Deposition Costs Disallowed Where No Detail Provided.
The next case from our local Santa Ana appellate court teaches two lessons: (1) prevailing parties filing costs memoranda need to utilize the entire Judicial Council forms, including the worksheets which have more detail that just the initial summary page; and (2) Civil Code section 1717 fee awards have to be reasonable in nature, with unnecessary work or small outcomes justifying reductions (sometimes very severe) depending on the circumstances of the case.
In Andersen v. Pacific Asian Enterprises, Inc., Case No. G043957 et al. (4th Dist., Div. 3 Jan. 13, 2012) (unpublished), plaintiff did prevail on a contract warranty/fraud lawsuit against defendant involving a cruising yacht. Plaintiff was awarded $25,770 for breach of contract/warranty and $18,000 for loss of use on the fraud claim (with plaintiff requesting $218,000 for loss of use), or a total judgment of $43,770. The trial court taxed $45,503.75 out of a requested $49,503.76 in deposition costs, and subsequently awarded $80,000 in contractual attorney’s fees (based on a fees clause in the purchase agreement) out of a requested $560,236.47. (That’s right, there is no typo here.)
Defendant’s appeal of the merits, cost award, and fee award did not prevail.
With respect to the deposition costs reduction, plaintiff only attached the initial Judicial Council summary with an omnibus line item total, failing to utilize the worksheet (which asks for more detail, such as the deponent, date and other items) or failing to attach deposition invoices to the costs memo. That was fatal on appeal, given there was no explanation of how the costs were incurred. It was plaintiff’s burden to establish necessity and reasonableness of the costs, and that was not effectively done here.
The lower court awarded lowered fees based upon the request being “wildly out of proportion to the recovery” and plaintiff not providing a methodology to award higher fees given the outcome far below what was demanded during the case. The appellate court sustained this result, bolstered by the trial court’s conclusion that the case was a fairly routine breach of warranty case (not highly complex). (Cf. EnPalm, LLC v. Teitler, 162 Cal.App.4th 770, 774-775 (2008) [reviewed in our May 12, 2008 post].)
Justice Fybel was the author of Andersen on behalf of a 3-0 panel.