Given the significant costs typically associated with retaining experts or consultants, employment lawyers, employees and employers all had a keen interest in the Supreme Court's recent opinion in Davis v. KGO-TV, Inc., 104 Daily Journal D.A.R. 1298 (February 6, 1998).

In Davis, the Supreme Court undertook to determine whether California Government Code section 12965(b) authorized recovery of expert witness fees as a component of "costs" by the prevailing party. Government Code section 12965(b) provides, in part, that "the court, in its discretion, may award to the prevailing party reasonable attorney fees and costs . . ." in an action brought under the Fair Employment and Housing Act ("FEHA"), California Govt. Code § 12900 et seq.

In Davis, the plaintiff, who had been employed as a television reporter for twenty years, successfully sued under FEHA for wrongful termination on the basis of age. The trial court, relying on section 12965(b), awarded Mr. Davis $49,691.38 in expert fees.

In California, as elsewhere, parties to litigation typically must bear their own costs, and there is no right to recover costs unless authorized by statute. See Garcia v. Hyster Co., 28 Cal. App. 4th 724, 732 (1994). The principal statute governing the recovery of costs is California Code of Civil Procedure section 1032, providing that the prevailing party in any action is entitled to recover costs "as a matter of right." In 1986, the Legislature enacted California Code of Civil Procedure section 1033.5, to define the term "costs" as used in Section 1032 and other fee-shifting statutes.

Section 1033.5, in turn, identifies certain costs that are "allowable," that are "not allowable . . . , except when expressly authorized by law," and that "may be allowed or denied in the court's discretion." Fees of experts not ordered by the court are specifically identified as not allowable "except when expressly authorized by law."

At trial and on appeal, Davis urged that section 12965(b) provided the necessary "authorization" to award expert fees as costs to a party prevailing in a FEHA action. Although the section does not specifically refer to such fees, Davis urged a liberal construction of its terms consistent with FEHA's overriding purpose to make victims of employment discrimination "whole." See Dyna-Med, Inc. v. Fair Employment & Housing Com., 43 Cal 3d 1379, 1387 (1987); see also Gov. Code § 12933.

In support of that construction, he pointed to the Ninth Circuit's opinion in Bouman v. Block, 940 F.2d 1211 (1991), upholding (without analysis) an award of expert fees as costs under the authority of California Government Code Section 12965(b). Davis also argued that Code of Civil Procedure Section 1033.5 should not be read as limiting a trial court's discretion to award expert fees under Section 12965(b). He characterized Section 1033.5 as limiting only the costs available to all prevailing parties "as a matter of right," but not limiting costs awardable in the exercise of the trial court's discretion under section 12965(b). To construe section 1033.5 otherwise, would make the independent provision for costs in section 12965(b) superfluous.

While recognizing that FEHA's remedial provisions should be liberally interpreted, KGO nonetheless maintained that Section 12965(b) could not reasonably be interpreted to authorize an award of expert fees to a prevailing party. Citing Gay Law Students Ass'n v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458 (1979), Cassista v. Community Foods, Inc., 5 Cal 4th 1050 (1993), Jennings v. Maralle, 8 Cal. 4th 121 (1994), and Dyna-Med, 43 Cal. 3d 1379 -- all cases in which the Supreme Court declined to expand remedial provisions of FEHA beyond their express wording -- KGO contended that section 12965(b)'s lack of any reference to expert fees was controlling.

KGO also asserted that the broader mandate of Section 1033.5 should be applied to limit the trial court's discretion to award costs under Section 12965(b). In that regard, the legislative history of Section 1033.5 indicated that the statute was intended to govern all awards of costs to prevailing parties.

The California Court of Appeal agreed with KGO and found additional support for the station's position in analogous federal statutes. For example, as in California, expert witness fees are not recoverable as costs in federal court in the absence of explicit statutory authorization. West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 92 (1991). Further, federal courts had held that expert witness fees were not recoverable as costs in cases brought under the Age Discrimination in Employment Act, 29 U.S.C. Sections 621-634, because there was no provision in the ADEA expressly authorizing the recovery of expert witness fees as costs. Gray v. Phillips Petroleum Co., 971 F.2d 591 (10th Cir. 1992).

Although it granted Davis' petition for review, the Supreme Court ultimately agreed with the Court of Appeal and reversed the award of expert fees. The court found no conflict or redundancy between Section 12965(b) and Section 1033.5 and determined that the provisions of section 1033.5 could fairly be read to limit a trial court's exercise of discretion under Section 12965(b). In reaching that result, the Supreme Court also looked to federal cases decided under the ADEA and found that because Section 12965(b) did not expressly authorize the recovery of expert witness fees, the general prohibition in Section 1033.5 should control.

Although the Court foreclosed the possibility of expert fee awards in individual actions brought under FEHA, it left the door open to such a recovery "in an action for age discrimination brought on a private attorney general theory, to benefit the public, under Code of Civil Procedure section 1021.5." However, individual litigants with discrete discrimination claims plainly will not be able to meet the requirements for an action brought under Section 1021.5. In the wake of Davis, individuals bringing actions under FEHA must carefully assess the need for expert testimony and make sure that the potential recovery warrants the investment made in any experts that are retained. Because the litigants now must bear these costs in the overwhelming majority of cases, Davis probably will be characterized as a victory for employers, who generally are better positioned to absorb the fees of experts than are individual litigants.

The impact of Davis may also stretch beyond its narrow holding. By reading FEHA's cost provisions literally, the Supreme Court again has indicated that the general public policies advanced by FEHA -- i.e., to eradicate discrimination based on immutable characteristics and to enable victims of discrimination to be made "whole" -- are not reason enough to expand the statute's provisions beyond their specific language.

The court's reliance on federal authorities addressing analogous statutory provisions under the ADEA also indicates that federal law may have a role to play in interpreting FEHA's provisions. Here, consideration of that federal law led to a narrower construction of FEHA than that urged by Mr. Davis. Whether federal law will be looked to in future cases to support a more expansive view of the statute's terms remains to be seen.