Williams v. Simpson Strong-Tie Co. CA1/5

Filed 6/28/22 Williams v. Simpson Strong-Tie Co. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JAMES WILLIAMS,
Plaintiff and Appellant, A162992
v.
SIMPSON STRONG-TIE (Alameda County
COMPANY INC., Super. Ct. No. RG19014788)
Defendant and Respondent.

James Williams appeals from a final judgment following summary
adjudication in favor of Simpson Strong-Tie Company Inc. (Simpson) and the
award of costs to Simpson. He contends the trial court erred by (1) granting
summary adjudication in favor of Simpson on his retaliation claim under the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.) and (2) awarding costs of $46,227.63 to Simpson after a jury verdict
in its favor on the remaining defamation claim. We affirm the grant of
summary adjudication and reverse, in part, the order awarding Simpson
costs, and remand for further proceedings regarding the award of costs.
FACTUAL AND PROCEDURAL BACKGROUND
I. Williams’s Employment at Simpson
In December 2017, Simpson hired Williams as a fabrication layout
technician. Williams reported to the production department supervisor,

1
Chris Altomare. He worked in the production office with three other
employees: Angel Mosqueda, a special products technician; Francisco
Rendon, the production lead; and Norah Picardo. Each employee in the office
had his or her own workstation with a computer that was accessed with a
unique username and confidential password.
Prior to Simpson’s hiring Williams as a fabrication layout technician, a
Simpson supervisor, Damian Flores, asked Angel Mosqueda if he knew
anyone who was qualified for the opening.1 Mosqueda suggested a former
coworker who ultimately did not apply for the position. Flores followed up
with Mosqueda a few weeks later, and Mosqueda then suggested his brother.
However, Mosqueda’s brother was not looking for work at the time and was
not even in the country. Mosqueda and Flores never had any further
discussions about his brother applying for the position. Williams was
ultimately hired for the position, with a probationary period through
April 18, 2018.
On March 19, 2018, Dawn Standart, who was a human resources
generalist at Simpson, retrieved an anonymous note from a locked box in a
break room maintained for communications with human resources. The
handwritten note stated: “I caught the new layout guy James Williams
watching porn Saturday. I could see him through the window.” On
March 26, 2018, Standart retrieved a second anonymous handwritten note
from the locked box, which said: “Fabrication department[:] On Tuesday I
see the new layout guy James looking at porn on his computer trough
window. I wish to remain unamed but you can check computer to see I right.”

1 These facts are relevant to Williams’s retaliation claim, as discussed
post in the opinion.

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(Sic.) Standart gave both notes to Valerie Jones, who was the human
resources business partner.
On March 27, 2018, Williams reported to the production lead, Francisco
Rendon, that browser tabs referencing pornography appeared when he
opened his Web browser. The browser tabs said “ ‘Porn’ ” and “ ‘XXX.’ ”
Williams did not click on the tabs, but he could tell by the words that they
referenced inappropriate content. He found the references very offensive and
disturbing, and they made him feel uncomfortable at work. Williams told
Rendon he did not know why they were there and asked Rendon to report the
incident to information technology (IT). Williams blocked the tabs and never
again saw any other tabs suggesting inappropriate Web sites.
On the same day, Mosqueda, who shared an office with Williams, sent
an e-mail to Standart stating: “This is regarding an incident that occurred
earlier today. James Williams the new layout technician was approached
about completing his LMS training. When James opened up his web browser
I overheard there were some inappropriate sites saved on his recent history.
James called Francisco Rendon (who’s now in charge of the Production Office)
and tried to shift the blame on someone else. Francisco didn’t see anything
just told him not to click on anything you’re not supposed to. I personally
have never seen him look at anything inappropriate on his computer but IT
department can find out for certain. I would hate to see anyone get in trouble
but if it’s true, what he’s doing is disrespectful to the other employees
working in this office.” (Sic.)
On March 29, 2018, Mosqueda sent an e-mail to Valerie Jones in
human resources, attaching three photographs of Williams’s workstation
with pornography on the computer screen. The e-mail stated: “Valerie,

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[¶] Just wanted to share with you what I noticed on his computer yesterday
and again today.”
Williams completed his training on Simpson’s IT and sexual
harassment policies on April 4, 2018. Williams understood that Simpson’s
policies prohibited employees from accessing pornographic material at work
and that the IT policy prohibited the sharing of passwords and required
employees to lock their session or log off when leaving their computer.
Williams did not share his password with anyone, but he sometimes did not
log off of his computer when he left his office.
On April 9, 2018, Mosqueda e-mailed Jones, Anthony Cervantez, the
plant superintendent, and Ali Syed, the plant manager, attaching 14
photographs showing Williams’s workstation with pornography on the
computer screen. The e-mail stated: “Its uncomfortable having to report this
again but this is the third day I’ve have caught James Williams looking at
inappropriate content at his work station since the last incident I reported. I
know the pictures are a little blurry but they can be verified by checking his
internet history and see that this has occurred on numerous occasions. I also
have them saved on my phone if you need to verify the image metadata.”
(Sic.)
Jones requested that Tou Vue, a senior IT systems analyst, review
Williams’s browsing history. Vue remotely accessed Williams’s computer and
his cache of Internet cookies, which contain data on browsing history,
including the date and time Web sites were accessed and the address of the
Web sites. Within the cache, he observed “adult site information,” and he
copied these files and provided them to Jones on April 10, 2018. He
explained to Jones that Williams’s account had accessed these files.

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 After receiving Mosqueda’s April 9 e-mail, Cervantez met with
Mosqueda and told him that he “ ‘[could not] really do anything’ ” with photos
that did not show Williams in the frame. On April 13, 2018, Mosqueda
e-mailed Cervantez and Jones, attaching three additional photos.
Mosqueda’s e-mail stated: “Tony, [¶] Here’s the angle you said would be more
decisive. I was just going to leave this incident alone but decided it’s best to
get this angle to prove without a doubt it’s him and can’t be denied or blamed
on anyone else.” The attached photos showed Williams sitting at his desk
looking at pornography on his computer screen.
After receiving the additional photographs, Syed and Jones went to
Mosqueda’s workstation to confirm that Williams’s computer screen could be
viewed from Mosqueda’s workstation. Later, on April 13, 2018, Cervantez
and Syed consulted with Jones and decided to terminate Williams based on
the evidence that he was viewing pornography on the company’s computer.
Syed and Chris Altomare, who was Williams’s supervisor, met with Williams
and told him he did not pass probation and he was being terminated.
Williams asked why, and Syed did not specifically mention pornography but
said something such as, “[Y]ou know what you did.” Syed also asked
Williams if he was familiar with Simpson’s IT policy. The IT policy, also
referred to as the end user policy, prohibits employees from intentionally
using Simpson’s computers to “display, download, store, receive or send”
pornographic material.
II. Procedural History
A. Williams’s Complaint
Williams sued Simpson for defamation and later filed a second
amended complaint adding a cause of action for retaliation in violation of
FEHA. Williams alleged he had been falsely accused of viewing pornography

5
at work and that the false statement was published to his former coworkers
and supervisors. He also alleged that he was terminated for reporting what
he reasonably believed was harassment.
B. Simpson’s Summary Judgment Motion
Simpson moved for summary judgment or, in the alternative, summary
adjudication on both claims.2 Regarding the retaliation claim, Simpson
argued: (1) Williams could not establish he engaged in a protected activity
because he lacked a good faith subjective and objectively reasonable belief
that he was reporting unlawful conduct when he informed his supervisors
that browser tabs with the words “ ‘Porn’ ” and “ ‘XXX’ ” appeared on his
computer; (2) Simpson had a legitimate, nonretaliatory justification for
terminating Williams based on the multiple credible reports that Williams
was viewing pornography at work; and (3) Williams had no substantial
responsive evidence of pretext or retaliatory animus. In opposition, Williams
argued he found the browser tabs “pretty offensive” and “disturbing.” He
further argued there was evidence of pretext based on Simpson’s failure to
investigate the possibility that Mosqueda was motivated to have Williams
terminated because Williams was hired instead of Mosqueda’s brother.
According to Williams, it was reasonable to infer from the evidence that
Simpson encouraged Mosqueda to frame Williams when Simpson referred to
“a better angle or view” after receiving the initial photos from Mosqueda.
The trial court granted summary adjudication as to Williams’s
retaliation claim, finding that no “hypothetical reasonable jury could find
that [Williams] reasonably and in good faith engaged in protected

2The trial court denied summary adjudication as to the defamation
claim. This claim was tried, and a jury returned a verdict in favor of
Simpson. The defamation claim judgment is not at issue on appeal.

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activity . . . .” The trial court reasoned that Williams’s single report about
pornographic browser tabs “would not put a hypothetical reasonable
employer on notice that Plaintiff was attempting to make a claim of
discrimination or harassment against the company, particularly when, by his
own admission, he did not view any pornography but merely tabs on his
Internet browser for pornographic websites.”
C. Trial Court Order Awarding Simpson Costs
In February 2021 a jury returned a verdict in favor of Simpson on the
defamation claim. On March 2, 2021, the trial court entered judgment in
favor of Simpson and ordered that Simpson should be awarded costs in an
amount to be determined. On August 17, 2021, the trial court issued an
order denying plaintiff’s motion to strike and granting in part plaintiff’s
motion to tax costs, which awarded Simpson $46,227.63 in costs as the
prevailing party.3
DISCUSSION
I. Summary Adjudication Review
Summary adjudication is proper where there is no triable issue as to
any material fact and the moving party is entitled to summary judgment as a
matter of law. (Code Civ. Proc., § 437c, subds. (c), (f).) We review the trial
court’s decision de novo and consider all the evidence set forth in the moving
and opposition papers except that to which objections were made and
sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

3 Although the trial court did not enter the August 17, 2021, order until
after Williams filed his notice of appeal on June 25, 2021, when a judgment
awards costs to a prevailing party and provides for the later determination of
the amount, the notice of appeal subsumes the later order setting the amount
of the award. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)

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II. Burden Shifting in Retaliation Claims Under FEHA
California has adopted the federal burden shifting test for assessing
employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 354.) “[I]n order to establish a prima facie case of retaliation
under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected activity and the
employer’s action. [Citations.] Once an employee establishes a prima facie
case, the employer is required to offer a legitimate, nonretaliatory reason for
the adverse employment action. [Citation.] If the employer produces a
legitimate reason for the adverse employment action, the presumption of
retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the
employee to prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc.,
supra, 36 Cal.4th at p. 1042.)
“In responding to the employer’s showing of a legitimate reason for the
complained-of action, . . . ‘ “ . . . the employee ‘ “must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’ [citation], and
hence infer ‘that the employer did not act for the [ . . . asserted] non-
discriminatory reasons.’ ” ’ ” ’ ” (McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 388–389, italics omitted.) “The
plaintiff must do more than raise the inference that the employer’s asserted
reason is false. ‘[A] reason cannot be proved to be “a pretext for
discrimination” unless it is shown both that the reason was false, and that
discrimination was the real reason.’ [Citation.] If the plaintiff produces no
evidence from which a reasonable fact finder could infer that the employer’s

8
true reason was discriminatory, the employer is entitled to summary
judgment. [Citation.]” (Hicks v. KNTV Television, Inc. (2008) 160
Cal.App.4th 994, 1003, italics omitted.)
“Although an employee’s evidence submitted in opposition to an
employer’s motion for summary judgment is construed liberally, it ‘remains
subject to careful scrutiny.’ [Citation.] The employee’s ‘subjective beliefs in
an employment discrimination case do not create a genuine issue of fact; nor
do uncorroborated and self-serving declarations.’ [Citation.] The employee’s
evidence must relate to the motivation of the decision makers and prove, by
nonspeculative evidence, ‘an actual causal link between prohibited
motivation and termination.’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)
III. Trial court did not err in granting summary adjudication on
Williams’s retaliation claim.
Under FEHA, it is unlawful for an employer “to discharge, expel, or
otherwise discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this part.” (Gov.
Code, § 12940, subd. (h).) The trial court granted summary adjudication for
Simpson because it found that Williams’s reports to his supervisors that
“some unknown person or persons had visited pornographic websites using
his computer” and his request that the IT team should investigate “would not
put a hypothetical reasonable employer on notice that Plaintiff was
attempting to make a claim of discrimination or harassment against the
company, particularly when, by his own admission, he did not view any
pornography but merely tabs on his Internet browser for pornographic
websites.”

9
 Williams argues that his report of pornography in the workplace,
“which could have been viewed by anyone in the Production Office, including
a female co-worker Nora,” constituted a reasonable and good faith report of
sexual harassment. Simpson responds that Williams failed to show he had a
subjective good faith belief that someone at Simpson was engaged in an
unlawful employment practice and that his belief was objectively reasonable.
(Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 383.)
Further, Simpson asserts, there is no evidence that Simpson knew Williams’s
reports regarding the browser tabs were based on his opposition to unlawful
activity. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046 [“an
employee’s unarticulated belief that an employer is engaging in [unlawful
conduct] will not suffice to establish protected conduct for the purposes of
establishing a prima facie case of retaliation, where there is no evidence the
employer knew that the employee’s opposition was based upon a reasonable
belief that the employer was engaging in [unlawful conduct]”].)
We need not decide whether Williams’s report to his supervisors of
Internet browser tabs referring to pornographic Web sites constitutes
protected activity under FEHA. Even assuming, without deciding, that
Williams engaged in protected activity and established a prima facie case of
retaliation, summary adjudication was proper because Simpson
demonstrated a legitimate, nonretaliatory reason for terminating Williams
and Williams failed to produce substantial responsive evidence of pretext or
retaliatory animus. (Hicks v. KNTV Television, Inc., supra, 160 Cal.App.4th
at p. 1003; Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140
[on appeal following summary judgment the trial court’s reasoning is
irrelevant and ruling must be affirmed on any ground supported by the
record].)

10
 Simpson produced evidence that it received multiple reports of
Williams’s viewing pornography at work, including anonymous notes and
multiple photographs of Williams’s computer displaying pornographic
images, including several photographs with Williams in the frame. Simpson
also produced evidence that the IT department investigated the Internet
cache associated with Williams’s computer and determined that Williams’s
account had accessed “adult site information.” Simpson’s evidence was
sufficient to meet its burden to demonstrate a legitimate, nonretaliatory
reason for terminating Williams, and Williams does not contend otherwise.
The burden then shifted to Williams to prove intentional retaliation by
producing “ ‘substantial evidence that the employer’s stated
nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination
of the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.’ ” (Hicks v. KNTV Television, Inc.,
supra, 160 Cal.App.4th at p. 1003.) Williams must do more than raise the
inference that Simpson’s asserted reason is false. “ ‘[A] reason cannot be
proved to be “a pretext for discrimination” unless it is shown both that the
reason was false, and that discrimination was the real reason.’ ” (Hicks, at p.
1003.)
Williams claims there is a factual dispute as to whether he could
establish that Simpson’s purported reason for the termination was a pretext
for retaliation. He asserts Simpson knew that Mosqueda asked about a
family member being hired for the position held by Williams but then
Simpson accepted Mosqueda’s e-mails and photographs “at face value” and
“failed to investigate the possibility that Mosqueda had a motivation to get

11
Williams terminated.” We find this evidence falls far short of meeting
Williams’s burden.
First, Mosqueda’s testimony recounts a single discussion initiated by
Mosqueda’s supervisor, Flores, during which Mosqueda suggested the
possibility of having his brother, who was not yet in the country, apply for the
position. Williams cites to no evidence that any of the Simpson employees
who made the decision to terminate him knew that Mosqueda previously
suggested his brother for the position. The decision to terminate Williams
was made by Syed, Cervantes, and Jones; Flores was not involved.
More importantly, Williams’s argument regarding Mosqueda’s alleged
motive for terminating Williams and the suggested inference that Simpson
encouraged Mosqueda to frame Williams do not establish retaliatory animus
based on Williams’s prior reporting of browser tabs referencing pornography.
(Featherstone v. Southern California Permanente Medical Group, supra, 10
Cal.App.5th at p. 1159 [“The employee’s evidence must relate to the
motivation of the decision makers and prove, by nonspeculative evidence, ‘an
actual causal link between prohibited motivation and termination’ ”].) “[A]n
inference of intentional discrimination cannot be drawn solely from evidence,
if any, that the company lied about its reasons. The pertinent statutes do not
prohibit lying, they prohibit discrimination. . . . [T]here must be evidence
supporting a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s actions.” (Guz
v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360–361, italics omitted.)
Williams produced no evidence that Simpson’s actions were motivated by
retaliatory animus against Williams.
Williams also cites to Cervantez’s testimony that Simpson did not
consider the fact that he reported pornography references in his browser tabs

12
when it decided to terminate him. It is unclear why Williams believes this
testimony supports his claim of retaliation. This evidence demonstrates that
Williams’s report of browser tabs referencing pornography—which Williams
asserts was a protected activity—was not a factor in Simpson’s decision to
terminate Williams. Thus, Simpson could not have retaliated against
Williams for reporting the pornography references.
Williams later inconsistently argues, with a citation to his own
declaration filed in opposition to Simpson’s motion for summary judgment,
that Simpson’s plant manager “did not deny that Williams’s reporting of
pornography was the reason for the termination when directly asked by
Williams in the termination meeting.” Williams’s declaration states that
during his April 13, 2018 meeting with Syed and Altomare, Syed asked him if
he knew what the “end-user agreement” was, and Williams said “that it has
to do with the Internet. I said so you’re telling me this is directly related to
the situation that I reported. Syed did not respond.” Leaving aside
Williams’s contradictory arguments, we find that Syed’s silence does not
“prove, by nonspeculative evidence, ‘an actual causal link between prohibited
motivation and termination.’ ” (Featherstone v. Southern California
Permanente Medical Group, supra, 10 Cal.App.5th at p. 1159.) Williams
failed to produce evidence from which a reasonable trier of fact could
conclude that Simpson was motivated to terminate Williams based on his
report of pornographic references on his browser tabs.
IV. Costs Award
Williams contends the trial court’s award of $46,277.63 in costs to
Simpson was erroneous. He argues that certain of the costs are subject to the
FEHA, which requires a finding that his FEHA claim was frivolous,
unreasonable, or groundless. Williams argues the trial court did not apply

13
the FEHA statute to the costs associated with his FEHA claim and instead
erroneously applied Code of Civil Procedure section 1032, subdivision (b). As
to the remaining costs, including those incurred for the trial of the
defamation claim, Williams argues the trial court failed to consider his ability
to pay.
We find the trial court properly awarded Simpson its costs incurred
after the trial court’s January 14, 2021, ruling granting summary
adjudication in favor of Simpson on Williams’s FEHA claim. However, as to
the costs incurred prior to January 14, 2021, the trial court failed to make the
requisite written findings that Williams’s FEHA claim was frivolous,
unreasonable or groundless.
A. Statutory Authority for Awarding Costs
The general rule for civil cases is: “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).)
“In actions brought under FEHA, Government Code section 12965,
subdivision (b) states, ‘the court, in its discretion, may award to the
prevailing party . . . reasonable attorney’s fees and costs, including expert
witness fees.’ The Supreme Court in Williams [v. Chino Valley Independent
Fire Dist. (2015)] 61 Cal.4th 97 held this provision for a discretionary cost
award is an ‘express exception’ to section 1032, subdivision (b)’s mandate to
award costs to a prevailing party. (Williams, at p. 105.) In authorizing
discretionary awards of attorney fees and costs under Government Code
section 12965, subdivision (b), the Legislature ‘sought “to encourage persons
injured by discrimination to seek judicial relief.” ’ (Williams, at p. 112.)
Because the statute makes awards for costs and attorney fees discretionary,
the Supreme Court determined the Legislature intended the court to exercise

14
its discretion in the same manner for both and the rule established by
Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n
(1978) 434 U.S. 412 [citations] applied to both attorney fees and costs.
(Williams, at pp. 114–115.) Under this standard, the court concluded ‘[a]
prevailing defendant . . . 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.’ (Id. at p. 115.)”
(Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 519–520, 1st & 2d
bracketed insertions added.)4
In Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, the
court addressed how costs may be awarded in an action, such as this one,
where the plaintiff alleges both FEHA and non-FEHA claims. Roman
explained that if the non-FEHA claims led the defendant to incur additional
allowable costs, the defendant would be entitled to recover those costs under
Code of Civil Procedure section 1032, subdivision (b) without first satisfying
the standard of Christiansburg Garment Co. v. Equal Employment
Opportunity Comm’n (1978) 434 U.S. 412. (Roman, at p. 1059.) As to costs
that cannot be apportioned between overlapping FEHA and non-FEHA
claims, Roman found that Government Code section 12965, former

4 Effective January 1, 2022, the Legislature renumbered former
subdivision (b) of Government Code section 12965 as current
subdivision (c)(6). (Stats. 2021, ch. 278, § 7, No. 5A Deering’s Adv. Legis.
Service, p. 970.) Section 12965, subdivision (c)(6) states: “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, except that, notwithstanding Section 998
of the Code of Civil Procedure, a prevailing defendant shall not be awarded
fees and costs unless the court finds the action was frivolous, unreasonable,
or groundless when brought, or the plaintiff continued to litigate after it
clearly became so.”

15
subdivision (b) controls. (Roman, at p. 1062.) “Unless the FEHA claim was
frivolous, only those costs properly allocated to non-FEHA claims may be
recovered by the prevailing defendant.” (Ibid.)
This case involves two broad categories of costs: (1) those incurred
before the January 14, 2021 ruling granting Simpson summary adjudication
on Williams’s retaliation claim; and (2) those incurred after the January 14,
2021 ruling when the only remaining claim was defamation. We begin with
the second category first.
B. Trial court did not err in awarding Simpson costs incurred
after January 14, 2021 summary adjudication order.
The total costs incurred in the second category is $31,671.49, comprised
of $5,923.13 for demonstrative trial exhibits; $18,421.50 for court reporting
services at trial; $2,624.50 for the deposition of Williams’s retained expert
Neil Broom taken on January 18, 2021; $1,579.55 for the deposition of
Williams’s retained expert George Reis taken on January 18, 2021; $2,237.52
for the deposition of Williams’s nonretained expert Tam-Me Jackson taken on
January 20, 2021; and $885.29 for defending the deposition of Simpson’s
retained expert James Vaughn on January 19, 2021.
Williams takes issue with Simpson’s argument that the costs of the
depositions taken after the summary adjudication of the FEHA claim are
allocable to the defamation claim. He argues that these depositions included
testimony regarding issues relevant to Williams’s FEHA claim and, therefore,
“those depositions did not increase Simpson’s cost by virtue of the defamation
claim, i.e., if Williams had only pleaded a FEHA claim those depositions still
would have been taken.” We reject Williams’s argument. If he had pleaded
only a retaliation claim, then summary judgment, rather than summary
adjudication, would have been granted on January 14, 2021, and no further
depositions would have been taken. Because the defamation claim was the

16
only claim remaining after the January 14, 2021, ruling, it follows that the
costs of depositions taken after that date were costs for “deposition[s] not
otherwise required to contest the FEHA claim . . . .” (Roman v. BRE
Properties, Inc., supra, 237 Cal.App.4th at p. 1059.)
These costs are recoverable as a matter of right under Code of Civil
Procedure section 1032, and the award of these costs was not error. (Roman
v. BRE Properties, Inc., supra, 237 Cal.App.4th at p. 1062 [costs related to
non-FEHA claim are recoverable by prevailing party under Code Civ. Proc.,
§ 1032].)
Williams also argues that the trial court failed to exercise its discretion
to consider Williams’s financial condition when it awarded these costs. We
disagree. Williams presented this issue to the trial court for the first time in
his reply brief filed in support of his motion to strike or tax costs. Williams’s
belated argument regarding his ability to pay was supported by his April 23,
2021 declaration, which stated: “I was unemployed for a period of about a
year after my termination by Simpson. Since March 2019, I have only earned
about $1,700 per month on average from self-employment.” Williams asks us
to assume the trial court failed to exercise its discretion to consider
Williams’s financial condition because the trial court’s order is silent on this
point. This we will not do. It is well established that “ ‘[a] judgment or order
of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’
[Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here,
Williams raised his ability to pay, albeit belatedly, in his reply brief. The
trial court’s order states it considered the parties’ papers submitted in

17
support of and in opposition to Williams’s motion to strike and/or tax costs
and the oral argument of counsel at the May 24, 2021 hearing. Williams
opted not to include the hearing transcript in the appellate record. On this
record, there is no basis from which to conclude that the trial court failed to
consider Williams’s financial condition.5 (Robert v. Stanford University
(2014) 224 Cal.App.4th 67, 72.)
Williams further argues that whether the trial court erred by not
reducing the costs award based on Williams’s ability to pay is a legal issue
based on undisputed facts. Williams cites Roman v. BRE Properties, Inc.,
supra, 237 Cal.App.4th 1040, and Rosenman v. Christensen, Miller, Fink,
Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859 (Rosenman) in
support of his argument that the trial court was required to consider
Williams’s ability to pay. However, neither case discusses whether
consideration of ability to pay is required as to costs allocable only to non-
FEHA claims. (Roman, at p. 1062 [“trial court has discretion to deny or
reduce a cost award to a prevailing FEHA defendant when a large award
would impose undue hardship on the plaintiff”]; Rosenman, at pp. 864–869
[discussing award of attorney fees to successful defendant in FEHA claim].)
As discussed ante, we find the $31,671.49 in costs incurred by Simpson after
January 14, 2021, are solely allocable to the defamation claim and are
recoverable as a matter of right. (See LAOSD Asbestos Cases (2018) 25
Cal.App.5th 1116, 1124–1125 [rejecting argument that court has authority to

5 We note that the minimal financial information provided in
Williams’s declaration is significantly less than what Villanueva v. City of
Colton (2008) 160 Cal.App.4th 1188 suggests could support an inability to
pay a fee award under the FEHA. (Id. at p. 1204 [suggesting a declaration
setting forth gross income, net income, monthly expenses, and assets].)

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analyze ability to pay when awarding costs under Code Civ. Proc., §§ 1032,
1033.5].)
Williams fails to persuade us that the trial court erred either factually
or legally by awarding Simpson $31,671.49 in costs incurred after
January 14, 2021.
C. Williams forfeited challenge to Simpson’s filing fees,
service of process fees, and witness fees.
In his motion to strike and/or tax costs, Williams did not challenge the
following costs sought by Simpson: $935 for filing and motion fees, $912.50
for service of process, and $210 for witness fees. Simpson noted Williams’s
concession as to these costs totaling $2,057.50 in its opposition to Williams’s
motion to strike and/or tax costs, and Williams did not contest the issue in his
reply brief. Accordingly, Williams has forfeited any claim that the trial court
erred in awarding Simpson $2,057.50 for costs Williams never contested.
(Boyd v. Oscar Fischer Co. (1989) 210 Cal.App.3d 368, 383 [any objections not
stated in motion to tax costs are waived].)
D. Balance of Costs Incurred Prior to Dismissal of FEHA
Claim
The remaining costs that were awarded to Simpson total $12,498.64
and are attributable to 11 depositions taken before Williams’s retaliation
claim was dismissed and the costs for a court reporter for the parties’
summary adjudication hearings. Simpson acknowledged below that certain
of these depositions were necessary for the FEHA claim and argued that
others related only to the defamation claim. Simpson also argued that
because Williams’s retaliation claim was frivolous, Simpson was entitled to
recover all of its costs under the FEHA. The trial court’s order is silent as to
whether it found any of Simpson’s claimed costs allocable to the FEHA claim

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and if so, whether such costs could be awarded because the FEHA claim was
frivolous.
Ordinarily, we would presume that the trial court’s ruling is correct
and that the court made the necessary findings in support if its ruling.
(Denham v. Superior Court, supra, 2 Cal.3d at p. 654.) However, a prevailing
defendant in a FEHA claim is entitled to fees only in cases where the
plaintiff’s claim was frivolous, unreasonable, or without foundation.
(Rosenman, supra, 91 Cal.App.4th at pp. 864–866; see Williams v. Chino
Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [applying same
reasoning to an award of costs under Gov. Code, § 12965, former subd. (b)].)
Rosenman imposed “a nonwaivable requirement that trial courts make
written findings” reflecting the criteria supporting an award “in every case
where they award attorney fees in favor of defendants in FEHA actions.”
(Rosenman, at p. 868.) Because the required written findings were not made
by the trial court, we must reverse and remand, unless we determine that no
such findings reasonably could be made from this record. (Ibid.)
On this record, we cannot say that the required finding would be
unreasonable in this case. The trial court could reasonably determine that
Williams’s retaliation claim was objectively without foundation and therefore
Simpson is entitled to its costs. (Roman v. BRE Properties, Inc., supra, 237
Cal.App.4th at p. 552.) This is a question for the trial court to determine in
the first instance. (Id. at p. 553.) Accordingly, we remand for the trial court
to determine whether Simpson may be awarded the $12,498.64 in costs it
incurred prior to the dismissal of Williams’s retaliation claim because the
retaliation claim was frivolous, unreasonable or without foundation.
(Rosenman, supra, 91 Cal.App.4th at p. 859.) On remand, the trial court
shall also determine whether any portion of the $12,498.64 is attributable

20
solely to Williams’s defamation claim, and if so, that portion shall be
recoverable by Simpson. Any portion of the $12,498.64 attributable to
Williams’s retaliation claim, or that cannot be apportioned between the
defamation claim and the retaliation claim, may only be awarded to Simpson
if the trial court determines that Williams’s retaliation claim was frivolous.
(Id. p. 1062.)
DISPOSITION
The order awarding Simpson costs of $46,227.63 is vacated, and the
case is remanded for further proceedings consistent with this opinion. On
remand, the trial court shall award the $33,728.99 in costs (comprising
$31,671.49 incurred after the dismissal of Williams’s retaliation claim plus
$2,057.50 which Williams did not contest in the trial court). As to the
$12,498.64 in costs Simpson incurred prior to the January 14, 2021, summary
adjudication ruling, the trial court shall determine whether these costs are
allocable to Williams’s retaliation claim, and if so, they may only be awarded
if the trial court makes the express written findings as required under
Government Code section 12965, subdivision (c)(6). In all other respects, the
judgment is affirmed. The parties are to bear their own costs on appeal.

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 _________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Burns, J.

A162992/Williams v. Simpson Strong-Tie Co. Inc.

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