Civil Rights/Expert Witness Costs: Losing FEHA Plaintiff Only Exposed To Expert Witness Fee Costs If Lawsuit Was Unreasonable, Frivolous Or Vexatious

 

Second District Panel Reverses $2,350 Cost Award to SJM Winning Defendant.

     In Baker v. Mulholland Security and Patrol, Inc., Case Nos. B232172/B234487 (2d Dist. Div. 8 Mar. 28, 2012) (certified for partial publication), the appellate court reversed a $2,350 expert witness fee cost award against a losing FEHA plaintiff, after defendant won summary judgment, because the lower court made the award despite failing to find the lawsuit was unreasonable, frivolous or vexatious in nature. Although noting a split among appellate courts as to whether the frivolousness standard of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) applies to an award of ordinary litigation costs to a prevailing defendant, the Court of Appeal nevertheless determined that “[e]xpert fees, just like attorney’s fees, are not ordinary litigation costs which are routinely shifted under Code of Civil Procedure sections 1032 and 1033.5. Like attorney’s fees, expert fees should be treated differently than ordinary litigation costs because they can be expensive and unpredictable, and could chill plaintiffs from bringing meritorious actions.” (Slip Opn., p. 13, extending Christiansburg standard to award of expert witness fees in favor of a prevailing FEHA defendant.)