Richards vs. LoanDepot, Inc.

Prior to that, on December 17, 2024, the Court granted nonsuit as to Plaintiff’s Retaliation Claim under Labor Code section 1102.5. (See ROA No. 1069.)

This left the second, fifth, sixth, and tenth causes of action to be tried. Plaintiff did not pursue the tenth cause of action.

After trial, the jury found that no harassment had taken place and found for Defendants on the remaining causes of action. [2/7/25

Minute Order (ROA #1214); Special Verdict Form (ROA #1218); Jury Polling Sheet (ROA #1271).]

Judgment was entered on 3/6/25. [ROA # 1227.] Notice of entry was served electronically and by email on 4/2/25. [ROA # 1233.] Plaintiff has appealed from this judgment. [ROA #1240.]

Defendants filed and emailed their initial memorandum of costs, limited to costs incurred prior to nonsuit on the non-FEHA retaliation claim, on 4/17/25. [ROA # 1246.] Plaintiff filed her motion to strike or tax costs on 5/7/25. [ROA # 1263.] The court did not strike the memorandum of costs but did tax costs. [2/2/26 Minute Order (ROA #1393).] Plaintiff did not appeal from this order.

Defendants also filed a motion for attorneys’ fees and costs on 6/2/25. [ROA # 1289.] This motion sought fees incurred solely on the FEHA claim that went to trial after the nonsuit and includes a separate memorandum of costs for costs incurred solely in connection with Plaintiff’s remaining FEHA claim after nonsuit was granted on Plaintiff’s section 1102.5 whistleblower retaliation claim. [David Decl. (ROA ## 1209, 1283), Ex. N.] The court granting the motion, awarding Defendants fees but not in the total amount they requested. [2/3/26 Minute Order (ROA #1395).] Plaintiff has appealed from this order. [ROA #1405.]

In her motion to strike or tax costs basically argued that Defendants were not entitled to recovery costs under FEHA because Plaintiff’s case was not frivolous. Secondarily, she argued that even if Defendants were entitled to recover certain costs some claimed were excessive or otherwise not recoverable.

Specifically, as to the $116,772.93 in expert witness fees claimed by Defendants, Plaintiff argued:

As stated above, in the event that the Court determines that Plaintiff’s action was frivolous Defendant may be entitled to costs of some expert fees. Here, Defendant has identified numerous experts of which many were not identified as witnesses to the litigation nor do their fees appear to be reasonable. The following expert witnesses identified in line 8(b) either appeared at trial or were identified for the litigation: Janey Seymour, Judy Ho, Paul Reardon, Eva Gentile, and NERA (Elizabeth Newlon), with a total cost of $35,123.75. However the remaining expert witnesses identified by Defendants were never even deposed nor identified as witnesses, and in some instances their charges are

completely unreasonable, such as “SEDA” and Greenfield charging $25,000 and $10,000 respectively for 1 hour of work each. The witnesses that should be taxed are as follows: Investigative Research, Mark Kalish, Ellen Stein, IMS Legal, SEDA, Greenfield, Jason Koontz, and Upstream Intelligence for a total of $81,649.18. [Motion MPA (ROA #1263) at 7-8.]

Defendants’ opposition to Plaintiffs’ motion to strike or tax cots was essentially that none of the costs claimed were incurred on the FEHA claim but only on the Labor Code section 1102.5 whistleblower claim, so Defendants were entitled to recover the costs under Code of Civil Procedure sections 1032 and 1033.5 as prevailing party without a finding the claims were frivolous. [Opp. (ROA #1323) at 1-2, 5.]

Defendants did not provide any other information as to the basis for recovery of expert witness fees.

The court understood Plaintiff’s argument to be that if the court found her FEHA claims frivolous expert fees are recoverable, but she argues for a less amount than that sought. Govt. Code §12965(b). Otherwise, they are not recoverable under Code of Civil Procedure section 1033.5(b)(1).

Plaintiff’s motion to strike or tax costs and Defendants’ motion for attorneys’ fees and costs under FEHA were heard together and involved a number of moving parts and issues. As to the motion to tax, the issue of allocation was discussed but expert witness fees as costs was not specifically discussed.

The court took both motions under submission.

In its final order on the motion to tax, the court found, as argued by Defendants, that the costs sought to be recovered were largely incurred on whistleblower claims versus FEHA claims. Under this reasoning, though, the expert witness fees were not recoverable on the record presented because while they would be recoverable under FEHA were Plaintiff’s FEHA claims frivolous, they were not recoverable under Code of Civil Procedure section 1033.5.

Accordingly, the court’s order taxed the expert witness fees in their entirety - $116,772.93. [2/2/26 order at 3-4.]

Apparently, however, Defendants had served a 998 offer on Plaintiff prior to trial, which she did not accept, that was not in the court’s record. [David Decl. (ROA #1399), ¶ 2 and Ex. A.

Legal Standard

Generally, a motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. Code Civ. Proc. § 1008(a). Defendants’ motion was filed within this time frame. Moreover, as previously noted by the court and set forth below, the court retains the power to reconsider its own order regardless of the timing.

A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. Code Civ. Proc. § 1008(a). The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.

The burden under section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at 212–213. The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.

Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500. A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. The court cannot consider matters presented at the earlier hearing. Code Civ. Proc. §1008(f). Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling.

Gilberd v. AC Transit, supra, 32 Cal. App. 4th at 1500.

Apart from a parties’ motion, if the court itself “determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” Code Civ. Proc. § 1008(c). Further, it should be noted, the court has the inherent power to reconsider its ruling if it believes it to be in error. Le Francios v. Goel (2005) 35 Cal.4th 1094, 1108; Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1307-1308.

Discussion

Here, the different fact is the 998 offer of which the court was not aware.

Defendants did not bring it to the court’s attention because, as they describe it, Plaintiff “did not argue that the expert witness fees included in the Memorandum of Costs were improper under California Code of Civil Procedure Section 1033.5.” She did not expressly argue this. As noted above, however, the court took her to be implicitly arguing this by her statement that “in the event” the court found her claims frivolous Defendants could recover their expert witness fees. Otherwise, from the court’s perspective, why would it matter if the court found her claims frivolous?

In any event, Defendants did not think they had to justify recovery of expert witness fees in the absence FEHA’s recovery provision applying.

In the normal course, the court would have posted a tentative ruling that would have alerted Defendants to this issue, which they could have then addressed at the hearing. But this time, given the number of issues raised by the fee motion and the motion to strike or tax costs, no tentative ruling was posted. Nor did the specific issue of expert witness fees come up at the hearing.

The court finds that the lack of notice to Defendants of the conclusions the court was drawing from the record is a basis to reconsider the order taxing all their expert witness fees. Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1307-1308 (finding court has inherent authority to reconsider final, post judgment order, as well as interim order, on its own motion even when that exercise is triggered by improper motion of party).

On this basis, the court reconsiders its prior order taxing Defendants’ costs. This does not mean, however, that the court need award Defendants all their expert witness fees – or even any of them.

To shift recovery of expert witnesses, a 998 offer must be and have been made in good faith. Here, despite invitation to address the validity of the 998 offer, Plaintiff has not disputed its validity.

Even finding the 998 offer was valid, the court retains discretion whether to award expert witness costs. Martinez

v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1026 (“Finally, section 998 expressly states an award of expert witness fees is discretionary.”); Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 121.

Defendants originally sought $116,772.93 in expert witness fees. In their recent motion, they offered a reduction of $8,359.50. Based on Plaintiff’s original objections, the court will tax $81,649.18, for an award of costs in the amount of $35,123.75.

2. 2024-1424513 Plaintiff Colton Brown’s motion for a new trial is denied. Brown vs. The Kroger Co The requirements and grounds for new trial are entirely statutory; they are stated in Code Civ. Proc. § 657, and are as follows: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

A motion for a new trial is a proper vehicle for relief following the erroneous grant of a motion for summary judgment. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2022) ¶ 18:196, citing Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 22.) A court may also grant a partial new trial on some of the issues. (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 302.)

Plaintiff moves for a new trial with respect to the Court’s 6/18/26 ruling granting Defendant Ralphs Grocery Company’s motion for summary judgment. Plaintiff bases his motion on Subd. (5), (6), and (7) of Code Civ. Proc., § 657.

Procedurally, Plaintiff’s motion is defective and in violation of the Rules of Court. At 19 pages, it exceeds the maximum page limit of 15 pages set forth in CRC, Rule 3.1113(d). A memorandum exceeding the page limit “must be filed and considered in the same manner as a late-filed paper.” (CRC, Rule 3.1113(g).) A court may