Wage Law

The Supreme Court has just issued a ruling in Olson v. Automobile Club of Southern California (2008) __ Cal.4th __, regarding the recovery of expert witness fees under Code of Civil Procedure § 1021.5. Or, we should say, the non-recovery of expert witness fees under Code of Civil Procedure § 1021.5. The statement of issues on review was as follows:

Petition for review after the Court of Appeal modified and affirmed the judgment in a civil action. The court limited review to the following issue: Is a prevailing plaintiff who is awarded attorney's fees under the private attorney general statute (Civ. Code § 1021.5) entitled to recover expert witness fees?

The holding:

Code of Civil Procedure section 1021.5 provides, in pertinent part, that “[u]pon motion, a court may award attorneys’ fees to a successful party . . . in any action which has resulted in the enforcement of an important right affecting the public interest if . . . a significant benefit . . . has been conferred on the general public . . . .” We granted review in this matter to decide whether, under this statute, a prevailing plaintiff who is awarded attorney fees is also entitled to recover expert witness fees. In Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436 (Davis), we considered a similar issue, and concluded that Government Code section 12965, former subdivision (b), which then provided for an award of “ ‘reasonable attorney fees and costs’ ” to a prevailing party, did not permit an award of expert witness fees. (Davis, supra, 17 Cal.4th at pp. 438, 446; Gov. Code § 12965, former subd. (b), as amended by Stats. 1992, ch. 912, § 7.1, p. 4276.) Consistent with Davis and the plain language of the statute, we hold that a prevailing plaintiff is not entitled to an award of expert witness fees in addition to attorney fees under Code of Civil Procedure section 1021.5.

For most wage and hour lawyers and plaintiffs, the ruling changes little. Expert witness fees are relatively modest in wage and hour cases, and most wage claims have attorney's fee statutes that do not require the plaintiffs to rely upon the UCL or section 1021.5, and there are few wage and hour cases in which section 1021.5 is an important issue. If it's important to you, however, you can find the opinion here in pdf or word format.