Interaction of Code of Civil Procedure Section 998 Also Explored.
This next case is a very scholarly review of the standards governing an award of expert witnesses fees as costs to a winning defendant in a FEHA action. It is Holman v. Altana Pharma US, Inc., Case Nos. A122783/A124451 (1st Dist., Div. 5 June 30, 2010) (certified for partial publication, with costs discussion published), a 3-0 panel decision authored by Justice Bruiniers.
After defendant won a FEHA-based action against plaintiff, the trial court awarded defendant total costs of $190,963.11, including a claim for $128,925.12 in expert witness fees pursuant to Code of Civil Procedure section 998 (after plaintiff refused a $20,001 section 998 offer, later suffering defeat through summary judgment and nonsuit grants). On appeal, one of the primary contentions focused on the propriety of the expert witness fee award. Because statutory construction was involved, the de novo review standard was triggered.
The Court of Appeal initially assumed that the Legislature implicitly intended under Government Code section 12965(b) to apply the Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) standard, requiring a prevailing defendant to prove the plaintiff’s action to be frivolous in nature, to expert witness fees—although noting this is the case for attorney’s fees but there is a split on the issue with respect to “ordinary” litigation costs. However, the analysis did not end because the section 998 interplay issue had to be considered.
Based on Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4th 985 (1998) [involving the interplay between the Lemon Law and section 998], Justice Bruiniers concluded that nothing in section 12965(b) disallows an award of expert witness fees to a prevailing party under section 998—even if the Christiansburg standard is not met. Section 998 was the “trump” card in Holman.
Nonetheless, the expert witness fee ruling was vacated and remanded for possible “scaling” downward the amount of the award based on plaintiff’s indigent financial situation. (Seever v. Copley Press, Inc., 141 Cal.App.4th 1550, 1562 (2006).) Here, the $128,925.12 expert fee award was substantial and plaintiff did indicate she was indigent, living only on Social Security Disability benefits. The appellate panel did end with a footnote indicating that a lower court should seldom deny a successful defendant its entire 998 award even in a FEHA case, citing Seever, supra, 141 Cal.App.4th at 1562. (Slip Opn., p. 44 n. 32.) This “pocketbook” consideration is often a focal one in FEHA cases when it comes to awarding fees and costs against a losing plaintiff.