No Need to Provide Declarations From Expert Witness Fee In Support Of Expense Request Under CCP § 998.
What happened in Nations Title Co. of Calif. v. Security Union Title Ins. Co, Case Nos. B250490/B253840 (2d Dist., Div. 3 Jan. 25, 2016) (unpublished), was that defendants won a jury verdict on a breach of fiduciary duty and intentional interference with prospective relations claims. The trial judge denied fee recovery to the defense based on Civil Code section 1717 and California’s Uniform Trade Secret Act (Civil Code section 3426.4), as well as denying significant expert witness fees under CCP § 998.
The denial of fees was affirmed, but the denial of expert witness fees was reversed.
Section 1717 fees were properly denied because the fees clause only related to arbitration, which was not the adjudicative venue. CUTSA fees were properly denied because there was no evidence that plaintiff had a reasonable belief that the claim was other than meritorious, such that the subjective prong of fee recovery was not satisfied. However, on the 998 expert witness cost-shifting issue, the trial judge denied expert witness fees based on the lack of substantiating evidence from the expert versus counsel’s declaration on expert witness fees. The appellate court found that wholesale denial on this basis was prejudicial, with counsel’s proof being enough under the circumstances.