In Baker v. Mulholland Security and Patrol, Inc., plaintiff sued his employer for retaliation, failure to pay overtime compensation, and failure to maintain records, claiming he was terminated after he complained about discriminatory remarks made on the job. The trial court disposed of his retaliation claim by summary adjudication, and the rest of the claims were dismissed after the parties reached a settlement. The trial court concluded that the plaintiff was terminated for his poor performance and that plaintiff failed to demonstrate there were triable issues whether defendant’s justification for its termination decision was pre-textual. The plaintiff filed two appeals, which were consolidated, challenging the judgment on the retaliation claim, as well as the trial court’s order awarding expert witness fees to defendant.

The Court of Appeals found no error the summary adjudication of plaintiff’s retaliation claim and affirmed the judgment. More importantly, however, it concluded the trial court applied an erroneous legal standard in awarding defendant its expert witness fees, and that any expert fee award would be an abuse of discretion because plaintiff made a sufficient prima facie showing of retaliation. The Court held that expert witness costs may not be recovered by a prevailing defendant in a Fair Employment and Housing Act action absent a showing that the action was frivolous.

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