Metropolitan News-Enterprise


Wednesday, April 10, 2002


Page 3


Expert Fees Recoverable Under Contract Must Be Proven at Trial—C.A.


By a MetNews Staff Writer


A prevailing defendant seeking to recover expert witness fees pursuant to a clause in its contract must plead that right and prove it at trial, rather than waiting to seek it as an item of costs, the Third District Court of Appeal ruled yesterday.

The justices affirmed Sacramento Superior Court Judge Joe Gray’s denial of more than $73,000 in expert fees sought by the prevailing defendants in a suit over a failed attempt to sell two carwashes.

Gray granted summary judgment in favor of the defendants, holding that the plaintiff’s interpretation of the price to be paid for the carwashes was indisputably incorrect.

The defendants moved for attorney fees and expert witness fees under a clause in the parties’ agreement that read: “In the event any dispute between Buyer and Seller should result in litigation, the prevailing party shall be reimbursed for all reasonable costs incurred in connection with such litigation, including, without limitation, reasonable attorneys’ fees.”

Gray awarded more than $185,000 in attorney fees, but denied the request for expert witness fees. The underlying judgment was subsequently affirmed in an unpublished opinion.

The trial judge was correct in denying expert witness fees sought by post-judgment motion, Justice Harry Hull wrote for the Court of Appeal.

Hull cited Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, which held that a prevailing plaintiff could not recover expert witness fees by post-judgment motion. There is no reason to apply a different rule when the defendant prevails, Hull said.

There is a distinction, the justice said, between attorney fees and expert witness fees, the jurist said.

Attorney fees, when provided for by contract, may be recovered after judgment under Code of Civil Procedure Sec. 1033.5(a), Hull explained, whereas Sec. 1033.5(b)(1) expressly precludes “[f]ees of experts not ordered by the court” from being recovered after judgment.

Hull acknowledged Bussey v. Affleck (1990) 225 Cal.App.3d 1162, which held that when recovery of expert witness fees is authorized by contract, Sec. 1033.5(b)(1) does not apply. But he noted that Bussey has been expressly rejected by five Court of Appeal panels in published decisions, and concluded that its holding is inconsistent with legislative intent.

The case is Carwash of America-PO LLC v. Windswept Ventures No. I, C035179.


Copyright 2002, Metropolitan News Company