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

• Citation: 50 Cal.App.4th 772,58 Cal.Rptr.2d 13
• Decision Date: 31 October 1996
• Docket Number: A070030,KGO-T,Nos. A068644,s. A068644
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 50 Cal.App.4th 772 50 Cal.App.4th 772, 96 Cal. Daily Op. Serv. 8013, 96 Daily Journal D.A.R. 13,255 Steve DAVIS, Plaintiff, and Appellant, v.V., INC., Defendant and Appellant.

Page 13

58 Cal.Rptr.2d 13

Previously published at 50 Cal.App.4th 772

50 Cal.App.4th 772, 96 Cal. Daily Op. Serv. 8013,

96 Daily Journal D.A.R. 13,255

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

Nos. A068644, A070030.

Court of Appeal, First District, Division 1, California.

Oct. 31, 1996.

Certified for Partial Publication. ^*

Review Granted Jan. 28, 1997.

Maureen E. McClain, Glen C. Shults, Kauff, McClain & McGuire, Brad Seligman as Amicus Curiae, San Francisco, for Appellant.

John A. McGuinn, Kerry J. McLean, McGuinn, Hillsman & Palefsky, San Francisco, for Respondent.

STEIN, Acting Presiding Justice.

Steve Davis filed a complaint against KGO-T.V., Inc. ("KGO") and its owner, Capital Cities/ABC, Inc., seeking damages for unlawful age discrimination resulting in his termination as an employee with KGO. A jury returned a verdict against KGO, but in favor of Capital Cities. The jury found that Davis had suffered damages in the amount of $484,579, but reduced its award to $260,160, finding that Davis could have earned that amount had he made reasonable efforts to obtain substitute employment. The trial court denied Davis's motion for a partial judgment notwithstanding the verdict or for a new trial on the issue of damages for lost future earnings. It also denied KGO's motions for judgment notwithstanding the verdict and for a new trial. The court thereafter entered judgment for Davis in the amount of $260,160, and further awarded Davis costs and attorney fees of $49,691.38 and $290,030, respectively. KGO appeals from the judgment and from the orders denying its motion for a new trial and for judgment notwithstanding the verdict. Davis appeals from the order denying his motion for a partial judgment notwithstanding the verdict or for a new trial on the issue of damages. The appeals have been consolidated, and both are considered here.

FACTS

Davis worked at KGO since 1971. He became a senior reporter in 1981 and remained in that position until his termination in 1990. Prior to his termination, Davis had worked under seven news directors and at least five general managers. In 1988, James Topping became president and general manager of KGO. In May 1990, Milt Weiss became the station's news director. In November 1990, Weiss terminated Davis's employment, canceling what apparently was the last year of a five-year contract between Davis and KGO. Weiss testified that he terminated Davis because of his belief that Davis's reporting style did not meet KGO's standards, which required reporting to be fast-paced, organized and structured, kind of "show-biz." Weiss nonetheless hired Davis on a part-time free-lance basis for another year, beginning in February 1991. Davis had been working on a shift that began at 10 a.m. In April, three new, younger reporters were hired and Davis was moved to the 5 a.m. shift. The result was that Davis was working a less desirable shift and ended up working longer hours without additional compensation. The longer hours became an issue that finally was resolved, but Davis remained unhappy with the 5 a.m. shift. In October 1991, he told Weiss, " 'I may live to regret this, but I think keeping me on the 5:00 a.m. [shift] is a waste of my time and your money.' " Weiss told Davis that he was interested in having Davis do some "Focus" programs that Weiss contemplated initiating on the 6 o'clock evening news. Davis wrote a document outlining the agreement he believed he had reached with Weiss regarding his continued free-lance employment with KGO. He forwarded the document to Gene Ross, the assistant news director, but did not hear back from anyone at KGO. Davis continued to work through 1991. In January 1992, Weiss told Davis that Weiss would not be able to use Davis on the Focus programs after all. In the meantime, still other younger reporters had been hired by KGO. Davis's last date of employment with KGO was in February. Davis was then 53 years old.

On October 27, 1992, Davis filed a complaint alleging wrongful termination, claiming he was discharged on the basis of his age, a violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. ¹

KGO'S APPEAL

DISCUSSION

I.-IV. ^**

V.

Costs and Attorney Fees

Davis was awarded attorney fees of $290,030 and costs of $49,691.38, an award that apparently included expert witness fees. Government Code section 12965, subdivision (b) authorizes an award of attorney fees and costs to a party such as Davis. KGO contends, however (1) that the amount awarded as attorney fees was too high, and (2) that Davis was not entitled to expert witness fees.

Attorney Fees

KGO complains that lead attorney John McGuinn raised his hourly rate from $325 to $335 in May 1994, but the fee award reflects the greater rate for all of the time McGuinn spent on the case, resulting in an overpayment of $1,526.25. KGO complains that a second attorney's rates were billed at $150 per hour when, although she is an attorney and presumably performed the tasks of an attorney, she was not licensed to practice in California. In KGO's opinion she thus should have been billed at the rate for a paralegal. KGO argues that the award for hours spent by an associate at trial should be reduced because, again in KGO's opinion, the associate was not participating in the trial, but merely attending it for training purposes. Finally, KGO complains that Davis's attorneys were not entirely successful and that the fees awarded should be reduced to reflect only a limited success.

"It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.]" (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623, 134 Cal.Rptr. 602.) " 'The "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' [Citation.]" (Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1298, 228 Cal.Rptr. 709.) We find no abuse of discretion here. The trial court clearly exercised its discretion, reducing the award of fees from $351,848.50 sought by Davis. ⁹ The court was in a position to determine the value of the contribution made by each of Davis's attorneys and apparently did so in fashioning its award. We see no reason to limit the court's discretion by insisting that its award reflect exactly the rate ordinarily charged by an attorney at any given point in time, or a reduced rate for an attorney not licensed to practice in this state. We also are not persuaded that the award to Davis should be reduced because Davis did not prevail against one defendant, was not awarded punitive damages and did not prevail on his motion for partial judgment notwithstanding the verdict. Davis prevailed on his claim against KGO, and thus is entitled to the fees incurred by him in prosecuting that claim. Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 261 Cal.Rptr. 520, cited by KGO, is inapposite. The court in that case simply recognized that a trial court has the discretion to award only partial fees when a party has prevailed on only one or some of its claims. (213 Cal.App.3d at p. 248, 261 Cal.Rptr. 520.) Davis here prevailed on his substantive claims. That he did not recover all of the damages he sought requires no reduction in attorney fees.

Expert Witness Fees

Davis claimed $52,254.80 as "out-of-pocket" litigation expenses, including $44,764.94 as expert witness fees. Government Code section 12965, subdivision (b) authorizes an award of attorney fees and costs, but is silent as to expert witness fees. Code of Civil Procedure section 1033.5 sets forth the items allowable as costs. These items include ordinary witness fees (subd. (a)(7)), and fees of experts ordered by the court (subd. (a)(8)). Section 1033.5 explicitly disallows as costs, except as authorized by law, "Fees of experts not ordered by the court." (§ 1033.5, subd. (b)(1).) Davis nonetheless contends that expert witness fees properly were allowed as an item of costs here. His arguments are that such an award is authorized by statute, or, in the alternative under the authority of Bouman v. Block (9th Cir.1991) 940 F.2d 1211, Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1 Cal.Rptr.2d 459, California Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th 1508, 44 Cal.Rptr.2d 591 and Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 275 Cal.Rptr. 646. We reject these arguments, concluding that the question of whether expert witness fees should be awarded as an item of costs rests with the Legislature, and that absent express Legislative authorization, expert witness may not be awarded by courts in actions, such as this, brought to vindicate private rights.

Finding no California case or statute precisely on point, we turn to federal law, recognizing, as noted above, that it provides no more than persuasive authority in actions brought under California law. (Carr v. Barnabey's Hotel Corp., supra, 23 Cal.App.4th at p. 18, 28 Cal.Rptr.2d 127; Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at pp. 1316-1317, 237 Cal.Rptr. 884.) Like California law, federal law does not recognize expert witness fees as an ordinary element of costs. (28 U.S.C. §§ 1920, 1821(b).) A litigant, accordingly, may recover expert witness fees only if they are permitted by some overriding authority. The majority of the laws prohibiting discrimination in employment are set forth in the Civil Rights statutes of Title VII of the United States Code, 42 United States Code sections 2000e, et seq. Section...