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TRIAL CALL/TRIAL MOTIONS CALENDAR - DEPT 19
FRIDAY, OCTOBER 31, 2014 - Judge Arthur A. Wick
3055 Cleveland Avenue, Santa Rosa, CA 95403
The following cases will be called on the Civil Trial Call Calendar. All trial counsel are required to appear in Courtroom 19 located at 3055 Cleveland Ave., at 8:30 a.m before the Honorable Arthur Wick for trial assignment.
Telephonic appearances are not permitted. Cases not assigned for trial will be placed on trailing status for the following week. Cases not reached by the following Friday, will be reset and given a priority status.
SCV-253508 MINICK v. PETE'S HENNY PENNY
This is on calendar for the continued hearing on the Plaintiffs’ motion for attorney and expert witness fees. At the previous hearing, the court sought additional information regarding the number of hours expended on the case. Further, the court sought additional briefing on the issue of expert fees in light of the Trustees’ citation to Ripley v. Pappadopoulos [(1994) 23 Cal.App.4th 1616 .]
The court has reviewed the additional briefing by the parties on this issue. A direct answer to the question of whether parties may provide for an entitlement to expert fees through contract is complicated by competing and seemingly contradictory rulings in Bussey v. Affleck [(1990) 225 Cal.App.3d 1162] and Ripley. As the parties are no doubt aware, Code of Civil Procedure section 1033.5, subdivision (a) provides an exclusive list of these “allowable costs,” including expert witness fees only if the expert was ordered by the court. ( Id., subd. (a)(8).) Subdivision (b) expressly disallows the recovery of other expert witness fees as an allowable cost. ( Id., subd.(b)(1).)
The court in Bussey, held that a prevailing party could recover as “attorney's fees” all the expenses ordinarily incurred by counsel and billed to the client, including expert witness fees. ( Bussey at p. 1166.) Ripley expressly rejected the Bussey approach, finding: “The Legislature has reserved to itself the power to determine selectively the types of actions and circumstances in which expert witness fees should be recoverable as costs and such fees may not otherwise be recovered in a cost award.” ( Ripley at p. 1625.) However, in obiter dicta, stated that “assuming expert witness fees may be recovered under a contractual provision” … “they must be specially pleaded and proven at trial rather than included in a memorandum of costs….” ( Id. at p. 1627 accord Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 490-492.)
The approach in Ripley has been followed in the vast majority of cases that have dealt with this issue. (See Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341–1342; Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 551; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 876.) The Bussey approach was followed in Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC [(2010) 185 Cal.App.4th 1050.] (See also Fairchild v. Park (2001) 90 Cal.App.4th 919 [holding expert witness fees are never available under a contractual attorney fees provision, even if the provision itself expressly grants such fees].)
Here, the court is confronted with a general attorney fees clause which also includes “costs.” (Compare Thrifty Payless, supra, 185 Cal.App.4th 1050 [contract specifically mentioned expert witness fees.].) The weight of the authority discussed above favors the Ripley approach which would require the Plaintiffs to have specifically plead and prove entitlement to the fees, and the actual amount of fees. (See First Nationwide, supra, 77 Cal.App.4th at p. 879 [“the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion”]; Hsu, supra, 126 Cal.App.4th at p. 1341; Ripley, supra, 23 Cal.App.4th at p. 1627 & fn. 18.) It is undisputed that the Plaintiffs did not plead or prove the expert fee issue under the contract. As a result, the court is inclined to deny the motion as to expert witness fees (and to also grant the Trustees’ motion to tax which deal with the same issue that is currently under submission).