Linda Cobb vs. Superior Court Of California For The County Of Ventura

Case Number

VENCI00568898

Case Type

Hearing Date / Time

Wed, 01/03/2024 - 10:00

Nature of Proceedings

Plaintiff Linda Cobb’s Motion to Tax Costs of the County of Ventura

Tentative Ruling

For Plaintiff Linda Cobb: Lanny M. Tron, Terry L. Tron, Tron & Tron

For Defendant the Superior Court of California, County of Ventura: Corrie J. Klewkowski, Tory S. Polin, Quarles & Brady LLP

For Defendant the County of Ventura: Tiffany N. North, Brett B. McMurdo, Christine Renshaw, Office of County Counsel

RULING

For all reasons discussed herein, plaintiff Linda Cobb’s Motion to Tax Costs of the County of Ventura is denied. The County of Ventura shall recover all costs contained in its memorandum of costs filed and served on November 17, 2023.

Background

Plaintiff Linda Cobb filed her complaint in this matter on August 8, 2022, alleging three causes of action against defendants the Superior Court of California for the County of Ventura (the Superior Court) and the County of Ventura (the County) (collectively, defendants): (1) unlawful disability discrimination in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA); (2) unlawful retaliation in violation of FEHA; and (3) failure to prevent discrimination and retaliation in violation of FEHA.

As alleged in the complaint:

Plaintiff commenced her employment with defendants in defendants’ records department in November 1993. In 2005, plaintiff became a judicial assistant and received pay raises, laudable job evaluations, and compliments from her superiors and co-workers.

In December 2017, plaintiff developed a left arm condition for which she sought medical treatment. Plaintiff made defendants aware of her arm condition and provided defendants with work restrictions prescribed by plaintiff’s doctor. Defendants advised plaintiff that the work restrictions could not be accommodated. Defendants granted plaintiff medical leave. Plaintiff returned to work in January 2018 without being provided any workplace modifications.

In September 2018, plaintiff developed a right arm condition for which she sought medical treatment. Plaintiff provided defendants with a doctor’s note and work restrictions prescribed by her doctor. Defendants granted plaintiff a series of medical leaves advising plaintiff that the restrictions could not be accommodated.

In March 2019, following surgery to repair plaintiff’s right arm, defendants accommodated plaintiff by making modifications to her workplace. Thus, plaintiff returned to work in May 2019. Plaintiff performed her job duties for the next several months of 2019.

In June 2019, plaintiff filed a claim against defendants for harassment by plaintiff’s supervisors which resulted in injuries to plaintiff’s cardiovascular and muscular system. In July 2019, plaintiff provided defendants with a doctor’s note and work restrictions. Plaintiff continued to work through 2019.

In November 2019, plaintiff was further medically evaluated as to her disabilities. Defendants were provided with the doctor’s report and work restrictions which were nearly identical to those provided in March 2019. Defendants would only accommodate plaintiff with medical leave contending that the work restrictions could not be accommodated. Defendants refused to allow plaintiff to return to work with the same workplace modifications she had earlier in 2019.

In March 2020, when the Covid pandemic forced the closure of the Superior Court, defendants placed plaintiff on further medical leave through June 2020. On July 9, 2020, plaintiff was advised she would be terminated because she was limited in her ability to perform essential functions of her job and that defendants would not grant a one-year medical leave for surgery or therapy as requested by plaintiff despite defendants having previously accommodated plaintiff through workplace modifications in 2019. Plaintiff requested to be returned to work over the next few months with the same modifications she had in 2019 or to be granted leave of a year for surgery and therapy but defendants rejected plaintiffs’ proposals.

Defendants served plaintiff with a notice of intent to terminate on September 29, 2020 (the termination notice). In response to the termination notice, plaintiff offered a written list of suggestions and accommodations on October 20, 2020. After receiving no response, plaintiff objected to the notice of intended termination.

Eventually, defendants hired an ergonomic expert who found that plaintiff’s disabilities could be accommodated. The expert offered workplace modifications so that plaintiff could work. In January 2021, plaintiff returned to work with the ergonomic expert’s prescribed accommodations. Almost immediately, plaintiff was subjected to unfavorable work assignments, increased scrutiny, micromanagement, unwarranted criticism, limited breaks, and threatened termination.

In mid-January 2021, defendants sought to terminate plaintiff by claiming that plaintiff had been overpaid vacation/leave benefits. Defendants demanded repayment. Plaintiff opposed these efforts. Defendants then deducted the overpayment from plaintiff’s wages and conducted a disciplinary hearing as to plaintiff’s termination. Defendants failed to appoint an impartial hearing officer and did not advise plaintiff that she had a right to call witnesses and present evidence at the disciplinary hearing. Defendants terminated plaintiff on July 1, 2021.

On October 5, 2022, the Superior Court filed its answer to plaintiff’s complaint generally denying its allegations and asserting eleven affirmative defenses. The County filed its answer to the complaint on October 10, 2022, generally denying its allegations and asserting twenty-two affirmative defenses including that plaintiff did not have an employment relationship with the County.

The County filed a motion for summary judgment which was granted on September 20, 2023. Judgment in the County’s favor was entered on November 6, 2023.

The County filed and served its memorandum of costs on November 17, 2023, claiming total costs of $6,322.47. Plaintiff now seeks to tax mediation fees totaling $1,966.67, arguing that the cost is not expressly allowed and was not reasonably necessary to the conduct of the litigation. Plaintiff does not contest the other claimed costs contained in the memorandum.

The County opposes the motion to tax costs.

Analysis

“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.” (Code Civ. Proc., § 1032, subd. (b).) Plaintiff does not dispute that the Moller defendants and the Huntsville defendants are the prevailing parties in this action.

Code of Civil Procedure section 1033.5, subdivision (a) sets forth the allowable costs as a matter of right under section 1032. Section 1033.5, subdivision (b) sets forth items that are not allowed as costs except when expressly authorized by law. Mediation costs are not included in either subdivision.

However, Code of Civil Procedure section 1033.5, subdivision (c) provides in pertinent part:

“(c) An award of costs shall be subject to the following:

“(1) Costs are allowable if incurred, whether or not paid.

“(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.”

“[T]he 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.” (612 South, LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.) “[W]hen [costs] are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

“[T]rial courts have a duty to determine whether a cost is reasonable in need and amount.” (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.)

Plaintiff concedes that the court has discretion to award mediation fees pursuant to Code of Civil Procedure section 1033.5 (c)(4). However, plaintiff argues: “The private mediation in which the parties participated was merely a convenient effort to resolve the case early on, and was not beneficial to the preparation of this case. Indeed, the County did not even make a settlement offer, and thus did not meaningfully participate in the mediation process.”

In opposition, the County argues that it prepared and served a 14-page mediation brief, prior to the mediation, setting forth authority supporting the County’s position that it was not a proper defendant. (McMurdo Dec., ¶ 8.) The County offered a settlement of dismissal in exchange for a waiver of costs and fees. (McMurdo Dec., ¶ 9.)

“Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1139.) “[M]ediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.” (Id. at p. 1143.)

“Encouraging the parties to resolve lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state.” (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209 (Gibson).) While Gibson involved court ordered mediation, voluntary mediation is also often a necessary part of litigation to attempt resolution of a lawsuit at the earliest time possible. Simply because plaintiff rejected the County’s offer of a dismissal for waiver of fees and costs, does not make the mediation any less reasonable or necessary. The County’s position that it is not a proper defendant was well founded and allowed them to prevail on summary judgment.

The County has provided the invoice for the mediation in the amount of $1,966.67. (McMurdo Dec., ¶ 10 & Exh. D.)

Given the facts and circumstances of this case, the County has met its burden of showing that the mediation costs were reasonable and necessary. On that basis, plaintiff’s motion to tax will be denied.