However, Plaintiff Entitled to Have Court Consider Expert Witness Fees On Remand, Because Fee Motion Preserved Issue.
Amour v. Alexander, Case No. B235897 (2d Dist., Div. 8 Nov. 29, 2012) (unpublished) [BLOG NOTE–no, co-contributor Marc Alexander was not involved here at all] is a case that highlights the importance of Chavez v. City of Los Angeles, 47 Cal.4th 970, 985 [one of our Leading Cases], where trial judges have considerable discretion to reduce fees or deny fees altogether in FEHA cases–especially if they decide the fees are inflated in nature.
In Amour, FEHA plaintiff won a compensatory award of $15,000, but then sought recovery of $274,230 in fees and certain costs (including $4,974 in expert witness fees). The trial court awarded only $45,000 in attorney’s fees to prevailing plaintiff after finding that the fee request was inflated. Expert witness costs were also rejected.
On appeal, the fee award was affirmed but a remand ordered on the expert witness fee ruling.
Chavez was front and center as the basis for the sustaining of the fee award. The trial court properly referenced the simplicity of the case, the limited potential damages, rejection of a reasonable pre-trial offer, and other factors indicating the case did not require significant legal experience or expenditures of time to reach a successful result, notwithstanding the liberal policy to grant fees in FEHA cases.
A different matter on the denial of expert witness fee costs. The trial court denied the costs because they were not contained in the costs memorandum, but only requested in the attorney’s fees motion. This was error under Anthony v. City of Los Angeles, 166 Cal.App.4th 1011, 1016 (2008), which decided that FEHA expert witness costs need not be included in a costs memorandum but were properly claimed through the separately noticed attorney’s fees motion.
Defendant argued that the entire fee award should be reversed in entirety, but his failure to bring a cross-appeal was fatal to consideration of the argument.