Second District, Division 8 Gives Us a Good Reminder on Statutory Interplay of Costs Provisions.
Although the facts are important in other respects, Trattmann v. Key, Case No. B204150 (2d Dist., Div. 8 June 22, 2010) (unpublished) is a great reminder on how statutory provisions regarding an award of routine costs interact with each other as far as recovery of non-listed costs.
The main issue, a big one in many cases, is whether expert witness fees of $109,389.93 were properly awarded. The trial court so found, but the appellate court disagreed.
The reason? Code of Civil Procedure section 1033.5(b)(1) expressly prohibits recovery of expert witness fees as routine costs. That provision trumps others that allow discretionary awards of costs because, after all, the prohibition prevails over the general granting provisions.
So, the expert witness fees of $109,389.99 were stricken from the judgment based on the erroneous lower court ruling to the contrary.
BLOG UNDERVIEW—That is not to say that expert witness fees may not be awardable as “fees” under a contractual fees clause. See our June 23, 2010 post on the Fourth District, Division 3’s decision of Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC. for a discussion of a situation where expert fees were recoverable under a contractual clause (but under the more summary costs memorandum procedure, departing company with a sister appellate court in Carwash).