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Baker v. Mulholland Security & Patrol, Inc.

A defendant in a Fair Employment and Housing Act (FEHA) case, may on recover expert witness fees when a plaintiff employer’s conduct is considered to be frivolous, unreasonable, without any foundation, and asserted in bad faith.

A security company employed plaintiff employee as a security guard and after receiving a number of complaints from a client regarding the employee's’ lack of professionalism and phone use while on the job. Additionally, plaintiff employee had filed a number of complaints to his supervisor regarding various racist and discriminatory comments by an employee of the client, wherein the plaintiff employee was subsequently terminated. Plaintiff filed claims for retaliation under the California’s Fair Employment and Housing Act (FEHA), along with failure to pay overtime compensation and the failure to maintain records. Defendant employer moved for summary judgement, arguing in pertinent part that the actual basis for plaintiff employee's termination was client complaints, poor job performance, and that such decision regarding termination occurred well in advance of any complaints of discrimination by plaintiff. The superior court granted defendant’s motion for summary judgement, concluding that defendant employer had a legitimate, nonretalitory reason for such termination, wherein after entry of judgement, defendant moved to recover its expert witness fees, to which the trial court granted.

Court of Appeals

The California Court of Appeals reversed the award of expert witness fees, holding that such fees cannot be awarded to a prevailing FEHA defendant without a showing that the plaintiff’s claims was frivolous, unreasonable, without foundation, or brought in bad faith. The court reasoned that witness fees, unlike attorney’s fees, are not ordinary litigation costs that are recoverable as a matter of right like other routine litigation expenses, where federal courts have concluded that attorney’s fees and expert fees may not be awarded to prevailing defendants in Title VII cases unless the plaintiff’s claim is frivolous. Here, the Court determined that plaintiff had in fact asserted a prima facie case of retaliation even if the FEHA was eventually denied by the court, and as such, where the court did not find that plaintiff’s actions were frivolous, its award of expert fees was determined to be erroneous and not warranted.

Employment based claims involving a large employer requires a law firm that is experienced, competent, and knowledgeable concerning the complexities of employment injury claims and the recovery of attorney fees. If you have any employment-related injury claims and are considering contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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