Lower Court Properly Scaled Back Expert Fee Costs Award Against Plaintiff Based on Her Financial Situation.
Hernandez v. The Regents of the University of California, Case Nos. A129427/A130063 (1st Dist., Div. 4 Dec. 12, 2011) (unpublished) involved some interesting fees and costs issues, especially given the shifting impact of Code of Civil Procedure section 998 when woven into the FEHA pro-plaintiff fee shifting provision.
In this one, a Native American assistant professor at University of California, Berkeley brought a FEHA claim against the Regents. She rejected a 998 offer of $300,000 plus reasonable attorney’s fees, costs, and expenses. After a jury trial, plaintiff was awarded a total of $266,347, which was less than the defense 998 offer.
She moved to recover $2,662,645 in fees and $46,312.82 in costs under the FEHA fee-shifting provision. In turn, based on the winning 998 offer, the defense sought a total of $144,560.74 in costs (mainly expert witness fees). After a comprehensive fee/costs hearing, the lower court awarded plaintiff $415,938.75 in fees (with a 1.5 multiplier). awarded plaintiff $26,932.84 in pre-998 offer costs, and awarded the defense $33,414.25 in post-998 offer costs as well as $50,000 in expert witness fees (scaled down from its request for more than $111,000 due to plaintiff’s financial situation).
Plaintiff appealed the fees and costs awards across the board, all to no avail.
The hourly rates awarded and multiplier were not incorrect under an abuse of discretion standard. Because plaintiff failed to obtain a more favorable award than the defense 998 offer, the defense was treated as the prevailing party for purposes of postoffer attorney’s fees as costs. The preoffer award of costs was justified. So, too, was the postoffer award of expert witness fees to the defense, because the record did reveal that the trial court “scaled back” the requested $111,000 award to $50,000 based on plaintiff’s financial situation. (Seever v. Copley Press, Inc., 141 Cal.App.4th 1550, 1561-1562 (2006); Holman v. Altana Pharma US, Inc., 186 Cal.App.4th 262, 284 (2010).)
The University Library. Berkeley. c1911.