Opinion
NOT TO BE PUBLISHED
APPEAL from the orders of the Superior Court of Los Angeles County No. BC311668, Elihu M. Berle, Judge.
Raymond G. Fortner, Jr., County Counsel, Richard P. Chastang, Principal Deputy County Counsel, Gregory S. Levine, Associate County Counsel for Defendant and Appellant.
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Los Angeles County Metropolitan Transportation Authority (MTA) appeals from the orders of the trial court denying MTA costs and attorney fees against plaintiff and respondent Warren Fu. MTA argues the trial court abused its discretion in denying expert witness fees as costs pursuant to Code of Civil Procedure section 998 after Fu failed to obtain a more favorable result than MTA’s $15,000 offer. MTA also contends the trial court abused its discretion in denying attorney fees because Fu’s action for wrongful termination and failure to rehire was frivolous. We hold there was no abuse of discretion and affirm the orders.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
PROCEDURAL HISTORY
Fu obtained a judgment of $1.678 million in the underlying action based upon a single cause of action alleging wrongful termination and age discrimination under California’s Fair Employment and Housing Act (FEHA). We reversed the judgment in a prior appeal, holding that the wrongful termination action was barred by a release signed by Fu, and that the age discrimination claim was not supported by substantial evidence because MTA established a nondiscriminatory basis for Fu’s termination that was not rebutted. After issuance of our remittitur, MTA sought costs and attorney fees.
MTA’s motion for judicial notice of our prior nonpublished opinion in Fu v. Los Angeles County Metropolitan Transportation Authority, No. B184012, is granted. Fu’s motion to augment the record is denied.
Costs
MTA filed a Memorandum of Costs requesting an award of $82,966.70. In this appeal, MTA challenges the trial court’s denial of $61,265 in witness fees as costs for four expert witness. MTA argues the trial court abused its discretion by denying costs on the basis that only one expert was designated at trial, none of the experts testified at trial, and insufficient documentation was provided to support an award of expert witness fees.
1. Proceedings on the Request for Costs
MTA sought an award of costs in the form of expert witness fees on the basis that MTA made a section 998 offer of $15,000, which was rejected by Fu, and Fu failed to obtain a judgment more favorable than the settlement offer once this court reversed the judgment.
Fu moved to tax costs, arguing the expert witness fees were excessive and not allowed by law. Fu argued that MTA was seeking expert witness fees for four witnesses although there had only been one designated expert at trial, and that none of MTA’s four expert witnesses testified at trial. Fu argued that expert witness fees under section 998 were discretionary and should be denied because Fu obtained a jury verdict in the amount of $1.678 million. Fu noted that no records, reports, documents, or treatises of the expert witnesses were admitted at trial, and that the expert witness fees were unreasonable, excessive, and not reasonably incurred for the preparation of trial. Fu also argued the section 998 offer was not made in good faith, as the $15,000 offered paled in comparison to the amount Fu arguably lost when his employment with the MTA was terminated and the amount of the jury verdict.
MTA filed a response to the motion to tax costs, arguing that there is no requirement that expert witnesses be designated or testify before costs can be awarded under section 998. MTA further argued its settlement offer was made in good faith, since the Court of Appeal reversed the judgment in favor of Fu, an indication that the case had little value.
Fu’s reply brief in support of the motion to tax costs argued MTA did not submit any documentation regarding services rendered by any of the experts and failed to submit admissible evidence to establish the reasonableness of the expert witness fees claimed.
Oral argument on costs was held on April 20, 2007. Counsel for Fu repeated the arguments that MTA’s request for costs was not supported by any documentation, only one expert had been identified for purposes of trial and there was no paperwork in the case referencing the other experts, and none of MTA’s experts testified at trial. The trial court noted that once an objection was made to a claim for costs, MTA should come forward with supporting documentation. In this case, MTA presented no timesheets or billings from the experts. MTA took the position that a declaration of counsel stating the total costs for experts was sufficient. MTA also argued there is no requirement the expert testify at trial in order to be awarded costs. MTA’s counsel offered to obtain invoices if desired by the court, but that they were not necessary.
The trial court expressly recognized that it had discretion and denied expert witness fees to MTA. In the course of its ruling, the trial court pointed out that only one expert was designated and none of the experts testified at trial. In addition, MTA did not present timesheets or documentation of any expert witness hours and no specification of the work performed, services rendered, and time expended. The trial court awarded costs to MTA in the amount of $6,083.46.
2. Analysis
MTA relies upon section 998 as the basis for its request for expert witness fees as an element of costs. Section 998 provides in pertinent part as follows: “(c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” Costs in the form of expert witness fees under section 998 are discretionary. (See Skistimas v. Old World Owners Assn. (2005) 127 Cal.App.4th 948, 953; Evers v. Cornelson (1984) 163 Cal.App.3d 310, 314.) We therefore review the denial of costs under the deferential abuse of discretion standard. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.)
The trial court in denying expert witness fees as costs referenced the following: only one expert was designated, and he did not testify; the other experts for whom fees were sought never testified; and MTA did not present timesheets or documentation of any expert witness hours and no specification of the work performed, services rendered, and time expended. As such, the trial court did not deny expert witness fees only on the ground the experts were not named and/or did not testify—instead, it also found insufficient proof to support the award. This determination was well within the discretion of the trial court, as the record lacks proof as to what work was performed by any of the experts, the number of hours worked, and the reasonableness of the charges.
MTA’s reliance on Michelson v. Camp (1999) 72 Cal.App.4th 955 is misplaced. It is true that Camp held that expert witness fees may be awarded under section 998, even if the witness did not testify. (Id. at pp. 975-976.) Camp did not, however, hold that such fees must be awarded. Camp is procedurally distinguishable from the instant case because the appeal in Camp was taken from an order awarding costs as expert witness fees, and all inferences in favor of the trial court’s discretionary award were thus viewed from the prospective that the award was presumptively correct. The trial court in this case denied fees in its discretion, finding in part that the documentation submitted by MTA was insufficient to justify an award of costs for expert witness fees. Without documentation as to the services performed and invoices issued by MTA’s experts, the trial court was free to deny an award of costs in the form of expert witness fees in the sound exercise of its discretion.
Attorney Fees
MTA contends the trial court abused its discretion in denying its motion for attorney fees. MTA sought attorney fees in the amount of $226,083.52, as the prevailing party on Fu’s claims brought under FEHA. MTA argues it was an abuse of discretion to deny attorney fees because Fu’s FEHA claims were frivolous, unreasonable, and without foundation.
1. Proceedings on the Motion for Attorney Fees
MTA’s attorney filed a declaration in support of the motion for attorney fees, taking the position that because Fu had signed a release from liability in connection with his termination, and accepted enhanced retirement benefits, any action was completely barred under the FEHA. MTA’s attorney had written a letter to Fu’s attorney before trial informing him the case did not have merit and should be abandoned in light of Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353 (Skrbina). Little of the time at trial was attributable to the claim of failure to rehire Fu as a result of age discrimination, as the bulk of witnesses and exhibits related to the wrongful termination claim. MTA requested 80 percent of its attorney fees based on the wrongful termination claim. MTA argued the decision of this court in the underlying appeal was proof that Fu’s action was frivolous.
The letter is part of the record on appeal. It does not contain a reference to Skrbina.
Fu opposed the motion for attorney fees on the grounds that the motion was untimely and that MTA could not establish that Fu’s action was frivolous. Fu disputed that the letter from counsel for MTA asking Fu to dismiss the case mentioned Skrbina. The case was not frivolous, since the trial judge denied summary judgment, the jury returned a substantial verdict, and although reversed on appeal, the Court of Appeal never deemed the action frivolous.
MTA’s reply to the opposition to the motion for attorney fees argued that Fu could not properly rely on the ruling of the trial court on summary judgment or the jury’s verdict to demonstrate that the action was brought in good faith, because reversal on appeal eliminated those matters from consideration. MTA argued this court’s decision in Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762 (Linsley) compelled a finding that Fu’s action was frivolous because he continued to litigate after the waiver of liability was called to his attention.
The trial court considered oral argument on the request for attorney fees on June 4, 2007. The trial court ruled that MTA’s motion for attorney fees was timely, but denied the motion on the basis that Fu’s case was not frivolous. In support of its determination that Fu’s action was not frivolous, the trial court noted it had denied MTA’s motion for summary judgment as to the release from liability, and while the Court of Appeal disagreed on the merits of that motion, the reviewing court did not deem the action frivolous. As to the failure to rehire due to age discrimination claim, the trial court observed that the Court of Appeal found that Fu had made out a prima facie case of discrimination, but that he had not rebutted MTA’s nondiscriminatory reason for hiring someone else. Under Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, the existence of a prima facie case of discrimination under the FEHA is sufficient to establish that the claim is not frivolous, even if the ultimate result is a defense judgment.
2. Analysis
Under the FEHA, “the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code, § 12965, subd. (b).) A successful defendant in an action brought under the FEHA may recover attorney fees if the plaintiff’s claim was frivolous, unreasonable, meritless, or vexatious. (Linsley, supra, 75 Cal.App.4th at pp. 765-766; Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.) Attorney fees may not be awarded to a defendant merely because the plaintiff’s FEHA claim failed. (Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.) An action under the FEHA is not frivolous where some evidence of discrimination is presented. (Id. at pp. 1389-1390.) We review an award under this statute under the abuse of discretion standard. (Linsley, supra, 75 Cal.App.4th at pp. 765-766.)
In Linsley, this court upheld an award of attorney fees to an employer in a FEHA action based upon a finding by the trial court that the plaintiff signed a release at the time of termination of employment, rendering his subsequent civil action frivolous. Linsley, however, presented a different procedural posture than the instant case, because it was an appeal taken from an award of attorney fees in favor of a defendant, the opposite of the scenario present here. (Linsley, supra, 75 Cal.App.4th at p. 767.) Linsley does not hold or suggest that all FEHA cases resolved on the basis of a release are frivolous and warrant an award of attorney fees, because to do so would divest the trial court of its discretion in awarding or denying fees.
“A trial court must find several elements to hold an action frivolous or in bad faith: (1) The action must be determined to be without merit; (2) the action is prosecuted for an improper motive, including harassment or delay; or (3) the action indisputably has no merit, where any reasonable attorney would agree that the action is totally and completely without merit. [Citations.]” (Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1177.)
The trial court’s determination that Fu’s action was not frivolous was a reasonable exercise of discretion. Although this court disagreed with the trial court’s analysis, summary judgment was denied by an experienced and respected bench officer. The jury returned a substantial verdict based upon the facts presented to it. Our opinion in the underlying appeal did not deem the action frivolous. To the contrary, we held that Fu had satisfied his burden of presenting a prima facie case of discrimination, although he failed to rebut MTA’s explanation for why Fu was not rehired. Given these circumstances, the trial court did not abuse its discretion in ruling that Fu’s claim was not frivolous.
DISPOSITION
The order denying costs for expert witnesses pursuant to section 998 is affirmed. The order denying attorney fees is affirmed. Respondent Warren Fu is awarded costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.