Should Losing Plaintiff Pay Defendant’s Expert Witness Fees?

In a case brought under FEHA, should a losing plaintiff in a FEHA case be on the hook for prevailing defendant’s expert witness fees?

Not unless plaintiff’s case was frivolous, unreasonable, without foundation, or brought in bad faith, according to the Second District Court of Appeals in Baker v. Mulholland Security and Patrol, Inc.

This case was brought by a security guard that was employed only 13 days. (That’s right – only 13 days!)

Plaintiff sued for retaliation under FEHA. Defendant moved for summary judgment which the court granted.

Not satisfied at winning on summary judgment, defendant then asked the court for an order compelling plaintiff to pay defendant’s expert witness fees. The court then ordered plaintiff to pay defendant $2,350 for expert witness fees under Government Code § 12965(b).

Plaintiff appealed and it’s a good thing he did!

The court held that expert witness fees in FEHA litigation are similar to attorney’s fees in that they are not ordinary litigation costs and should be treated differently than ordinary litigation costs since they can be expensive and unpredictable, and could chill plaintiffs from bringing meritorious actions.

The court applied the “Christianburg standard”as the United States Supreme Court stated:

To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.

 Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).

The court here concluded that plaintiff’s action was not frivolous because he made a prima facie case of retaliation.

That means defendant gets no relief from those oppressive expert witness fees!

Baker v. Mulholland Sec. and Patrol, Inc., 204 Cal.App.4th 776 (2012).

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