Davis v. KGO-T.V., Inc.

• Decision Date: 05 February 1998
• Docket Number: No. S057813,KGO-T,S057813
• Citation: 71 Cal.Rptr.2d 452,17 Cal.4th 436,950 P.2d 567
• Court: California Supreme Court
• Parties: , 950 P.2d 567, 75 Fair Empl.Prac.Cas. (BNA) 1736, 74 Empl. Prac. Dec. P 94,311, 98 Cal. Daily Op. Serv. 961, 98 Daily Journal D.A.R. 1298 Steve DAVIS, Plaintiff and Appellant, v.V., INC., Defendant and Appellant

Page 452

71 Cal.Rptr.2d 452

17 Cal.4th 436, 950 P.2d 567, 75 Fair Empl.Prac.Cas. (BNA) 1736,

74 Empl. Prac. Dec. P 94,311,

98 Cal. Daily Op. Serv. 961,

98 Daily Journal D.A.R. 1298

Steve DAVIS, Plaintiff and Appellant, v. KGO-T.V., INC., Defendant and Appellant.

No. S057813.

Supreme Court of California

Feb. 5, 1998.

Rehearing Denied March 25, 1998.

Daniel U. Smith, Kentfield, Ted W. Pelletier, McGuinn, Hillsman & Palefsky, John A. McGuinn and Kerry J. McLean, San Francisco, for Plaintiff and Appellant.

Brad Seligman, Berkeley, James C. Sturdevant, San Francisco, Endeman, Lincoln, Turek & Heater, Linda B. Reich, San Diego, and George H. Kaelin III as Amici Curiae on behalf of Plaintiff and Appellant.

Kauff, McClain & McGuire, Maureen E. McClain and Glen C. Shults, San Francisco, for Defendant and Appellant.

Paul, Hastings, Janofsky & Walker, Paul Grossman, Proskauer Rose, Jeffrey A. Berman and Gloria C. Jan, Los Angeles, as Amici Curiae on behalf of Defendant and Appellant.

MOSK, Justice.

Government Code section 12965, subdivision (b), provides that the trial court, in an action brought under the Fair Employment and Housing Act (hereafter FEHA), has discretion to award "reasonable attorney fees and costs" to the prevailing party. Code of Civil Procedure section 1033.5 provides that the fees of an expert not ordered by the court are not recoverable costs, except when expressly authorized by law.

We granted review in this matter to answer the question whether fees of an expert not ordered by the court may be recovered by the prevailing party in an FEHA action. We conclude that, in the absence of any law expressly authorizing the award of such fees, the answer is negative. Accordingly, we affirm the judgment of the Court of Appeal, which held to that effect.

I.

Plaintiff Steve Davis was terminated as a reporter for defendant KGO-T.V., Inc. (hereafter KGO). At the time of termination, he was 53 years old and had worked for KGO for 20 years. He brought an action alleging wrongful termination on the basis of age, in violation of FEHA. (Gov.Code, § 12900 et seq.) A jury found that Davis had suffered damages in the amount of $484,579, but reduced its award to $224,419, finding that he could have earned the difference if he had made reasonable efforts to obtain substitute employment. The trial court entered a judgment in accord with the verdict and further awarded him costs and attorney fees of $49,691.38 and $290,030, respectively. The costs awarded included approximately $45,000 for the fees of several experts not ordered by the court.

Both parties appealed on various grounds, including, as relevant here, the costs award. Although it affirmed the judgment in all other respects, the Court of Appeal concluded that the trial court erred in allowing fees of experts not ordered by the court as an allowable item of costs. It reversed the award and remanded the matter to the trial court for redetermination of costs in accordance with its decision. We granted review on this point.

II.

The "costs" of a civil action consist of the expenses of litigation, usually excluding attorney fees. Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute. "It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party." (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732, 34 Cal.Rptr.2d 283; Williams v. Atchison etc. Ry. Co. (1909) 156 Cal. 140, 141, 103 P. 885.)

The statute at issue, Government Code section 12965, subdivision (b), states that, in an FEHA action, "the court, in its discretion, may award to the prevailing party reasonable attorney fees and costs...." Although it thus authorizes the trial court to shift the prevailing party's "costs" to the losing party, it does not define the term "costs."

Plaintiff seeks to recover the fees of several experts not ordered by the court. He argues that the term "costs," as it appears in Government Code section 12965, subdivision (b), includes any and all items of cost, subject only to the trial court's discretion.

The Court of Appeal held that the fees of such an expert are not allowable "costs." Its holding is sound. Both before and after the enactment of Government Code section 12965, subdivision (b), certain items of costs have been recognized as allowable, certain items of costs, including the fees of experts not ordered by the court, have been recognized as nonallowable except when expressly authorized by law, and other items of costs have been recognized as allowable in the court's discretion.

Prior to the enactment of Government Code section 12965, subdivision (b), in 1978, the term "costs" was held to mean " 'those fees and charges which are required by law to be paid to the courts, or some of their officers' or an amount which is expressly fixed by law as recoverable as costs." (Gibson v. Thrifty Drug Co. (1959) 173 Cal.App.2d 554, 556, 343 P.2d 610.) Although the trial court had broad discretion in awarding costs, not all the expenses of a party were allowable items of costs. As pertinent here, nonallowable items of costs included the fees of experts not ordered by the court. (Metropolitan Water Dist. v. Adams (1944) 23 Cal.2d 770, 773, 147 P.2d 6; Rabinowitch v. Cal. Western Gas Co. (1967) 257 Cal.App.2d 150, 161, 65 Cal.Rptr. 1; ABC Egg Ranch v. Abdelnour (1963) 223 Cal.App.2d 12, 19, 35 Cal.Rptr. 487.)

In Metropolitan Water Dist., the defendants sought costs, including the fees of experts, in connection with a condemnation action (Metropolitan Water Dist. v. Adams, supra, 23 Cal.2d at p. 771, 147 P.2d 6.) They relied on former Code of Civil Procedure section 1255a, which provided that, upon the abandonment of condemnation proceedings, defendants were entitled to " 'costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees....' " (23 Cal.2d at p. 772, 147 P.2d 6.) The plaintiff countered that the fees and expenses of an expert employed by a party to testify in court or for work done outside of court were not taxable as costs. We cited former Code of Civil Procedure section 1871, a general statute that empowered the trial court to appoint and fix compensation for expert witnesses, but providing that a party producing an expert witness not ordered by the court " 'shall be entitled to the ordinary witness fees only.' " (23 Cal.2d at p. 772, 147 P.2d 6) We held that because there was no express statutory authority for an award of the fees of an expert witness who was not appointed by the court, the fees were not an allowable item of costs: "Because the trial court made no order appointing as an expert any one of the ... persons for whom compensation is claimed ..., there can be no recovery for amounts paid or incurred as the expense of expert witnesses." (Id. at p. 774, 147 P.2d 6.)

In Rabinowitch, the trial court disallowed the fees of an expert as an item of costs under the general fee shifting provisions of former Code of Civil Procedure sections 1032 and 1033. The Court of Appeal affirmed. "Although there is no statutory definition of 'costs' in California (see Code Civ. Proc., §§ 1032-1033), the term has been held to encompass fees and charges required by law to be paid to the courts or their officers, or amounts specifically fixed by law as recoverable. [Citation.] The fees of experts employed by one of the parties are normally not allowable as costs." (Rabinowitch v. Cal. Western Gas Co., supra, 257 Cal.App.2d at p. 161, 65 Cal.Rptr. 1.) It explained, "[W]here, as here, an [expert] is not appointed by the court but is employed by one of the parties, 'the temptation to act in the interest of such party must be apparent' and 'the court should not require the opposite party to pay for the services thus rendered.' " (Id. at p. 162, 65 Cal.Rptr. 1, quoting Faulkner v. Hendy (1889) 79 Cal. 265, 266, 21 P. 754.) ¹

Subsequent to the enactment of Government Code section 12965, the Legislature enacted Code of Civil Procedure section 1033.5, to expressly define the term "costs" as used in Code of Civil Procedure section 1032, the principal statute governing the right of a prevailing party to recover costs. Code of Civil Procedure section 1033.5 specifies which costs are "allowable" (id., subd. (a)), which are "not allowable ..., except when expressly authorized by law" (id., subd. (b)), and which may be allowed or denied in the court's discretion (id., subd. (c)). Allowable costs include ordinary witness fees and the fees of experts ordered by the court, so long as they are "reasonably necessary" to the conduct of the litigation and "reasonable" in amount. (Code Civ. Proc. 1033.5, subds. (a)(7) & (8) & (c)(1-3).) Nonallowable costs include fees of experts not ordered by the court, "except when expressly authorized by law." (Id., 1033.5, subd. (b)(1).)

As explained in an analysis prepared by the Assembly Judiciary Committee, Code of Civil Procedure section 1033.5 was intended not to alter existing law but, instead, to eliminate confusion by specifying for general purposes "which costs are and which costs are not allowable." (Assem. Jud. Com., 3d reading analysis of Sen. Bill No. 654 (1985-1986 Reg. Sess.) Apr. 17, 1986, p. 1.) The lists of allowable and nonallowable costs included in the statute, it explains, "are essentially restatements of existing law, and to a large extent are codifications of case law." (Ibid.) "The California Judges Association (CJA), which is the source of this bill, states that the existing law, rules and procedures relating to the awarding of litigation costs are hard to find and hard to follow. This bill is intended to rectify that situation by enacting comprehensive statutory lists of which costs are and are not allowable so that litigants and judges will no longer have to...