Failure to File Separate Motion for Recovery of Expert Witness Fees Not Damning.
In Baez v. Burbank Unified School Dist., Case No. B254852 (2d Dist., Div. 7 Jan. 25, 2016) (unpublished), plaintiff finally won on FEHA claims after a third trial following a couple of earlier appellate hiccups. Plaintiff won $179,398 in compensatory damages plus $2 million in punitive damages, while the District won $19,500 in compensatory damages and $1 million in punitive damages on a cross-complaint against plaintiff. Plaintiff then obtained $3,224,569.30 in fees, plus expert witness fees, as the prevailing party under FEHA.
The defense appeal was unsuccessful.
District’s challenge to time spent on the first trial was found to be compensable fees, especially given that it led to a successful conclusion and that the reversal of the first trial was due to the defense’s failure to give notice of using prior sexual conduct at the trial. The interesting issue was whether the award of expert witness fees to prevailing plaintiff was infirm because they were sought via a filed costs memorandum rather than a separate motion for recovery of these fees. The appellate court determined that the costs memorandum was a proper vehicle, by analogy to the reasoning in a CCP § 998 case—no separate motion was a legal requirement. (Jonkey v. Carignan Constr. Co., 139 Ca.App.4th 20, 27 (2006).)