FYBEL, J.
Plaintiff Jordyn Harris sued Scott and Charity Couto
Harris argues the court erred by awarding attorney fees and costs against her because (1) her claims against Inbound were brought in good faith and were not otherwise frivolous, unreasonable, meritless, or vexatious to support such an award under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.); (2) the trial court erred by failing to conclude Harris's denials of certain requests for admission were reasonable at the time so as to avoid liability for "cost of proof" fees and costs under Code of Civil Procedure section 2033.420; (3) the trial court failed to consider Harris's ability to pay such an award; (4) Inbound's notice of motion for prevailing party attorney fees did not expressly identify Harris as the party against whom Inbound sought such an award; and (5) the trial court failed to limit Inbound's cost award to those solely incurred by it. Harris does not challenge the amount of attorney fees awarded under FEHA or as costs of proof.
We affirm. The trial court did not abuse its discretion by awarding Inbound a fraction of the attorney fees it requested under FEHA ($3,751.20) and as costs of proof under section 2033.420 of the Code of Civil Procedure ($4,915.31). Substantial evidence supported the trial court's findings Harris's claims against Inbound were frivolous given the evidence, which included Harris's deposition testimony, showing that Inbound was never Harris's employer. Harris's denials of requests for admissions relating to that issue were not reasonable. The record showed the trial court considered all written and oral argument and evidence presented to it, which included evidence presented by Harris regarding financial hardship. Inbound's notice of motion for prevailing party attorney fees provided clear notice that it sought an award of fees against Harris. Harris also failed to file a motion to strike or tax costs claimed by Inbound in the memorandum of costs pursuant to rule 3.1700 of the California Rules of Court, and thus forfeited the right to object to them.
In December 2013, Harris filed a complaint against Inbound and the Coutos alleging that on December 6, 2012, Harris was hired by Inbound "at the behest of" the Coutos as a full-time nanny to the Coutos' two children. The complaint further alleged that after discovering she was pregnant on August 9, 2013, Harris informed Charity of her pregnancy. On August 15, Charity stated to Harris that a replacement nanny had to be hired, and on September 23, Charity informed Harris that her hours would be reduced from 55 hours per week to 30 hours per week. On October 1, Charity informed Harris that a new nanny had been hired and that Harris's employment was terminated effective immediately.
The complaint contained the following claims against Inbound and the Coutos: (1) wrongful termination "in retaliation of [Harris]'s pregnancy disability," in violation of Government Code section 12940, subdivision (j); (2) wrongful termination in violation of public policy not to "discharge or otherwise retaliate against employees based on pregnancy disability . . . grounded in California statutes including, but not limited to California Government Code §§ 12940 and 12945"; (3) unfair competition in violation of Business and Professions Code section 17200 et seq. based on "Defendants' violations of the Labor Code and other laws and regulations as alleged in this complaint, including Defendants' wrongful termination of Plaintiff"; (4) withholding personnel and time records in violation of Labor Code section 1198.5; and (5) failure to furnish wage and hour statements in violation of Labor Code sections 226 and 226.3.
Inbound and the Coutos collectively filed a motion for summary judgment or, in the alternative, for summary adjudication. The trial court granted summary judgment in favor of Inbound, stating, "[T]he court GRANTS summary judgment in favor of Defendant Inboundprospect, Inc., because it was never plaintiff's employer. [¶] An employer must do more than simply process paychecks. The employer must exercise control over hours, working conditions and wages of the employees. [Citation.] Plaintiff had no desire to work at Inbound. She never asked to work there and only visited the office on one occasion to deliver something. She had no[] involvement with this party other than payroll processing. Pursuant to [Code of Civil Procedure, section] 437c[, subdivision] (p), Defendant InboundProspect, Inc. met its burden to show Plaintiff could not prove it was her employer. There was no triable issue of material fact on this issue."
In April 2015, judgment was entered in favor of Inbound on the complaint. The judgment stated that Inbound "shall recover its costs per Memorandum in the amount of per memo against Plaintiff Harris. Defendant Inbound may seek to recover its attorney's fees by way of motion and, if granted, Defendant Inbound shall recover attorney's fees in the amount of per motion against Plaintiff Harris."
On May 14, 2015, Inbound filed both a motion for attorney fees and a memorandum of costs. In the motion, Inbound sought an award of attorney fees up to "a maximum amount of $60,894.06 (and a minimum amount of $24,784.44.)" The notice of motion further stated: "The legal basis for the Motion is Cal. Code of Civil Procedure, section 2033.420 and Cal. Gov't. Code section 12965(b). [¶] The factual basis for this Motion is that Defendants' Motion for Summary Judgment ("MSJ") that was granted in favor of Inbound because the Court determined it was not Plaintiff's employer, Plaintiff did not exhaust her administrative remedies and Inbound never employed five or more employees. Plaintiff denied a Request for Admission that Inbound did not employ her, and Plaintiff's claim under the Fair Employment and Housing Act (`FEHA') was frivolous as Plaintiff did not meet even the most basic elements."
In the memorandum of costs, Inbound sought costs in the total amount of $4,191.17, comprised of $1,244.80 in filing and motion fees, $2,745.87 in deposition costs, and $200.50 in service of process fees.
Harris filed an opposition "to Defendant Inboundprospect, Inc.'s Motion for Attorney Fees and Memorandum of Costs." She did not file a motion to strike or tax costs.
The trial court invited briefing by both sides regarding the attorney fees sought, specifying the nature of additional information the court requested. Inbound and Harris submitted further briefing to the court.
The trial court granted Inbound's motion for attorney fees and awarded it "reasonable fees in the sum of $4,915.31 for cost-of-proof of Request for Admissions, and $3,751.20 for defense of the FEHA claim, for a total of $8,666.51." The trial court denied Harris's request for an order taxing costs that was contained in her opposition to Inbound's motion.
Harris thereafter requested that the clerk dismiss with prejudice the case against the Coutos and the clerk did so. The judgment was amended to state that Inbound was entitled to $4,191.17 in costs pursuant to its memorandum of costs and attorney fees in the amount of $8,666.51, for judgment in the total amount of $12,857.68 in favor of Inbound and against Harris. Harris appealed from the judgment.
In her opening brief, Harris argues the trial court erroneously awarded Inbound $3,751.20 in prevailing party attorney fees under FEHA because the record did not show Harris's pursuit of her claims against Inbound was unreasonable, frivolous, meritless, vexatious, or groundless. For the reasons we explain, the trial court's attorney fees award under FEHA did not constitute an abuse of discretion.
Government Code section 12965, subdivision (b), provides in relevant part: "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees." The California Supreme Court in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 held: "[T]he Christiansburg[Garment Co. v. EEOC (1978) 434 U.S. 412] standard applies to discretionary awards of both attorney fees and costs to prevailing FEHA parties under Government Code section 12965(b). To reiterate, under that standard a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust. [Citation.] A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so. [Citation.]"
In Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at pages 421-422, the United States Supreme Court stated the federal standard that a trial court must use in exercising its discretion in awarding fees and costs to prevailing defendants in the context of Title VII employment discrimination litigation, as follows: "To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."
Citing Williams, the trial court explained its findings and reasoning in support of the prevailing party attorney fees award in favor of Inbound under FEHA as follows: "The foregoing holding supports a finding in the subject action that [Harris]'s continued litigation of this action against Inbound Prospect was `objectively without foundation', or `groundless', when: [¶] (1) The `Family/Nanny Work Agreement' was produced, which clearly stated that the parties to the agreement were `Charity and Scott Couto (the parents) and Jordyn Harris (the nanny)'. [Citation] [¶] (2) At that point in time when [Harris] learned during the litigation that Inbound Prospect did not have the minimum five employees required in its business to subject it to FEHA claims. Said point in time, at the latest, occurred when defendant Scott J. Couto, CEO of Inbound Prospect testified in deposition on 1-21-15 that the Inbound never had five employees during the time plaintiff alleges she worked for Inbound-per the complaint, from on or about 12-6-12 to 10-1-13. [Citation.] [¶] (3) Plaintiff's deposition was taken on 10-14-14, during which she testified as follows:
The minute order also stated the court granted summary judgment in favor of Inbound because it was never Harris's employer.
Harris does not challenge the court's summary of the evidence relied upon by the court in awarding prevailing party attorney fees under FEHA to Inbound. Instead, Harris argues the facts support a finding that Inbound might be "a potentially liable employer or `joint employer' of [Harris], but they are certainly sufficient to show that [Harris]'s complaint was neither unreasonable, frivolous, meritless or vexatious or groundless because of how California law determines who is or may be an employee's `employer.'" She argues definitions of "employer" and "employee" in California are "far from clear," citing the definitions of employer under FEHA in Government Code section 12926, subdivision (d), and the Industrial Welfare Commission Wage orders. She also relies on evidence that her payroll-related documentation included Inbound's name (because the Coutos used Inbound for payroll processing for Harris) to argue that her pursuit of employment-related claims against Inbound as an employer was reasonable.
The evidence cited by the trial court, however, showed the lack of any basis for Harris to continue pursing claims based on a belief Inbound was an employer within the meaning of FEHA. Her employment agreement was expressly between her and the Coutos—a fact known to her and her counsel before the complaint was filed in this case. She testified that in her understanding of what employment meant, she was never employed by Inbound or desired to be employed by Inbound—another fact known to her before the complaint was filed. Through discovery, she learned that Inbound never had the requisite number of five employees for it to qualify as anyone's employer under FEHA. As pointed out by the trial court, the simple fact that an entity processes payroll for an employee and thus appears on various payroll-related documents—without more—does not show the existence of an employment relationship between the entity and the employee. Although Harris heavily relies on the fact that her W-2 form identified Inbound as her employer (which was later corrected by the Coutos to reflect Charity as Harris's employer after "rumors" Harris might sue following her employment termination), Harris wishes for the court to consider that fact in a vacuum. The trial court did not abuse its discretion by considering all of the other evidence before it showing that Harris knew she worked for the Coutos and that the entry on her W-2 form referring to Inbound resulted from its role in processing her payroll.
Furthermore, there is nothing in the record to suggest any variations in the definitions of the term employee or employer in the codes or regulations supported Harris's assertion that she reasonably believed Inbound was her employer.
Harris contends the trial court erroneously awarded Inbound $4,915.31 in costs of proof under Code of Civil Procedure section 2033.420. We review that award for an abuse of discretion. (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.)
In a civil action, a party may propound a written request that another party "`admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.'" (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 351-352.) Section 2033.420 of the Code of Civil Procedure provides: "(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
"(b) The court shall make this order unless it finds any of the following:
(Italics added.)
The determination as to "`"whether `there were no good reasons for the denial,' whether the requested admission was `of substantial importance,' and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court."'" (City of Glendale v. Marcus Cable Associates, LLC, supra, 235 Cal.App.4th at p. 352.)
During discovery, Inbound propounded the requests for admissions to Harris that included request No. 1: "Admit that . . . YOU were not employed by INBOUNDPROSPECT," and request No. 6 "Admit that the termination of YOUR alleged employment with INBOUNDPROSPECT was not in violation of any provision of the Fair Employment and Housing Act." To each of these requests, Harris responded, "Deny."
Harris does not dispute that she denied the two requests for admission in question, or that Inbound incurred expenses in proving the truth of the matter asserted in each request. Instead, she argues the trial court should have concluded she had reasonable grounds to believe that she would prevail on those issues. Harris makes the same argument in challenging the costs of proof award as she made in challenging the FEHA attorney fees award—arguing evidence that Inbound was involved in processing her payroll and her attorney's analysis of that evidence rendered her denial of requests for admissions that Inbound was not her employer reasonable.
Based on all the evidence before it, however, the trial court concluded it was unreasonable for her to maintain that Inbound was her employer, as defined by FEHA or otherwise, when she made her denials to the requests for admission on that point. The trial court's conclusion was supported by the same evidence cited by the court in awarding prevailing party attorney fees in favor of Inbound under FEHA as discussed ante.
Although the trial court concluded that a costs of proof award in favor of Inbound was appropriate, it awarded a fraction of the costs sought by Inbound. The court explained in its minute order: "Inbound seeks 50% of the attorney fees incurred in proving [Harris]'s response to the request for admission was false commencing on 2-26-14, when the responses were received, to the date summary judgment was granted in Inbound's favor, with the remaining fees attributed to one entity by Inbound, `the Couto Household', which is not a party to this action. The other parties on whose behalf the fees were incurred are alleged to be two individual defendants, Scott Couto and Charity Couto also represented by Inbound's counsel. [¶] Other than describing the two Couto defendants as `the Couto Household,' no evidence is offered to support that these two defendants should not be required to bear their proportionate share of the costs."
Harris does not challenge the amount of the costs of proof of award.
Harris argues that she was justified in denying the requests for admission because the consequence was to permanently take those issues out of the case and she might have later discovered Inbound "was in fact a `joint employer' or `actual employer' based on legal definitions of the words, `employee' and `employer.'" Harris chose to take the risk of being liable for costs of proof by denying the requests for admissions in the hope that she might later discover evidence that supported her employment claims against Inbound.
In Grace v. Mansourian, supra, 240 Cal.App.4th at page 531, a panel of this court stated: "The purpose of requests for admissions is to expedite trial by `setting at rest a triable issue so that it will not have to be tried.' [Citations.] If there was no reasonable basis to deny the requests, as was the case as to liability here, then that is exactly why an award is proper. [¶] Nor are we persuaded by defendants' assertion they did not have to make a `"premature admission[]"' but could wait until trial and even after all the evidence had been admitted to concede liability. This may be correct in some circumstances but here, with the exception of the additional opinion of liability from the accident reconstruction expert, the evidence of liability did not change from the time of the accident until the conclusion of trial. [¶] To justify denial of a request, a party must have a `reasonable ground' to believe he would prevail on the issue. (§ 2033.420, subd. (b)(3), italics added; see Brooks v. American Broadcasting Co.[(1986)] 179 Cal.App.3d [500,] 511 [party must have a `reasonably entertained good faith belief' it will prevail].) That means more than a hope or a roll of the dice. In light of the substantial evidence defendant was at fault, plus defendants' apparent understanding of the weakness of their position, as evidenced in their opening statement, defendants' sole reliance on defendant's perception he entered the intersection on a yellow light was not a reasonable basis to believe they would prevail."
Harris also argued the trial court erred by disregarding evidence that Scott used Inbound "as his alter ego, to benefit his household and then deny [Inbound]'s employer status or joint employer status when litigation became rumored in October 2013 upon [Harris]'s termination." As pointed out in the respondent's brief, Harris did not raise any reverse corporate piercing/alter ego argument in the trial court to justify pursuing employment claims against Inbound. We therefore do not entertain it now. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46 [argument "not properly cognizable on appeal because it was never made in the trial court"].)
To the extent Harris argues in her opening brief that it was reasonable for her to believe Inbound was her employer simply because she took direction as nanny to the Coutos' children from Scott, Inbound's president and chief executive officer, any such argument is without merit.
Harris argues the trial court erred "when it failed to consider Plaintiff Harris'[s] ability to pay attorney's fees and costs based on her submitted evidence that she has little means to pay any attorney fees or costs." In Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203-1204, the appellate court held that in a FEHA case, "a plaintiff's ability to pay must be considered before awarding attorney fees in favor of the defendant."
In its minute order, the trial court stated it had fully considered the parties' written and oral arguments and the evidence presented before ruling on the motion for prevailing party attorney fees. The court ordered supplemental briefing on the issue of attorney fees. Harris's written opposition to Inbound's supplemental brief filed in support of its motion for prevailing party attorney fees and Harris's declaration, which the court stated it considered, detailed her financial condition and argued for the denial of the motion on that basis among others. (See Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72-73 [record showed court reviewed plaintiff's brief and declaration regarding financial hardship].) On this record, we conclude the trial court properly considered Harris's financial condition.
In her opening brief, Harris also argues: "The trial court violated plaintiff's constitutional due process under state and federal law because it awarded attorney's fees and costs against a party who was not identified within the [Inbound]'s `notice of motion' and erred in awarding [Inbound] attorney['s] fee[] and costs on this basis." Harris is and has always been the only plaintiff in this case. Inbound's notice of motion sought prevailing party attorney fees under Government Code section 12965 (necessarily sought against its opponent) and costs of proof damages under section 2033.420 of the Code of Civil Procedure because "the Court determined it was not Plaintiff's employer, Plaintiff did not exhaust her administrative remedies and Inbound never employed five or more employees. Plaintiff denied a Request for Admission that Inbound did not employ her, and Plaintiff's claim under the Fair Employment and Housing Act (`FEHA') was frivolous as Plaintiff did not meet even the most basic elements." It is abundantly clear from the notice of motion and accompanying memorandum of points and authorities that Inbound sought an attorney fees award against Harris.
Harris does argue that she was confused about that point or that there was another party against whom such an award might be sought. Instead, citing section 2023.040 of the Code of Civil Procedure and, therefore, necessarily referring to costs of proof award against her, she argues that under the Civil Discovery Act, any motion for discovery sanctions "requires that the name of each individual must be identified in the notice of motion or constitutional due process is violated." But "an award of costs and proof under section 2033.420 [of the Code of Civil Procedure] is not a `discovery sanction' or a `penalty' for engaging in `[m]isuses of the discovery process' . . . Costs of proof in connection with requests for admission are awarded if the response is established to be incorrect—not for the misuse of the discovery process." (City of Glendale v. Marcus Cable Associates, LLC, supra, 235 Cal.App.4th at p. 359, fn. omitted.) Even if the notice of motion could be construed as insufficiently giving notice that Inbound sought a prevailing party attorney fees award against Harris, Harris does not address how any such error was prejudicial.
Harris also argues "[t]he trial court erred when it failed to reduce [Inbound]'s `Memorandum of Costs' bill pro-rata for [Inbound] only." Harris, however, failed to file a motion to strike Inbound's memorandum of costs or a motion to tax costs. "The `failure to file a motion to tax costs constitutes a waiver of the right to object. [Citations.]'" (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.)
In the minute order awarding Inbound $4,191.17 in costs, the trial court stated: "Plaintiff in her opposition, sought an order from the court taxing Inbound's costs in its Memorandum of Costs filed 5-15-15, conceding that she had not timely filed a motion to tax costs. [¶] The court, in ordering supplemental filings by the parties, requested additional filings as to the reasonableness of the attorney fees sought by Inbound. [¶] Plaintiff's supplemental filing focused almost entirely on raising additional argument in support of an order taxing Inbound's costs, for which Inbound has no opportunity to respond in writing. [¶] Plaintiff failed to make a sufficient showing that this court, in equity, notwithstanding the foregoing, should tax costs within said Memorandum of Costs."
We find no error.
The judgment is affirmed. Respondent shall recover costs on appeal.
O'LEARY, P. J. and THOMPSON, J., concurs.
"(1) Striking and taxing costs [¶] Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).
