Second District, Division Eight So Rules in Case Involving Non-Court Ordered Expert Witness Fees.
Government Code section 12965(b) specifies that, in retaliation claims under California’s Fair Employment and Housing Act (FEHA), “the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees ….” So, the issue arises—are these expert fees more akin to routine costs (subject to 15 day cost memo deadlines) or discretionary nonroutine costs (subject to the longer appeal deadlines)? Not even close, the Second District, Division Eight rules—they are not governed by the more rigid routine costs deadlines.
In Anthony v. City of Los Angeles, Case No. B202457 (2d Dist., Div. 8 Sept. 11, 2008) (certified for publication), Plaintiff prevailed in a lawsuit against her Employer (City of Los Angeles) under FEHA. Plaintiff did not claim expert witness fees in her costs memorandum that was timely filed within 15 days of entry of judgment. Instead, 25 days later, Plaintiff filed a noticed motion for recovery of expert witness fees, much like a litigant would do for recoupment of attorney’s fees. Even though City Employer opposed the motion, the trial court awarded Plaintiff $23,770.91 in expert fees, an order challenged by City on appeal.
City lost its appellate challenges.
Presiding Justice Cooper—writing on behalf of a 3-0 panel of 2/8—affirmed.
Based on its view that FEHA expert witness costs are not “routine,” the appellate panel determined that they do not have to be claimed as costs within the shorter deadlines dictated by California Rules of Court, rule 3.1700(a)(1). Rather, expert witness fees not ordered by the court—just like attorney’s fees—are costs items that cannot be entered by the clerk and await a subsequent award in the discretion of the court upon a more protracted noticed motion. “We agree with the trial court that, in the absence of a specific rule applicable to the discretionary award of expert witness fees, a motion for the expert witness fees permitted under FEHA is timely if filed within the same time constraints as those applicable to a noticed motion for attorney fees.” (Slip Opn., at p. 5.)
City made a bizarre argument that expert fees were not awardable to the prevailing plaintiff. This contention went nowhere. Amendments to Government Code section 12965(b) plainly authorized the award of expert witness fees made by the lower court in this case. (See Olson v. Automobile Club of So. Cal., 42 Cal.4th 1142, 1149 n. 4 (2008).)
BLOG OBSERVATION—The reasoning in Anthony can be used to argue that attorney’s fees are “nonroutine costs” that must be bonded on appeal. (See our discussion of the topic in our July 11, 2008 post regarding bonding of attorney’s fees awards obtained by defendants.)