DAVIS v. KGO INC

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

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

Nos. A068644, A070030.

Decided: October 31, 1996

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.

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

DISCUSSIONI.–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 2000e–5, subdivision (k) expressly authorizes an award of “a reasonable attorney's fee (including expert fees ) as part of the costs.”  (Emphasis added.)   Age discrimination, however, is not a Title VII violation.   Rather, it is prohibited by the provisions of the Age Discrimination in Employment Act (ADEA), 29 United States Code sections 621–634.   Section 626 authorizes civil actions by persons claiming injury resulting from age discrimination (subd. (c)), and refers to 29 United States Code section 216 as setting forth the powers, remedies and procedures to be employed in such actions.  (Subd. (b).)   Unlike 41 United States Code section 2000e–5, subdivision (k), section 216, subdivision (b) does not expressly authorize an award of expert witness fees, providing only that the court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.”

 The distinction between these provisions of Title VII and the ADEA have historical significance.   Prior to the decision in Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, federal courts recognized in themselves the authority to shift attorney fees from a prevailing plaintiff to a losing defendant on a theory of private attorney general.   At least some courts on the same theory also shifted expert witness fees to the losing defendant.  (See West Virginia Univ. Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 92–93, 111 S.Ct. 1138, 1143–44, 113 L.Ed.2d 68, and cases cited there.)   The Supreme Court in Alyeska concluded that courts have no power to shift attorney fees without express legislative authorization, finding that whether attorney fees should be awarded is a policy matter that the Legislature has reserved to itself.  “Since the approach taken by Congress to this issue has been to carve out specific exceptions to a general rule that federal courts cannot award attorneys' fees ․ those courts are not free to fashion drastic new rules with respect to the allowance of attorneys' fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts' assessment of the importance of the public polices involved in particular cases.”  (Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. at p. 269, 95 S.Ct. at p. 1627.)   The Legislature responded to Alyeska by amending certain statutes (the so-called “fee-shifting” statutes) to expressly authorize awards of attorney fees.   As pre-Alyeska law had held that attorney fees included expert witness fees, a question arose as to whether these fee-shifting statutes should be interpreted to include expert witness fees.   This question was answered in the negative by the Supreme Court in Crawford Fitting Co. v. J.T. Gibbons (1987) 482 U.S. 437, 439, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 and West Virginia Univ. Hospitals, Inc. v. Casey, supra, 499 U.S. at p. 92, 111 S.Ct. at p. 1143.   The court in West Virginia Hospitals explained that notwithstanding such pre-Alyeska cases as had implied that expert witness fees might be an element of attorney fees, the two are separate elements of litigation costs.  (499 U.S. at p. 89, 111 S.Ct. at p. 1142.)   The court found it significant that Congress expressly shifted attorney fees and expert witness fees in some statutes amended or enacted after Alyeska,10 but did not mention expert witness fees in other statutes.   These others included 42 United States Code sections 1988 and 2000e–5 under Title VII, which had been amended to shift attorney's fees in Civil Rights actions.  “Congress could easily have shifted ‘attorney's fees and expert witness fees,’ or ‘reasonable litigation expenses,’ ․;  it chose instead to enact more restrictive language, and we are bound by that restriction.”  (West Virginia Univ. Hospitals, Inc. v. Casey, supra, 499 U.S. at p. 99, 111 S.Ct. at p. 1147.)   Congress responded by amending 42 United States Code sections 1988 and 2000e–5, subdivision (k), to expressly authorize an award of expert witness fees in addition to attorney fees.   Congress, however, did not similarly amend 29 United States Code sections 216(b) and 626(b).   The result is that expert witness fees are not recoverable under the ADEA. (Gray v. Phillips Petroleum Co. (10th Cir.1992) 971 F.2d 591, 594–595.)   Thus, under federal law, expert witness fees may not be awarded as an ordinary element of costs and may not be awarded absent express, explicit statutory authorization.   In addition, expert witness fees are not an element of attorney fees and may not be awarded simply because an award of attorney fees is authorized by statute.

Government Code section 12965, of course, is not part of the ADEA, and the fact that expert witness fees are not recoverable under the ADEA does not compel the conclusion that they may not be recovered under section 12965.   Nonetheless, like the United States Congress, California's Legislature has responded to cases such as Alyeska, supra.   California's Private Attorney General Statute, Code of Civil Procedure section 1021.5 was such a response.  (Beasley v. Wells Fargo Bank, supra, 235 Cal.App.3d at p. 1420, 1 Cal.Rptr.2d 459.)   The Legislature, however, which expressly has authorized awards of expert witness fees in a number of a actions,11 has not expressly authorized them in age discrimination cases, providing only that attorney fees and costs are available.   It follows that expert witness fees may be awarded in age discrimination cases only if they are available absent express legislative authorization, or if Government Code section 12965's authorization for an award of costs is express Legislative authorization for an award of expert witness fees.

 We decline to find that expert witness fees may be awarded absent express statutory authorization.   Although, as noted, we are not bound by the decisions in the federal court cases, it is persuasive that they represent a substantial body of federal law that has litigated exactly this question, under an analogous statute, and has reached the same conclusion.   It is true, as Davis points out, that the court in Beasley v. Wells Fargo Bank, supra, 235 Cal.App.3d 1407, 1 Cal.Rptr.2d 459, upheld an award of expert witness fees in an action brought on a private attorney general theory under Code of Civil Procedure section 1021.5.   The present case is not such an action.   Although this case in a sense furthers the important public interest against age discrimination, there is no question but that Davis brought the action not in order to benefit the public, but in order to obtain personal compensation for KGO's wrongful acts.  “Section 1021.5 is intended as a ‘bounty’ for pursuing public interest litigation, not a reward for litigants motivated by their own interests who coincidentally serve the public.  [Citations.]  ‘The private attorney general theory recognizes citizens frequently have common interests of significant societal importance, but which do not involve any individual's financial interests to the extent necessary to encourage private litigation to enforce the right.  [Citation.]   To encourage such suits, attorneys fees are awarded when a significant public benefit is conferred through litigation pursued by one whose personal stake is insufficient to otherwise encourage the action.’  [Citations.]”  (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 570, 35 Cal.Rptr.2d 396;  and see also Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 76–77, 49 Cal.Rptr.2d 348.)   That expert witness fees, or indeed attorney fees, might be awarded in the absence of express legislative authority in private attorney general actions thus results in part from the special equities that apply in such cases.  (See Beasley v. Wells Fargo Bank, supra, 235 Cal.App.3d at pp. 1420–1421, 1 Cal.Rptr.2d 459;  Woodland Hills Residents Assn. Inc. v. City Council (1979) 23 Cal.3d 917, 930, 154 Cal.Rptr. 503, 593 P.2d 200;  Serrano v. Priest (1977) 20 Cal.3d 25, 46–48, 141 Cal.Rptr. 315, 569 P.2d 1303.)   As the present case does not meet the criteria for an action brought on a private attorney general theory, these equities do not exist and provide no basis for departing from the approach adopted by the federal courts.   The only other case that has addressed this question at all is Bouman v. Block, supra, 940 F.2d 1211.   The court in that case, however, after correctly finding that Government Code section 12965 authorizes an award of costs, simply upheld an award of expert witness fees under section 12965 as an item of costs without citing any authority for that proposition or engaging in any analysis of the relevant legal authority.  (Id. at p. 1237.12 )  The summary and conclusory nature of the decision, virtually devoid of reasoning, undermines its value as authority.  (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 533, 162 Cal.Rptr. 327, 606 P.2d 362.)   In short, the bulk of relevant legal authority, and the authority we find persuasive, holds that with the exception of fees awarded under a private attorney general theory, expert witness fees may not be awarded to a prevailing party in the absence of express statutory authority.

The remaining question is whether Government Code section 12965 should be construed as providing such express statutory authority.  Section 12965, subdivision (b) expressly authorizes an award of “costs” to the prevailing party.   Davis points out that expert witness fees are an element of “costs,” arguing that by specifying that costs may be awarded, the Legislature must have intended that any costs actually incurred in litigation, including expert witness fees, may be awarded.   As noted above, however, expert witness fees ordinarily are not an allowable item of costs.   Thus, Code of Civil Procedure section 1032 sets forth the general rule that a party who prevails at trial is entitled to its costs as matter of right.   Code of Civil Procedure section 1033.5 limits the items of costs available to such a prevailing party, providing, as relevant here, that expert witness fees for experts not ordered by the court are not an allowable item of costs. (§ 1033.5, subd. (b)(1).)   Davis argues that costs allowable under section 12965 should not be considered co-extensive with costs available to a prevailing party under section 1032, pointing out that a contrary finding would create a redundancy rendering section 12965's allowance of costs superfluous.   Davis is correct.   This redundancy can be avoided, however, only by construing the term “costs” in section 12965 to include items not allowable as costs under section 1033.5, a construction that suggests a certain amount of legislative capriciousness.   In addition, that the Legislature has directly and unambiguously authorized awards of expert witness fees in some statutes argues against a conclusion that a less clear directive should be construed as authorizing such awards.   On balance, and in the absence of some clear expression of legislative intent, it seems to us preferable to interpret the term “costs” in accordance with the ordinary usage of the term in the context of costs awarded to prevailing parties.   Faced with a similar question, the court in Gray v. Phillips Petroleum Co., supra, 971 F.2d 591 reached a similar conclusion in its analysis of 29 U.S.C. § 216, incorporated into the ADEA. Section 216 provides that the district court may award a reasonable attorney's fee and costs of the action.   As here, the prevailing party in Gray argued that the term “costs” should be interpreted to include expert witness fees in order to avoid the redundancy that would result by interpreting it to include only those items ordinarily allowable as costs under 28 U.S.C. §§ 1821 and 1920.   The court held:  “While we are reluctant to read redundancy into a federal statutory scheme, we are bound by the Supreme Court's pronouncement that the limit on witness fees provided in 28 U.S.C. § 1821 can be lifted only when there is ‘plain evidence of congressional intent to supersede’ §§ 1920 and 1821.”  (Gray v. Phillips Petroleum Co., supra, 971 F.2d at p. 595.)   Unlike the federal court we are not bound by the Supreme Court's pronouncement.   We have, however, adopted the Supreme Court's reasoning and, like the Gray court, cannot find in the use of the term “costs” a legislative intent to supersede the limitations on costs set forth in Code of Civil Procedure section 1033.5.

Davis cites Bussey v. Affleck, supra, 225 Cal.App.3d 1162, 275 Cal.Rptr. 646, where it was concluded that costs such as expert witness fees might be awarded under a contract providing for an award of “ ‘all costs and expenses of collection including reasonable attorneys fees.’ ”  (Id. at p. 1164, 275 Cal.Rptr. 646.)  Bussey was decided before the Supreme Court decided West Virginia Univ. Hospitals, Inc. v. Casey, supra, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68.   To the extent that the Bussey decision rests on the conclusion that expert witness fees may be deemed an item of attorney fees, relying on federal case law, its value as authority is undermined by the Supreme Court's subsequent disapproval of those federal cases reaching similar conclusions.   In addition, the decision in Bussey was based on the court's interpretation of a contract awarding costs, rather than on a statute awarding costs.   The court accordingly concluded that by contract the parties may award items of costs not ordinarily allowable under section 1033.5.  (Id. at p. 1167, 275 Cal.Rptr. 646.)   The contract at issue in Bussey certainly was susceptible to the interpretation that the parties intended that all actual costs would be awarded, as opposed only to those allowable under Code of Civil Procedure section 1033.5.   In addition, the decision in Bussey has been criticized on exactly this point.   The court in Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 28 Cal.Rptr.2d 878, disagreeing with the reasoning of the court in Bussey, and citing West Virginia Hospitals, Inc. v. Casey, held:  “When the numerous statutory provisions in which expert witness fees are expressly declared recoverable are considered together with the express prohibition against the inclusion of such fees in a cost award otherwise, the Legislature's intent becomes clear.   The Legislature has reserved to itself the power to determine selectively the types of actions and circumstances in which expert witness fees should be recoverable as costs and such fees may not otherwise be recovered in a cost award.”   (Id. at pp. 1624–1625, 28 Cal.Rptr.2d 878.)   Finally, the court that decided Ripley also decided California Housing Finance Agency v. E.R. Fairway Associates I, supra, 37 Cal.App.4th 1508, 44 Cal.Rptr.2d 591, cited by Davis as supporting the argument that the term “costs” in statutes such as Government Code section 12695 ordinarily should be construed as meaning all actual costs of litigation, whether or not allowable under Code of Civil Procedure section 1033.5.   We read California Housing as supporting the opposite argument.   The court in that case found that costs not allowable under Code of Civil Procedure section 1033.5 might be recovered under the authority of Health and Safety Code section 51205.   The finding was based on the specific language of section 51205 providing, “Notwithstanding any other provision of law, the prevailing party in any action instituted pursuant to this section shall be awarded costs and reasonable attorney's fees, in an amount to be determined in the court's discretion.”   The court concluded:  “The introductory phrase of section 51205(f), ‘[n]otwithstanding any other provisions of law,’ qualifies the operative language of the section entitling the prevailing party to recover ‘costs and reasonable attorney's fees.’ ”   Thus ‘any other provision of law’ relating to costs, to the extent contrary to or inconsistent with section 51205(f), is subordinated to the latter provision.   This would include Code of Civil Procedure section 1033.5, subdivision (b) which specifies items ‘not allowable as costs except when expressly authorized by law.’   This analysis is buttressed by the final clause of section 51205(f) which allows costs ‘in an amount to be determined in the court's discretion.’   Ordinarily, the prevailing party is entitled ‘as a matter of right’ to those costs which are allowed by statute.  (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a).)  The express language of section 51205(f) that costs be awarded ‘in an amount to be determined in the court's discretion’ strongly implies that the limitations on cost awards set forth in Code of Civil Procedure section 1033.5, subdivision (b) do not apply in [actions brought pursuant to section 51205].”  (California Housing Finance Agency v. E.R. Fairway Associates I, supra, 37 Cal.App.4th at pp. 1515–1516, 44 Cal.Rptr.2d 591.)   The holding, accordingly, supports the argument that a statute that lacks such language and simply provides for an award of costs permits an award only of such costs as are allowable under section 1033.5.  Government Code section 12695 contains none of the language found significant by the court in California Housing.   In this respect it is also relevant that the court in West Virginia Univ. Hospitals, Inc. v. Casey, supra, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68, surveying pre-Alyeska caselaw, noted that the courts routinely declined to award expert witness fees under a statute authorizing awards of “ ‘the cost of suit, including a reasonable attorney's fee.’ ”  (Id. at p. 94, 111 S.Ct. at p. 1144.)

 For all of these reasons we conclude that nothing in the case law, and nothing in section 12965 itself, authorizes an award of expert witness fees in actions such as this.   The matter will be remanded so that the trial court can recalculate its costs award.

DAVIS'S CROSS–APPEAL ***

CONCLUSION

The award of costs is reversed and the matter remanded to the trial court for a redetermination of costs in accordance with the principles discussed in this opinion.   In all other respects the judgment is affirmed.   Davis is entitled to the costs and reasonable attorney fees incurred by him in responding to KGO's appeal.   KGO is entitled to any costs incurred by it in responding to Davis's cross-appeal.

FOOTNOTES

1.   Government Code section 12941 provides in relevant part, “(a) It is unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action.”

FOOTNOTE.   See footnote *, ante.

9.   Davis actually sought twice this amount, or $703,697, arguing that the $351,848.50 should be viewed as a lodestar fee and should be multiplied by two on a private attorney general theory.  (See Crommie v. State of Cal., Public Utilities Com'n (1994) 840 F.Supp. 719, passim.)

10.   E.g., 15 U.S.C. §§ 2618(d), 2619(c)(2) (the Toxic Substances Control Act);  15 U.S.C. §§ 2060(c), 2072(a), 2073 (the Consumer Product Safety Act);  42 U.S.C. 6972(e) (the Resource Conservation and Recovery Act of 1976).

11.   “(E.g., Business and Professions Code section 8768.5 (actions to compel county surveyor to file record of survey);  Civil Code sections 987, subdivision (e)(4) and 989, subdivision (f)(1) (actions to protect artwork from alteration or destruction);  Civil Code section 1745, subdivision (d) (actions against art dealer for lack of full disclosure);  Civil Code section 7011 [now Family Code section 7640] (paternity actions);  Code of Civil Procedure section 1036 (inverse condemnation actions);  Code of Civil Procedure section 1038, subdivision (b) (pretrial dispositions in bad faith actions for indemnity/contribution or under the Tort Claims Act);  Code of Civil Procedure section 1235.140 (eminent domain actions);  Corporations Code section 1305, subdivision (e) (actions to determine fair market value of dissenting shares);  Government Code section 8670.56.5, subdivision (e), and Harbors and Navigation Code section 294, subdivision (e) (actions for damages from oil spill)).”  (Beasley v. Wells Fargo Bank, supra, 235 Cal.App.3d 1407, 1420, fn. 5, 1 Cal.Rptr.2d 459.)

12.   The court thus held:  “Under the California Fair Employment and Housing Act, the court may award costs to the successful party.   Cal.Gov.Code § 12965(b).   When a plaintiff proceeds under multiple theories and prevails on her FEPA claims, she is entitled to attorney's fees under FEPA. See generally Ackerman v. Western Electric Co., 860 F.2d 1514 (9th Cir.1988);  Stache v. International Union of Bricklayers and Allied Craftsmen, 852 F.2d 1231 (9th Cir.1988).   The district court had discretion to award costs under the California statute and did not abuse its discretion in doing so.”  (Bouman v. Block, supra, at p. 1237.)

FOOTNOTE.   See footnote *, ante.

STEIN, Acting Presiding Justice.

DOSSEE and SWAGER, JJ., concur.

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