Employment Law Alert: Prevailing Employer in FEHA Cases Must Still Show Frivolity to Obtain Expert Fees

In Baker v. Mulholland Security and Patrol Inc. (B232172, 2012 WL 1021445 (Cal. Ct. App. Mar. 28, 2012)), the Second Appellate District held that expert witness fees may not be awarded under Government Code § 12900 et seq. to prevailing defendants in a Fair Employment and Housing Act (“FEHA”) action unless the plaintiff’s claim is found to be frivolous.

Plaintiff Eric Baker filed suit against defendant for retaliation, failure to pay overtime compensation, and failure to maintain records, claiming he was terminated after just 13 days of employment when he complained about discriminatory remarks made at his workplace. The trial court dismissed plaintiff’s retaliation claims after defendant filed a motion for summary adjudication. The remainder of plaintiff’s claims were dismissed after the parties reached a settlement. Defendant subsequently moved to recover its expert witness fees pursuant to Government Code § 12900 et seq. as the prevailing party. The trial court granted defendant’s motion and awarded $2,350 as costs incurred for expert witness fees. The trial court did not require defendant to make any showing that plaintiff’s claim was frivolous.

The Court of Appeal reversed the attorney fee award, holding that Government Code § 12900 et seq. required a prevailing defendant to make a showing that plaintiff’s claim was frivolous. The court found that because plaintiff made a sufficient prima facie showing of retaliation, the fee award was an abuse of discretion. In reaching its holding, the court emphasized that federal courts demand a showing be made by prevailing defendants under Title VII that the plaintiff’s claim was “frivolous, unreasonable or groundless.”

The Court of Appeal also refused to treat expert witness fees as “ordinary litigation costs” because expert witness fees “can be expensive and unpredictable, and could chill plaintiffs from bringing meritorious actions.” To avoid the potential chilling effect, the court held that expert witness fees are not recoverable until the defendant demonstrates that the plaintiff’s claim was frivolous.

As most employers know, defending against FEHA claims is expensive and any type of “win” can still be costly. Although money spent in defense is rarely, if ever, recoverable, when an employer can show a plaintiff’s claim is in fact frivolous, hope still remains.

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March 30, 2012