Friday, September 12, 2008
Court of Appeal Rules Expert Witness Fees Recoverable Under FEHA
By KENNETH OFGANG, Staff Writer
Fees of a plaintiff’s retained experts are recoverable if the plaintiff prevails in litigation under the Fair Employment and Housing Act, the Court of Appeal for this district ruled yesterday.
Div. Eight, affirming a judgment against the City of Los Angeles in an employee’s retaliation lawsuit, said Los Angeles Superior Court Judge Ralph Dau acted within his discretion in awarding nearly $24,000 in expert witness fees.
Counsel for the plaintiff, Joanne Anthony, moved for the expert fees 25 days after judgment was entered last year. The city responded that the motion was untimely, based on a court rule requiring that all items claimed as costs by the prevailing party be set forth in a memorandum filed within 15 days, and that expert fees are only recoverable when the expert is court-ordered.
Presiding Justice Candace Cooper said the city was wrong on both counts.
Rule 3.1700 of the California Rules of Court, the presiding justice explained, requires a cost memorandum only as a prerequisite to recovery of costs listed in Code of Civil Procedure Sec. 1033.5.
“In our view, this construction is the most sensible interpretation of rule 3.1700, which also requires the clerk of the court to “immediately enter the costs on the judgment” if the opposing party does not move to strike or tax costs,” Cooper wrote.
Fees of non-court-ordered experts, the presiding justice pointed out, are recoverable only as a matter of judicial discretion, and “there would be no point in requiring a party to include in its memorandum of costs those cost items which are awarded in the discretion of the court and thus cannot be entered by the clerk of the court under rule 3.1700.”
Cooper went on to say that the expert witness fee provision of FEHA, Government Code Sec. 12965(b), contains no language limiting its provisions to court-ordered experts, and thus differs from the more general provision of Code of Civil Procedure 1033.5.
The city’s argument that the two provisions must be harmonized by reading the more general language into FEHA’s specific provision is contrary to both case law and common sense, Cooper wrote.
“Expert witness fees ordered by the court have long been allowable as costs under section 1033.5, subdivision (a)(8),“ she said. “Consequently, the FEHA amendment expressly authorizing the recovery of expert witness fees would be entirely pointless if it were construed to apply only to expert fees ordered by the court. The FEHA plainly authorizes the award of expert witness fees made by the trial court in this case.”
Attorneys on appeal were Deputy City Attorney Paul L. Winnemore for Los Angeles and David G. Geffen for the plaintiff.
The case is Anthony v. City of Los Angeles, B202457.
Copyright 2008, Metropolitan News Company