Main Holding is that Winning Defendant Can Recoup Expert Fees Paid In Deposing Plaintiff’s Expert.
Acting Presiding Justice Bedsworth, on behalf of a 3-0 panel of the Fourth District, Division 3, authored a colorful opinion in the routine costs/section 998 area in Chaaban v. Wet Seal, Inc., Case No. G044718 (4th Dist., Div. 3 Jan. 31, 2012) (certified for partial publication), providing some new jurisprudence on the scope of expert fees recoverable by the defense and clarifying some specific items of routine costs that are recoverable. (After all, pretty good to pen a colorful opinion in what some might perceive as a fairly “dry” area of the law.)
Seals by beach. Charles Livingston Bull, artist. Library of Congress.
Plaintiff lost a wrongful termination jury trial, rejecting a defense section 998 that allowed defendant to recover costs under this important cost-shifting provision. She challenged a lot of the costs items sustained by the lower court, to no avail on appeal.
Plaintiff attacked an award of $2,500 in expert fees paid by the defense to plaintiff’s expert as not “reasonably necessary” for the defense’s trial preparation after the defense successfully excluded the expert testimony through a pre-trial motion in limine, an argument rejected because of its “certain surreal circularity”–how else could such a motion be successful unless the expert’s deposition was taken in the first place?
Certainly a reasonable costs item for trial preparation purposes, the panel ruled.
Then, in the issue likely giving rise to publication of the decision, the appellate court decided that CCP § 998(c)(1), unlike § 998(d), contains no limitation on the source of an expert, such that a trial court has discretion to award defendant’s expert fees, regardless of whose witness the expert is, in the event that the plaintiff fails to obtain a more favorable judgment or award, pursuant to the terms of § 998(c).
Also, the extra costs paid by the defense to expedite the deposition transcript were property found to be included as recoverable costs.
Next, the appellate court found that defendant’s expert flat fee of $2,000 for a half-day of trial testimony plus time charged separately for travel was recoverable. “ . . . expert witnesses routinely charge by the day or half-day for trial testimony; this practice compensates them for having to wait outside the courtroom before they testify, as frequently happens, and for arranging their work schedules to be sure they are available.” (Slip Opn., p. 8.)
The lower court did not err in allowing recovery of deposition transcript costs for a defense employee who did not testify at trial, because the statute does not hinge recovery only upon subsequent trial testimonial activity by a deponent. (Culbertson v. R.D. Werner Co., Inc., 190 Cal.App.3d 704, 711-712 (1987).)
Plaintiff also had to bear the costs of two days of depositions of her treating physician on the emotional distress issue, given that plaintiff suspended the first day of a deposition on this deponent based upon an expert payment dispute that had previously been resolved.
Even though most of the exhibits were presented to jurors via audiovisual equipment, that did not retard an award of fees for the “hard” photocopying of the exhibits, which were used in binders during the trial itself and were allowed in the jury room during deliberations.
Finally, “travel expenses to attend depositions” are expressly recoverable under CCP § 1033.5(a)(3). The appellate court ruled that payment of hotels, car rentals, gas, and parking fell within the ambit of this cost language.
Thanks to Justice “Beds” and his colleagues Justices O’Leary and Fybel for an opinion we would predict will get cited often in the costs/section 998 area.