Case Number: BC537988??? Hearing Date: September 02, 2016??? Dept: 58
JUDGE JOHN P. DOYLE
DEPARTMENT 58
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Hearing Date: Friday, September 2, 2016
Calendar No: 5
Case Name: Muniz-Ortega, et al. v. Tatung Company of America, Inc.
Case No.: BC537988
Motion: Motion for Attorney Fees and Costs on Appeal
Moving Party: Defendant Tatung Company of America, Inc.
Responding Party: Plaintiffs Alfredo Muniz-Ortega, Juana Navarro, and Gloria Diaz
Tentative Ruling: Motion will be continued to permit (1) Plaintiffs to submit updated information concerning their present financial situations and (2) the parties to brief the effect of the Court of Appeal?s award of costs on appeal. At the hearing, the Court will set a new hearing date and a briefing schedule as set forth below.
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Background ?
On 2/28/14, Plaintiffs Alfredo Muniz-Ortega, Juana Navarro, and Gloria Diaz filed this action against Defendant Tatung Company of America, Inc. asserting causes of action for (1) FEHA age discrimination, (2) FEHA failure to prevent age discrimination, (3) FEHA retaliation, and (4) wrongful termination in violation of public policy. On 3/5/15, the Court granted Defendant?s motion for summary judgment. On 3/20/15, Defendant filed a memorandum of costs seeking $15,002.55. On 4/1/15, judgment was entered in favor of Defendant.
On 4/27/15, Plaintiffs filed a motion to tax or strike costs. On 4/28/15, the Court amended the judgment to add costs of $15,002.55 pursuant to CCP ? 685.090. On 8/21/15, the Court granted Plaintiffs? motion to strike the costs pursuant to Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 109, 115 , applying the discretion in Gov?t Code ? 12965(b) and the Christiansburg standard (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422) to an award of costs to a prevailing defendant in a FEHA action. In striking Defendant?s costs, the Court concluded that only Plaintiffs? retaliation-based claims were objectively without foundation but Plaintiffs? financial situation, the relatively small portion of this litigation that the retaliation-based claims constituted, and the lack of Defendant?s opposition supported the Court?s exercise of discretion to strike Defendant?s costs.
Plaintiffs appealed the judgment. On 3/28/16, the Court of Appeal affirmed the judgment. Remittitur issued on 7/11/16.
Motion for Attorney?s Fees and Costs on Appeal ?
Pursuant to Gov?t Code ? 12965(b), Defendant requests attorney fees and costs incurred on appeal. Cf. Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 489 (addressing CCP ? 425.16(c), the anti-SLAPP statute, and stating that a statute authorizing attorney fees at the trial court level also includes appellate attorney fees unless specifically precluded).
Gov?t Code ? 12965(b) authorizes an award of attorneys? fees to a prevailing defendant in a FEHA action if the Court, in its discretion, determines that the plaintiff?s case was frivolous, unreasonable or groundless, or the plaintiff continued to litigate after the case clearly became so. Christiansburg, 434 U.S. at 422. See also Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 820; Leek v. Cooper (2011) 194 Cal.App.4th 399, 419-20. Pursuant to Williams (61 Cal.4th at 109, 115), the discretion in Gov?t Code ? 12965(b) and the Christiansburg standard applies to costs as well. Applying Lunada, Defendant may be entitled to attorney fees and/or costs on appeal.
The parties dispute whether Plaintiffs? appeal (and the petition for review to the Supreme Court) was frivolous, unreasonable, or groundless. The Court notes that Plaintiffs did not appeal the Court?s ruling on the retaliation-based claims which the Court had previously found to be objectively without foundation. See Manolatou Decl. ? 9, Ex. A. However, the Court hereby continues the hearing on this motion for two other reasons which may be controlling.
First, Plaintiffs? opposition has argued in part that they are indigent and cannot pay attorney fees and costs on appeal (Opp?n p. 2:20). But Plaintiffs rely on the same declarations filed on 4/27/15 (see Lange Decl. ? 4, Ex. 1) and Plaintiffs fail to make any evidentiary showing concerning Plaintiffs? present financial situation. Therefore, the Court will permit Plaintiffs to submit updated information concerning their present financial situation.
Second, the Court notes that in affirming the judgment against Plaintiffs, the Court of Appeal awarded Defendant costs on appeal. Manolatou Decl. ? 13, Ex. E p. 13. However, Defendant did not appeal the Court?s 8/2/15 ruling striking Defendant?s costs. Defendant?s opening appellate brief did not address or request costs (see Manolatou Decl. ? 10, Ex. B); and Plaintiff?s petition for review to the Supreme Court did not address the Court of Appeal?s award of appellate costs (see id. ? 14, Ex. F). All of these facts suggest that costs on appeal pursuant to Gov?t Code ? 12965(b) and Williams were not considered. In light of the limited effect of a Court of Appeal?s award of costs (see generally Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 924 (addressing entitlement to attorney fees when no costs are awarded)) and in the absence of any suggestion that the Court of Appeal has necessarily and conclusively established Defendant?s entitlement to costs on appeal pursuant to Gov?t Code ? 12965(b) (see Sargon Enterprises, Inc. v. Univ. of Southern Cal. (2013) 215 Cal.App.4th 1495, 1505 (addressing the law of the case doctrine)), the Court finds that its exercise of the discretion afforded by Gov?t Code ? 12965(b) and the Christiansburg standard is appropriate for exercise as to Defendant?s request for both attorney fees and costs on appeal.
In sum, if Plaintiffs submit evidence revealing substantially similar financial situations as their evidence submitted in 2015 supported, the Court might find itself inclined to deny Defendant?s motion for attorney fees and costs incurred on appeal based on Christiansburg and Williams, without determining whether Plaintiff?s appeal was frivolous, unreasonable or groundless. But if the Court of Appeal?s award of costs on appeal is conclusively binding, then the Court might only deny Defendant?s motion for attorney fees incurred on appeal. Continuance of this motion is necessary to permit the parties to address these issues.
Order ?
On the Court?s own motion, the hearing on the current motion is continued to October 4, 2016. Moving party on this motion shall file and serve a no-more-than 8-page supplemental brief on or before September 14. Responding party shall file and serve a responsive 8-page-or-less supplemental brief (declarations concerning Plaintiffs? financial situation are excluded from the page limit) on or before September 27. A reply brief is not needed.