On March 28, 2012, the California Court of Appeal in Baker v. Mulholland Security and Patrol, Inc. [2012 DJDAR 4093] held that an employee who lost his discrimination, harassment and retaliation suit by summary judgment entered against him was not required thereupon to pay the employer’s expert witness fees.
The defendant made the argument before the trial court following judgment that Government Code Section 12900 et seq. of the “Fair Employment and Housing Act” [FEHA] permits an employer to recover expert witness fees as “costs of litigation” even if the employee was “reasonable” and was not “frivolous or vexatious” in bringing the anti-discrimination, anti-harassment, and anti-retaliation suit.
The Baker court noted that the California Courts of Appeal are split on the question of whether the “ordinary costs of appeal” [i.e., non-expert costs] are recoverable by a prevailing employer in a FEHA case when the case is reasonable in the inception, and “not vexatious or frivolous.” [citing the conflicting decisions of Perez v. Co. of Santa Clara and Knight v. Hayward Unified School Dist., with Cummings v. Benco Building.]
The Baker Court elected to follow federal cases that placed “expert witness” fees in the same category as “attorneys fees” in Title VII cases where the employer prevailed. The Court reasoned that “expert witness fees” are not “ordinary litigation costs” but are the subject of special cost shifting statutes.
The recovery of attorneys fees and expert witness fees are not matters of right, but reside with the discretion of the court as to amount. Govt. C. Section 12965(b). “Ordinary costs of litigation” are however recoverable as a matter of right to a prevailing party. The Baker Court of Appeal held that the Trial Court was incorrect in awarding expert witness fees without making a finding that the employee brought the suit unreasonably, frivolously, or for a vexatious purpose.
The defendant made the argument before the trial court following judgment that Government Code Section 12900 et seq. of the “Fair Employment and Housing Act” [FEHA] permits an employer to recover expert witness fees as “costs of litigation” even if the employee was “reasonable” and was not “frivolous or vexatious” in bringing the anti-discrimination, anti-harassment, and anti-retaliation suit.
The Baker court noted that the California Courts of Appeal are split on the question of whether the “ordinary costs of appeal” [i.e., non-expert costs] are recoverable by a prevailing employer in a FEHA case when the case is reasonable in the inception, and “not vexatious or frivolous.” [citing the conflicting decisions of Perez v. Co. of Santa Clara and Knight v. Hayward Unified School Dist., with Cummings v. Benco Building.]
The Baker Court elected to follow federal cases that placed “expert witness” fees in the same category as “attorneys fees” in Title VII cases where the employer prevailed. The Court reasoned that “expert witness fees” are not “ordinary litigation costs” but are the subject of special cost shifting statutes.
The recovery of attorneys fees and expert witness fees are not matters of right, but reside with the discretion of the court as to amount. Govt. C. Section 12965(b). “Ordinary costs of litigation” are however recoverable as a matter of right to a prevailing party. The Baker Court of Appeal held that the Trial Court was incorrect in awarding expert witness fees without making a finding that the employee brought the suit unreasonably, frivolously, or for a vexatious purpose.
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