In Baker v. Mulholland Security and Patrol Inc., 2012 DJDAR 4093 (2012), the California Court of Appeal for the Second Appellate District overturned an award of expert witness fees granted to the prevailing defendant in employment related litigation. The appellate court overturned the award of expert witness fees to the defendant, concluding that the trial court applied an erroneous legal standard in granting the award.

The plaintiff began working for a security company. Almost immediately, the company received complaints about the plaintiff’s work‑related capabilities. After being notified of the work‑related criticisms, the plaintiff complained that the security firm’s client made racist and discriminatory remarks to him. Nonetheless, the plaintiff was soon terminated from employment.

The plaintiff sued the security company under the provisions of California’s Fair Employment and Housing Act (“FEHA”).  In defense, the security company filed a motion for summary adjudication, claiming that it decided to terminate the plaintiff due to his poor job performance, well prior to learning of the alleged discriminatory remarks. The trial court concluded that the employer had a valid basis for the decision to fire the plaintiff, and the motion for summary adjudication was granted. The employer then moved to recover expert witness fees.

The trial court ruled that the employer was entitled to costs, including expert fees. The court of appeal reversed the ruling concluding that trial court used an improper legal standard.

The court of appeal noted that a prevailing party under FEHA is entitled to attorney fees where an action is frivolous, unreasonable or without foundation. The court stated that the question presented by this appeal was whether a claim for expert witness fees recovery had to be judged by the same standard used for attorneys’ fees. The court noted that FEHA allows recovery of expert witness fees, “within the court’s discretion.” The court of appeal noted, however, that a defendant who wins may recover attorney fees when the plaintiff’s action was frivolous, unreasonable or without foundation. The trial court concluded it was not necessary to find that the lawsuit was actually “frivolous” in granting witness the fee award.

The court of appeal noted that the same standard for recovery of attorneys’ fees should be utilized with regard to expert fees. Because the trial court awarded fees without making the required finding the award was overturned.