The plaintiff, Baker, sued his former employer, Mulholland, alleging that it terminated him in retaliation for complaining of discriminatory remarks made at work. The trial court (Los Angeles Superior, Judge Conrad R. Aragon), granted Mulholland's motion for summary adjudication on the retaliation claims and awarded Mulholland its expert witness fees. The parties settled the remaining claims, and Baker appealed from the judgment for Mulholland on the retaliation claims and expert witness fees.
The Court of Appeal affirmed the grant of summary adjudication and, in the published portion of the decision, reversed the expert witness fee award, holding as follows:
1. In the ordinary action, the prevailing party may recover its costs, but not fees of expert witnesses not ordered by the court. 204 Cal.App.4th at 782.
2. In a FEHA action, a prevailing employer "may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith." Id. at 782-783.
3. The Courts of Appeal are split about whether this standard applies to an award of ordinary litigation costs to a prevailing FEHA defendant. (Compare Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681 ["ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable"] and Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 134-135 [same] with Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 [prevailing FEHA defendant can recover litigation costs only when action is frivolous, groundless, or unreasonable]. Id. at 783.
4. As a matter of first impression, expert witness fees are more similar to attorney fees than they are to ordinary litigation costs, and a prevailing FEHA defendant may recover them only when the action is is frivolous, groundless, or unreasonable. Id. at 783-784.
The opinion is available here.