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: July 29, 1996

Maureen E. McClain, Glen C. Shults, Kauff, McClain & McGuire, 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 by $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 $224,419, 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's 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, and in KGO's opinion 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 and was not awarded punitive damages or prevail on his motion for partial judgment notwithstanding the verdict.   Davis entirely 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 “Fees of experts not ordered by the court.” (§ 1033.5(b)(1).)   Davis nonetheless argues that the court in Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1 Cal.Rptr.2d 459, recognizes the validity of awards of expert witness fees in actions such as this.  Beasley, however, recognizes the validity of such awards only in actions 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 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.)

Finding no California case or statute directly on point, we turn to federal law.  (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 18, 28 Cal.Rptr.2d 127;  Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316–1317, 237 Cal.Rptr. 884.)   As with California law, federal law does not recognize expert witness fees as an ordinary element of costs.  (28 U.S.C. §§ 1821(b), 1920.)   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 [witness] 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 42 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 party.  (See West Virginia University Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 92–93, 111 S.Ct. 1138, 1143–1144, 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 University Hospitals, Inc. v. Casey, supra, 499 U.S. at p. 92, 111 S.Ct. at pp. 1143–1144.   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, 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 University 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), under Title VII, 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 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.   As the Beasley court pointed out, Code of Civil Procedure section 1021.5 was such a response.  (Post, fn.10.)   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.   In light of the post-Alyeska law, we are reluctant to read a legislative intent to award expert witness fees into statutes by implication.   Were we to do so, and thus to adopt the view that Government Code section 12965 permits an award of expert witness fees, we would be ignoring a substantial body of federal law that has litigated exactly that question, under an analogous statute, and has reached the opposite conclusion.   That expert witness fees, or indeed attorney fees, might be awarded in the absence of express legislative authority in private attorney general actions 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.   We conclude, therefore, that even if expert witness fees may be awarded in age discrimination cases brought under California's private attorney general statute, they may not be awarded in other age discrimination actions.

The trial court's award of costs was incorrect insofar as it awarded Davis his expert witness fees.   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.)

FOOTNOTE.   See footnote *, ante.

STEIN, Acting Presiding Justice.

DOSSEE and SWAGER, JJ., concur.