superohtLED ; ‘uperior Court of California ‘ounty of Los Angelos a JAN 1.3 2022 Shen cculve Otc Clerk "—a4 fea Scig — O°PUY GONZALEZ V. COUNTY OF LOS ANGELES 20STCW35594 January 13, 2022 ORDER DENYING MOTION TO STRIKE COSTS Plaintiff filed this case on September 17, 2020. His later filed Second Amended Complaint (SAC) alleged six causes of action. On April 15, 2021, the Court issued an order sustaining County's demurrer except as to causes of action three (FEHA retaliation), four (FEHA failure to prevent retaliation) and five (retaliation pursuant to Labor Code 1102.5). Further, these causes of action were limited to “plaintiff's claim that he reported [a] fight between two deputies and was thereafter subject to retaliation.” ‘The FEHA “protected activities” alleged by plaintiff in the SAC were that plantiff: (1) participated as a witness in a discrimination or harassment complaint; (2) reported or resisted discrimination or harassment and (3) requested or used leave under the California Family Rights Act or FMLA.' | On July 29, 2021, County filed a Motion for Summary Judgment/Adjudication (“MSJ"). Among other things, County argued that plaintiff did not engage in FEHA protected activities. Plaintiff's Opposition to the MSJ completely failed to respond to this argument and instead only addressed plaintiff's alleged protected activity under the Labor Code. Similarly, plaintiff's Opposing Separate Statement (which included over 100 so-called “Additional Material Facts”) failed to raise any issue regarding protected activities under plaintiff's FEHA claims.” In its Order of November 4, 2021 granting the MSJ, the Court held that plaintiff had conceded that the protected activities element of his FEHA retaliation claims could not be met. See also Schuler v. City of Los Angeles, 62 Cal. App. 5S" 793, 800 (2021) (a party who fails to present argument and authority for his causes of action abandons them). "The Labor Code retaliation claim vaguely referenced “protected activities,” by citation to a laundry list of federal and state laws as well as Los Angeles County policies and guidelines. ? Itis also worth noting that the request for continuance in plaintiff's Oppesition to the MSJ did not claim that more time was needed to conduct discovery regarding FEHA protected activities,As prevailing party, County then submitted a Memorandum of Costs, seeking $13,943. Plaintiff has now filed his Motion to Strike Costs. He first concedes that “prevailing parties are usually entitled to costs.” He then argues that, because the Court allowed his FEHA claims to proceed at the demurrer stage, his action was not “frivolous, unreasonable or groundless when brought.” Plaintiff cites Williams v. Valley Indep. Fire Dist., 61 Cal. 4° 97 (2015), as providing guidance to trial courts in awarding costs in a FEHA case. Finally, plaintiff does not contend that County's costs were unreasonable. In opposition, County argues that the Motion to Strike should be denied because plaintiff pursued claims that were either legally flawed or factually unsupported and that plaintiff tried to change his theories to stave off summary judgment. Plaintiff's Reply first makes the strained argument that County'is trying to “punish” him by seeking costs. ‘The Reply then acknowledges that a FEHA plaintiff who continues to litigate a case withott an objective basis for believing it has merit can be subject to costs, but claims that, there is no basis for such an award here. And, once again, no argument is made that the costs are unreasonable. Upen due consideration, County has the better of the argument and the Motion to Strike Costs will be denied. While itis true that plaintiff's FEHA claims withstood demurrer, that was based only upon a reading of the SAC, the facts of which the Court had to accept as true. Since that time, plaintiff had the opportunity to find evidence showing that he was involved in the protected activities alleged in the third and fourth causes of action, but apparently he was unable to do so. Nevertheless, plaintiff chose not to dismiss these claims, requiring defendant to engage in highly contentious litigation and requiring the filing of a MSJ seeking to have these claims dismissed. In other words, plaintiff continued litigating his FEHA retaliation claims without any objective basis for believing he could establish a necessary element of these claims. He should have dismissed these claims when he realized this or, at the latest, when the MSI was filed, He did not do so and this is a sufficient reason by itself for allowing County to recover costs under Williams. See also Ramon v. BRE Properties, Inc., 237 Cal. App. 4" 1040, 1057 (2015). Further, and despite the arguments in his opposition to the MSJ, plaintiff ultimately had no evidence that he suffered from an adverse employment action or had damages. This complete lack of evidence was fatal to both his FEHA claims as well as his claim under the Labor Code.In sum, the Court concludes that this was one of those thankfully very rare cases which ‘was brought for reasons other than to remedy personal harm to the plaintiff. Apparently, plaintiff and his attomeys believe that there are personnel problems in the Sheriff's Department and itis, their mission to “curtail” them. This is evidenced by the frequent comments made by plaintiff's counsel in the media.’ Plaintiff and his attorneys then came up with a series of unproven allegations, including claims about being unable to take family leave, “unusual misdemeanor arrests,” “illegal quota programs” and actions involving other deputies. Plaintiff sought vastly overbroad discovery in part to assist his attorneys with other cases against the County. All of this resulted in the County having to expend enormous time and resources to defend what tured out to be a frivolous, unreasonable and groundless case when brought and/or which plaintiff continued to litigate after it clearly became so. Gov't Code 12965(b); Roman, supra at 1057 Accordingly, good cause having been shown, IT IS ORDERED that plaintiff's Motion to Strike Costs is Denied. Notice by defendant Y Ay : JAN 13 2022 Mi a > See, e.g., Exhibits attached to November 24, 2021 Declaration of Mira Hashmall. 3