Parties Can Indeed Negotiate Other Costs Besides Routine Costs As Being Recoverable In Their Contractual Agreements.
Porto Ramos-Pinto poster. René Vincent. ca 1925.
In Bel Vino, LLC v. Stuart, Case No. D069902 (4th Dist., Div. 1 Sept. 26, 2016) (unpublished), sellers of a winery (Stuart Cellars) in Temecula prevailed in a misrepresentation/contract suit against the winery purchasers, where there was a contractual fees clause stating that the prevailing party could recover costs, including “experts’ fees.” The lower court awarded $42,978.87 in expert witness fees based on this clause to the prevailing parties, with the appellate court rebuffing non-prevailing parties challenge to the award.
The challenge pitted the results in two decisions, Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 185 Cal.App.4th 1050 (2010) against that in Fairchild v. Park, 90 Cal.App.4th 919 (2001). Thrifty essentially determined that expert witness fees were recoverable as routine costs under a similar contractual provision, while Fairchild under dissimilar circumstances relied on Civil Code section 1717 reciprocity principles rather than the contractual fee entitlement in denying the expert fee award. The 4/1 DCA determined that Thrifty was a closer fit and also gave a nod to the notion that contracting parties could determine to shift routine costs in a way different than that specified in the general costs statutes.