Reply To Opp To Motion To Tax Costs

Reply

Cal. Super. - 1st Dist.August 15, 2018

M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jason M. Erlich, Esq., Cal. Bar #203661 email: jason @mcelawfirm.com MCCORMACK & ERLICH LLP 150 Post Street, Suite 742 San Francisco, CA 94108 Tel: (415) 296-8420 Fax: (415) 296-8552 Attorney for Plaintiff KAMELIA BEGLEY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO CIVIL - UNLIMITED JURISDICTION KAMELIA BEGLEY, Plaintiff, VS. DELTA DENTAL OF CALIFORNIA, and DOES 1 through 25, inclusive, Defendants. Case No. CGC-18-568943 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEFENDANT’S MEMORANDUM OF COSTS Date: January 15, 2020 Time: 9:30 a.m. Dept: 302 Reservation No. 12170115-11 PLAINTIFF'S REPLY TO DEF'S OPPOSITION TO MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant offered to settle this case for $100,000 plus attorney’s fees and costs. This substantial offer is proof that Defendant never truly believed this case was frivolous. No party would offer what easily would have exceeded several hundred thousand dollars if they truly believed this was a frivolous case. In its Opposition, Defendant cites to no valid legal opinions to contradict Plaintiff's argument that the standard for granting costs in a FEHA case, even with a CCP Section 998 offer, is that the case was frivolous, unreasonable or groundless. As Plaintiff brought this case in good faith, made no false statements, and never received any evidence which clearly demonstrated that her claims were obviously baseless, the motion to strike costs must be granted. Defendant's argument that Plaintiff’s claims were frivolous is extremely vague. As support for its claim "undisputed evidence" was produced that her claims were "frivolous", Defendant merely cites to its summary judgment motion ("MSI"). (Opposition at 4:7-9.) Yet this evidence consists only of two declarations of Defendant's managers, in support of the motion. Clearly, no employment law plaintiff would dismiss or settle their case based solely on the declarations of two Defendant managers. Defendant never attached any documentary evidence to its motion papers to support its key claim that a layoff off 33 employees occurred, or as to the method of Plaintiff's selection. And in its Opposition to this motion, Defendant never points to any specific piece of documentary evidence that would make manifestly clear that Plaintiff's was terminated for legitimate non-discriminatory reasons, or that her claims were so groundless as to merit an award of costs. In fact, the actual evidence produced in discovery regarding the alleged layoff is evidently so manifestly unclear, that Defendant has objected to its own production of documents related to the layoff on the grounds it is "inadmissible" (Opposition 4:19). Elsewhere, Defendant suggests the layoff list it produced may not even be a final draft; or it may not even have been used for anything. [Def's Obj. to Evidence ISO PL's Motion for New Trial, 3:19-21.] Obviously, Defendant could easily answer all these questions it raises about its own evidence, but chooses not to. Defendant, who has had custody of these documents all along as well as access to all persons with knowledge of them, instead offered $100,000 plus attorney's fees and costs to settle the case -1- PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under CCP Section 998, after its summary judgment motion was filed. However, Government Code § 12965(b) was amended in 2019 to only allow recovery of post-offer costs only if the case was "frivolous, unreasonable, or groundless.” Here, Defendant has not articulated why the case rises to that standard. Defendant's Opposition does not discuss the 2019 FEHA amendments, and only cites pre-2019 cases for support. The bottom line is that this action is an ordinary case, litigated in an ordinary way, which happened to lose. None of this justifies the repeated personal accusations of "gamesmanship" levied against Plaintiff's counsel. Plaintiff brought up a number of pieces of evidence to support her claims, but these manifestly did not sway the Court. As there is no evidence of bad faith, egregious behavior, false or manifestly groundless claims, the motion must be granted. II. LEGAL ARGUMENT A. Despite that Plaintiff lost in summary judgment, her claims were neither frivolous, brought in bad faith, groundless, nor were they objectively baseless. Rather than acknowledge that Plaintiff Begley’s claims were brought in good faith and pursued with vigor, Defendant simply argues that because it won at the summary judgment stage, the case must have been frivolous. Simply losing at the summary judgment stage is not evidence that the claims were frivolous, unreasonable, or groundless. (See Cummings v. Benco Building Services, (1992) 11 Cal. App.4th 1383, 1389; Jersey v. John Muir Medical Center (2002) 97 Cal. App.4th 814, 831-832.) The defendant asserting that the FEHA plaintiff's claims are frivolous must show specific facts which establish the grounds for the claims were patently non-existent. (Cummings, supra, 11 Cal. App.4th at 1390.) In reaching its ruling, granting summary judgment for Defendant, the Court considered Plaintiff's evidence supporting her claims of discrimination and retaliation; and that Defendant's rationale for her termination was lacking. The evidence discussed in the Court’s Summary Judgment Order included the temporal proximity between protected acts (Plaintiff’s medical leave and complaint of retaliation) and her termination; the fact at least three other California employees had lower performance scores; and the fact other "laid off" employees were transferred or rehired without break in employment. 9 PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further evidence discussed in the Opposition to MSJ and the hearing, but not in the Court’s Order, included that a job with the same duties as Plaintiff's was re-posted in Oakland on the day her termination took effect despite that she had expressed interest in a Bay Area position; Plaintiff's V.P. wrote in response to her request for time-off for IVF treatment that the message she gets is her job will be eliminated, and he is concerned for her health; and Senior V.P. Dr. Yale (who indisputably was a key decision-maker in Defendant's layoff) repeatedly said "no" or "not to my knowledge" when questioned about Ms. Canciller's claims about the layoff methods and scope. The Court found all Plaintiff's arguments unpersuasive. But none of this indicates that Plaintiff's conduct in pursuing the litigation was egregious; her claims were patently baseless; or the factual basis of her claims was nonexistent. Moreover, Defendant's evidentiary basis was thin and relied solely on declarations for its principal defense. Defendant submitted no documentary evidence of the procedure for the layoffs. There is no documentary evidence that 33 people were actually laid off. If that were true it should have been easy for Defendant to attach documents to back it up. Yet, Defendant claims that documents it produced in discovery on the subject of the layoff are "inadmissible." (Opposition, 4:19.) Defendant claims Plaintiff's counsel "use[s] his own incorrect interpretation of documents as evidence," but has never posited any alternative explanation. In opposition to the separate Motion for New Trial, Defendant even objects to evidence that it produced related to the number and identity of people laid off because "Plaintiff does not even have information as to whether this spreadsheet was ever actually utilized or whether is it a final version or an initial draft." [Def's Obj. to Evidence ISO PL's Motion for New Trial, 3:19-21.] Plaintiff's requested a continuance to depose a PMQ on this evidence and this was not granted. But Defendant's claim that Plaintiff's case is frivolous because she received some form of clear and unambiguous evidence of the truth of Defendant's story by way of written discovery, is simply untrue. B. Delta Dental Is Not Entitled to Costs under the Williams decision or the 2019 FEHA Amendments Defendant completely fails to address the 2019 FEHA amendments which contemplate the cost shifting of a Code of Civil Procedure § 998 offer and require a trial court to find the Plaintiff's 5 PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim was "frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code § 12965, subd. (b)). Defendant fails to address the Williams v. Chino Valley decision. (Williams v. Chino Valley Indep. Fire Dist. (2015) 61 Cal.4th 97.) Defendant cites to old case law which pre-dates both the Williams decision and the 2019 FEHA amendments. (Opposition at 6:1-4). The cases cited by Defendant have either been specifically disapproved and overruled of in Williams (e.g., Perez v. County of Santa Clara 111 Cal. App.4th 671 (2003) disapproved of by Williams, supra, 61 Cal.4th at 115.); or otherwise pre-date the Williams decision (e.g., Mangano v. Verity (2008) 167 Cal. App.4th 944, 951; Roberts v. Stanford Univ. (2014) 224 Cal. App.4th 67, 73.) Defendant relies heavily on Roberts but the facts there are readily distinguishable from the facts here. Roberts was under a TRO for harassing his coworker many times; he had received numerous written warnings; and "conceded that he had no evidence to support his discrimination cause of action." (Id. at 69.) Finally, a court is required to provide detailed written findings of fact as to why it believes the award of costs in favor of defendants in FEHA actions. (Rosenman v. Christensen, Miller, Fink, Jacobs (2001) 91 Cal.App.4th 859, 868; Jersey, supra, 97 Cal. App.4th at 831.) “[ W]e therefore impose a non-waivable requirement that trial courts make written findings reflecting the Christianburg/Cummings standard in every case where they award attorney fees in favor of defendants in FEHA actions.” (Rosenman, supra, 91 Cal.App.4th at 868.) Although Rosenman and Jersey both discuss an award of attorneys’ fees, in light of the Williams decision, which found no difference between attorney’s fees and costs to a prevailing defendant, the rationale applies with equal force in any award of costs to prevailing FEHA defendant. C. Delta Dental Is Not Entitled to Costs for Prevailing on the One Non-FEHA claim. Defendant asserts without any case law or statutory authority that it need not show Plaintiffs’ one cause of action for wrongful termination in violation of public policy was frivolous. Defendant’s argument fails for two reasons: 1) courts have held that where a plaintiff pleads FEHA and non-FEHA claims, it would undermine vital antidiscrimination laws to compel an award of costs on the non-FEHA claim (see Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062); “4 - PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and 2) Defendant has failed to apportion any of its costs to the six FEHA causes of action versus the one non-FEHA cause of action. (Id.) Under established case law, where FEHA claims are intertwined with non-FEHA causes of action, the Court may completely deny an award of costs on the non-FEHA claims. This issue was squarely addressed in Roman v. BRE Properties, Inc., which asked the question: “Does the Williams rule of discretion apply to costs that cannot be apportioned between overlapping FEHA and non- FEHA claims or does the mandatory provision of section 1032, subdivision (b), control?” (Roman, supra, 237 Cal.App.4th at 1059) The court answered its question definitively in favor of denying costs for the non-FEHA claims. The court noted: [W]e believe it would weaken private enforcement of vital antidiscrimination and disability rights statutes, “tend[ing] to discourage even potentially meritorious suits by plaintiffs with limited financial resources” [citations], to compel an award of costs under section 1032, subdivision (b), simply because the plaintiff, based on the same alleged misconduct, had pleaded other civil rights theories in addition to his or her FEHA causes of action. (Id. at 1059-1060; See also Dane-Elec Corp. v. Bodokh (2019) 35 Cal.App.5th 761, 775 [“A fair reading of Turner and Roman is that, when necessary to vindicate an express public policy, a specific fee-shifting statute will control over a general statutory provision awarding attorney fees or costs to a prevailing party.”]) Here, it is clear that Plaintiff Begley’s six FEHA and CFRA causes of action were intertwined with her one non-FEHA cause of action. The same operative facts were the basis for each claim. Plaintiff pursued discovery and motion practice based on the same underlying facts. Defendant incurred the same costs in defending all causes of action. Lastly, Defendant has provided no information apportioning its costs as to the FEHA and non-FEHA claims. This is likely because Defendant did not need to apportion costs to each cause of action - it would incur them regardless of whether the claims were based in FEHA or not. In sum, nothing in this case changed because of the inclusion of one non-FEHA cause of action. If the court upholds that this matter was nonfrivolous, the Court must follow established case law and deny any award of costs to Defendant. D. Delta Dental is not entitled to Costs and Expert Witness Fees Incurred Before the Service of the CCP § 998 Defendant’s only argument that it’s entitled to costs is the assertion that plaintiff rejected a _5- PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 998 offer. As discussed above, the statute and case law hold that this is only available if the action is deemed to have been frivolous, and Defendant has not made that showing here. In addition, however, many of defendant’s costs were incurred before the service of the 998 offer and are thus invalid. “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer.” (Cal. Civ. Proc. Code § 998.) Filing and Motion Fees. A quick survey of Defendant’s costs memo shows that most of the costs were incurred long before September 9, 2019. For example, in the “filing and motion fees” section, the Answer ($450), Motion for Summary Judgment ($500), Ex Parte App re Stipulated Trial Continuance ($60) and Joint Stipulation ($20) fees were incurred from November 2018 through August 2019. These are not recoverable under any interpretation of the 998 statute. $1,030 in filing and motion fees must be taxed and stricken. Depositions. Likewise, Plaintiff Kamelia Begley’s first and second deposition days occurred in April 2019; Jennifer Souders’ deposition was taken on May 10, 2019 and Aliza Canciller’s deposition occurred on June 13, 2019. $8,231.55 in depositions costs must be taxed. Service of Process. Most of the “Service of process” costs were also incurred before the September 9, 2019 CCP Section 998 offer. The first medical record subpoenas to Spring Fertility, Laurel Fertility, Kaiser and Dr. Motykie were served in July 2019, months before the 998 offer. $695.77 must be taxed. Expert Witnesses. Defendant seeks $7,080 in expert witness fees ($3,780 for Mr. Cohen and $3,300 for Mr. Greene.) However, Defendant has provided no information as to when these witnesses were retained or when they performed any work on this matter - or any information to evaluate whether whatever work performed was reasonably necessary. Defendant’s opposition fails to attach any invoices indicating the date they worked on this matter - which deprives the court of information as to whether these alleged fees were incurred before or after the CCP § 998 offer. Once a party has properly challenged or objected to a cost item, they are put at issue and “the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Without any information as to when services were rendered, or if they were _6- PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 necessary to the litigation, Defendant has not met its burden, nor is Defendant entitled to to claim any costs it wishes carte blanche. Fees for Electronic filing or service. Defendant provides no dates or details of its $267.30 line item for electronic filing fees. It is unclear to the court or Plaintiff when these were incurred. If they were pre-998 offer, they must be stricken entirely. In summary, the Court must tax $17,334.62 in unverified or pre-998 offer costs. These costs must be taxed either because they are specifically noted in Defendant’s cost memo as having been incurred before September 9, 2019 or are insufficiently documented by Defendant to allow the court to determine when the costs were incurred. E. Plaintiff’s Financial Hardship Begley has submitted a declaration indicating that she has no ability to pay the $23,379 in costs requested by Delta Dental based on her modest salary and income. (Declaration of Kamelia Begley (2-3) Under case law, courts have held that is improper to “scale” or engage in a “means test” to determine how much a losing FEHA plaintiff should pay for Defendant’s costs. (See Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 556; Compare: Huerta v. Kava Holdings (2018) 29 Cal. App.5th 74, 83) As the Arave court noted, applying a means test or scaling is backwards looking: Prospective plaintiffs with meritorious claims trying to decide whether to attempt to vindicate their rights would not be able to predict their exposure. Any attorney advising a prospective plaintiff would have to acknowledge they may lose even a very strong suit and end up being compelled to pay defendant tens of thousands of dollars in expert witness fees. Indeed, if we accepted defendants’ position, our decision would be an object lesson for all future FEHA plaintiffs of the risk of bringing colorable discrimination claims. (Id. at 556) III. CONCLUSION As alleged in the Complaint for Damages originally filed in this action, Kamelia Begley worked for Delta Dental for over five years. She never received a negative overall performance review; and no one has alleged she was a bad employee, or deserved to be terminated solely on the basis of her performance. In fact she received annual raises and bonuses. After informing her i PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. CGC-18-568943 M C C O R M A C K & ER LI CH , LL P 15 0 P O S T S T R E E T , S U I T E 74 2, S A N F R A N C I S C O , C A 94 10 8 TE LE PH ON E: (4 15 ) 29 6- 84 20 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employer of her IVF treatments, she was terminated. She felt that her applications for other jobs were ignored, and she noticed that everyone but her was hired back except her and another woman who had recently taken medical leave. The action was not filed on baseless grounds. During the course of the action, Defendant has never produced evidence clearly demonstrating her claims were baseless. Accordingly, the motion to strike, or in the alternative, to tax costs must be granted. Date: January 8, 2020 MCCORMACK & ERLICH, LLP fon MW 5lch By’ Jason M. Erlich, Esq. Attorney for Plaintiff KAMELIA BEGLEY _8- PLAINTIFF'S MEMO. OF P’S & A’S - MOTION TO STRIKE, OR IN THE ALTERNATIVE, TAX DEF.’S MEMO. OF COSTS BEGLEY V. DELTA DENTAL OF CALIFORNIA, CASE NO. 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