication Background Plaintiff Helene G. Sakellis (“Plaintiff”) worked for Defendant Cedars-Sinai Medical Center (“CSMC™) as a clinical nurse from July1992 to June 2016. Plaintiff alleges various claims against Defendants CSMC. Anna Grief (“Grief”), and Does (collectively, “Defendants™) for retaliation, discrimination based on her age and disability, and defamation in relation to her termination from employment. On March 14, 2017, Plaintiff filed a Complaint, and on March 24, the operative First Amended Complaint (“FAC”) against Defendants for the following causes of action: (1) retaliation for exercising rights under the Labor Code §98.6; (2) retaliation and wrongful termination in violation of the Health and Safety Code §1278.5; (3) retaliation and wrongful termination in violation of the Labor Code §6310; (4) retaliation and wrongful termination in violation of the Labor Code §1102.5; (5) defamation; (6) discrimination in violation of Gov't Code §§12940 et seq.: (7) failure to prevent discrimination in violation of Gov't Code §§12940(k); (8) wrongful termination in violation of public policy; and (9) declaratory judgment. On April 17, 2019, Defendants filed the instant Motion for Summary Judgment or alternatively Summary Adjudication. Defendants move for summary judgment/adjudication as to all nine causes of action, as well as Plaintiff’s request for punitive damages. The Court considered the moving. opposition, reply papers and oral argument. Summary Judgment Standard “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. 850. A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing 1 the motion in accordance with the applicable standard of proof. Id. Where a defendant seeks summary judgment or adjudication, it must show that either one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc., § 437¢, subd. (p)(2). A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. Union Bank v. Superior Court (1995) 31 Cal. App.4th 574, 590. Once the defendant meets this burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. Id. If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. Id. “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c¢. subd. (c). Analysis First, Second, Third, and Fourth Causes of Action: Retaliation and Wrongful Termination under Labor Code §¢ 98.6, 6310, 1102.5 and Health & Safety Code § 1278.3 When a plaintiff alleges retaliatory employment termination under Labor Code Sections 98.6, 6310. and 1102.5 and Health & Safety Code Section 1278.5. and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817 to determine whether there are triable issues of fact for resolution by a jury. Loggins v. Kaiser Permanente Internat (2007) 151 Cal.App.4th 1102, 1109; Armin v. Riverside Community Hospital (2016) 5 Cal. App.5th 810, 830; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App.4th 189, 202-203. In the first stage, the “plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” Yanowitz, supra, 36 Cal.4th at 1042; Mendiondo v. Centinela Hosp. (9th Cir. 2008) 521 F.3d 1097; 1103-05 (retaliation action under Health & Safety Code § 1278.5); Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138 (retaliation claim under Lab. Code § 1102.5). If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. Morgan v. Regents of University of California (2000) 88 Cal. App.4th 52. 68. If the employer produces evidence showing a legitimate reason for the adverse employment action, “the presumption of retaliation * = “drops out of the picture,” ” * ” Yanowitz, supra, 36 Cal.4th at 1042, and the burden shifts back to the employee to provide “substantial responsive evidence” that the employer's proffered reasons were untrue or pretextual. Loggins, supra, 151 Cal. App.4th at 1109; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App.4th 1718, 1735. I w (a) Prima Facie Showing of Retaliation Defendants argue that Plaintiff cannot prove a prima facie case of retaliation because Plaintiff did not engage in any activity that is protected under the statues, and no causal connection exists between Plaintiffs patient advocacy and her request for a lunch break and her termination. Specifically, Defendants argue that Plaintiff’s periodic emails to Greif and other nurses regarding scheduling issues and potential patient safety concerns do not constitute protected activities as a matter of law. Also, Defendants argue that temporal proximity between Plaintiff's request for lunch break and her termination is insufficient evidence to establish a causal connection for the retaliation claim. The Court agrees. First, Plaintiff fails to show that her periodic emails constitute protected activity under the statutes. The evidence does not show any belief on Plaintiff's part that she was disclosing a violation of state or federal law in any sort of whistleblowing context, as required for all whistleblowing actions. (Mtn., UMF, 49 66-91.) Rather, it resembles informational disclosure which brings CSMC nurses’ attention to patient advocacy topics. See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal. App.4th 1378, 1385 (Plaintiff’s requests to the defendant about needing more staff for safety purposes do not amount to whistleblowing as a matter of law, because they were not made in whistleblowing context.). As Patten instructs, “it would thrust the judiciary into micromanaging employment practices and create a legion of underserving protected “whistleblowers” arising from the routine workings and communications of the job site. [Citation.]” Patten, supra, 134 Cal. App.4th at 1385; see Edgerly v. City of Oakland (2012) 211 Cal. App.4th 1191, 1204. The same 1s true for Plaintiff's request for a lunch break. The Court finds that such request does not fall outside the routine communications at the job site, especially given that Plaintiff was allowed to take her lunch break immediately after the request was made to the CSMC’s Administrator on Duty. Therefore, the Court finds that Plaintiff’s emails and request for a lunch break do not rise to the level of whistleblowing as required under the statutes. Further, the Court finds that Plaintiff fails to establish a causal connection between these activities and her termination. Records show that Plaintiff sent the periodic emails to Greif and other nurses since 2011, and Plaintiff was repeatedly commended and given favorable reviews for her patient advocacy by Detendants. (Mtn., UMF, 99 12, 66, 70, 72, 80, 86.) In light of these facts, Plaintiff fails to present evidence of why and how Defendants suddenly switched to retaliate against Plaintiff for the very same activities. A causal connection is also missing for Plaintiffs request for lunch break, as the only evidence of such causal relationship is its temporal proximity to her termination. (Mtn., UMF, § 33, 44, 52.) Absent other evidence, temporal proximity alone is not sufficient to raise a triable issue as to retaliation claims. Diego v. Pilgrim United Church of Christ (2014) 231 Cal. App.4th 913, 932. Plaintiff also fails to show any retaliatory motive from Defendants to terminate her based on her one-time request for a lunch break. Therefore, the Court finds that Plaintiff fails to show a causal connection between her request and her termination. As such, the Court finds that Plaintiff fails to make a prima facie showing of retaliation as a matter of law. (b) Legitimate, Non-retaliatorv, Non-pretextual Reasons Even if Plaintiff could make a prima facie showing of retaliation, Defendants still produce sufficient evidence showing a legitimate, non-retaliatory reason for Plaintiff’s termination. Defendants present records that CSMC terminated Plaintiff because she repeatedly violated CSMC’s patient charting and timekeeping policies. (Mtn., UMF, 99 52-56.) Because of such repeated violations, Plaintiff was warned in writing on four occasions that CSMC would take “additional disciplinary action up to and including termination of her employment.” (Mtn., UMF, 99 14, 16, 18.) Especially, the records show that Plaintiff was placed on an administrative leave following Plaintiff's heated exchange with a patient’s father, his formal complaint about Plaintiff’s failure to take neccessary steps, and another nurse’s report that Plaintiff failed again to comply with the patient charting and timekeeping policies. (Mtn., UMF, 49 21-27, 35-40, 43-47.) Also, the records show that, as a healthcare provider, CSMC has consistently expressed serious concerns over Plaintiff's alleged disregard for patient safety, as she repeatedly failed to register correct patient charting and timekeeping. (Mtn., UMF, 99 14, 16, 18.) Given the history of disciplinary actions on Plaintiff since 2011 and the significance of CSMC’s policies regarding patient health and safety, the Court finds that Defendants present legitimate reasons for terminating Plaintiff. Further, Plaintiff’s argument that Defendants” proffered reasons are pretextual is unavailing. As discussed above, mere temporal proximity between the events is insufficient to raise a triable issue of retaliation. Diego, supra, 231 Cal. App.4th at 932. Also, the Court disagrees with Plaintiff's contention that CSMC deviated from their policies and practices and failed to investigate Plaintiff's case, because Defendants present evidence that CSMC in fact not only had proper investigative procedures in place but also complied with such procedures. (Mtn., UMF, 99 33,37,42, 48,52.) As such, the Court finds that Defendants successtully show legitimate, non-retaliatory, non- pretextual reasons that defeat any presumption of retaliation. Accordingly, Defendants’ motion for summary adjudication as to the first, second, third, and fourth causes of action is GRANTED. Fifth Cause of Action: Defamation “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” Sanders v. Walsh (2013) 219 Cal. App.4th 855, 862. Defendants move for summary adjudication of the fifth cause of action on the ground that Plaintiff fails to show her termination letter was published to anyone else besides herself. The Court agrees with this assessment. Defamation must have been communicated or published intentionally or negligently to another. Cabesuela v. Browning-Ferris Industries of Cal., Inc. (1998) 68 Cal. App.4th 101, 112. Plaintiff's deposition shows that the termination letter or the payroll inquiry that corrected her time was not shown to anyone other than Plaintiff. Further, Plaintiff offers no legal authority that has found defamation based on a termination letter or a payroll inquiry from an employer. Accordingly, Defendants’ motion for summary adjudication as to the fifth causes of action is GRANTED. Sixth and Seventh Cause of Action: Discrimination and Failure to Prevent Discrimination under the FEHA As with retaliation claims, FEHA employment discrimination claims are analyzed under the three-stage burden-shifting test established in McDonnell Douglas, supra, 411 U.S. at 793. See Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317. A plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215 (citing Guz, supra, 24 Cal.4th 354-356). A prima facie case establishes a presumption of discrimination. Ibid. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. Ibid. If the employer discharges this burden, the presumption of discrimination disappears. Ibid. The plaintiff must then show that the employer's proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. Ibid. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff. Ibid. Defendants move to summary adjudication of the sixth and seventh causes of action on the ground that Plaintiff cannot make out a prima facie case of discrimination based on age or disability. Defendants argue that Plaintiff has no evidence implying that Greif or CSMC treated her differently because of her age or disability. The Court agrees. Plaintiff fails to present evidence of discriminatory intent based on Plaintiff’s age or disability. As Gov't Code §12940 provides, in order to make a prima facie case of discrimination, an adverse employment action must be taken “because of” a plaintiff's protected status. The only evidence Plaintiff presents to show Defendants’ discriminatory intent is Greif’s statement with reference to age. (Mtn., UMF. § 61.) Although California courts reject the stray remarks doctrine, stray remarks alone, with nothing more, are insufficient to create a triable issue of age discrimination. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 539-45; Sandell v. Taylor-Listug. Inc. (2010) 188 Cal. App.4th 297, 320. Given that it was the only comment Plaintiff alleges Greif made in the six years they worked together related to age and that Plaintiff’s claim is void of other evidence, the Court finds that no reasonable trier of fact could infer that the employer's true reason was discriminatory. See Hicks v. KNTV Television. Inc. (2008) 160 Cal. App.4th 994, 1003. The same applies to the disability discrimination claim. Plaintiff’s deposition shows that Greif or any other employee in CSMC made any negative comments related to Plaintiff’s breast cancer survivor status. (Mtn., UMF, § 63.) If Plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, Defendants are entitled to summary judgment. See Hicks, supra. 160 Cal. App.4th at 1003. As such, the Court finds that Plaintiff fails to make a prima facie showing of discrimination based on her age or disability. w n Further, as discussed above. the Court finds that Defendants successfully show legitimate, non- retaliatory, non-pretextual reasons for terminating Plaintiff. Accordingly, Defendants’ motion for summary adjudication as to the sixth and seventh causes of action is GRANTED. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy To show a wrongful discharge, plaintiff must establish that (1) plaintiff's employment was actually or constructively terminated; (2) the termination was in violation of a policy that is delineated in either constitutional or statutory provisions at the time of the discharge; and (3) damages occurred. Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 5235, 533; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 881 (“In order to support a tort claim for wrongful discharge from employment in contravention of public policy, the policy must be supported by either constitutional or statutory provisions.™). Plaintiff alleges a claim for wrongful discharge based on her retaliation and discrimination claims under FEHA, Labor Code. and Health & Safety Code. When a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition. Stevenson, supra, 16 Cal.4th at 883. Therefore, availability of this claim depends on the availability of the underlying claims under the relevant statutes. Since the Court has granted Defendants” motion for summary adjudication as to the underlying retaliation and discrimination claims, Plaintiff has no ground to assert this cause of action. Accordingly, Defendants’ motion for summary adjudication as to the eighth cause of action is GRANTED. Ninth Cause of Action: Declaratory Relief Similarly, since the Court has granted Defendants” motion for summary adjudication as to the underlying retaliation and discrimination claims, Plaintiff has no ground to assert this cause of action. Accordingly, Defendants” motion for summary adjudication as to the ninth cause of action is GRANTED. Conclusion Defendants” Motion for Summary Judgment as to all causes of action is GRANTED. Defendants to give notice. - Dated: Jue 12 101 is Landin ~~ Superior Court Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAKELLIS v. CEDARS-SINAI et al. LASC CASE NO.: BC 653 918 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am an employee in the County of Los Angeles, State of California. 1 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 August 20, 2019, I served the foregoing document, described as “PLAINTIFF HELENE G. SAKELLIS’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION,” on all interested parties in this action by placing a true copy thereof in a sealed envelope, addressed as follows: Anthony J. Oncidi, Esq. Pietro A. Deserio, Esq. PROSKAUER ROSE LLP 2049 Century Park East, 24™ Floor Los Angeles, California 90067-3206 [] (BY MAIL) As follows: [1] Iplaced such envelope, with postage thereon prepaid, in the United States mail at Santa Monica, California. [1 Iam “readily familiar” with the firm’s practice of collecting and processing corre- spondence for mailing. Under that practice, it would be deposited 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 postaze meter date 1s more than one day after the date of deposit for mailing in this affidavit. x (BY FED EX) I placed such envelopes in a designated Federal Express pick-up box (for over-night service) at Santa Monica, California. (BY ELECTRONIC MAIL) I sent such document via electronic mail to the email(s) noted above. [] x (STALL) I declare, under penalty of perjury under the laws of the State of alifornia, that the above is true and correct. Executed on August 20, 2019, at Santa Monjca, California. Jose Castro Make a Reservation | Journal Technologies Court Portal Journal Technologies Court Portal Make a Reservation HELENE G SAKELLIS VS CEDARS-SINAI MEDICAL CENTER ET AL Case Number: BC653918 Case Type: Civil Unlimited Category: Wrongful Termination ~ Date Filed: 2017-03-14 Location: Stanley Mosk Courthouse - Department 51 Reservation . Case Name: HELENE G SAKELLIS VS CEDARS-SINAI MEDICAL Case Number: | Payment ~ Amount: Type: $61.65 MasterCard Account Number: Authorization: XXXX1860 08126P I= Print Receipt | ++ Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. CENTERET AL BC653918 Type: Status: Motion to Tax Costs RESERVED Filing Party: Location: Helene G Sakellis (Plaintiff) Stanley Mosk Courthouse - Department 51 Date/Time: Number of Motions: 11/04/2019 9:00 AM 1 Reservation 1D: Confirmation Code: 170419981700 CR-JIQBACCHZS9Z9G3V7 Fees Description Fee Qty Amount Motion to Tax Costs 6000 1 6000 Credit Card Percentage Fee (2.75%) 1.65 1 1.65 TOTAL $61.65
