The High Cost Of Unsuccessfully Seeking Justice: Appellate Court Chopped Some Expert Witness Fees; Plaintiffs’ Attorneys May Be On The Hook For The Costs.
Perez v. Dole Food Company, Inc., Case No. B277659 (2d Dist., Div. 5 Nov. 14, 2017) (unpublished) is an interesting fall-out from a wrongful death action which was dismissed with prejudice, resulting in a substantial costs award against plaintiffs which was upheld with one major reduction by the appellate court in an opinion authored by Acting Presiding Justice Kriegler.
The case involved a suit by plaintiffs for wrongful death and other claims against Dole for negligently hiring members of a paramilitary organization to provide security and protection services, with the paramilitary members allegedly murdering Columbian nationals (including plaintiffs’ decedents) on or near Dole banana plantations between 1994 and 2007. As would be expected, there were lots of foreign depositions with attendant travel, deposition court reporter, and security costs (the latter because some of the deponents may well have been mass murderers). Some of the plaintiffs had a retainer agreement with their attorneys by which attorneys assumed the responsibility for all expenses and costs, not looking for any return unless the clients obtained monetary compensation. This did not happen. After some spoliation and e-discovery contentious battles, plaintiffs ultimately voluntarily dismissed the entire action with prejudice.
The trial court then faced Dole’s request to recoup routine costs (although they were high in amount) to the tune of $493,809.55. The court below taxed some requested costs, entering a costs award of $479,418.23, determining that plaintiffs’ claimed indigence did not per se result in a categorical denial of costs and determining that the proof submitted on this issue was stale in nature. That prompted plaintiffs to appeal.
They got some relief, but ultimately, ultimately were hit with a costs award of $318,858.89.
Here is how the appellate court came out on the challenged costs:
- Forensic examination expert witness fees – on this one, the trial court did not expressly order the appointment of a forensic exam expert. Although one was ordered, the parties were free to choose their own, which was done and with the court not needing to provide any further intervention. Given that only a truly, partial expert witness will give rise to mandatory costs under CCP § 1033.5(a)(8), the $160,559.34 in Dole-requested expert witness fees had to be taxed. (Sanchez v. Bay Shores Medical Group, 75 Cal.App.4th 946, 949-950 (1999).)
- Courier/messenger fees – these are not allowed or not prohibited, but subject to the trial court’s discretion if they were reasonably necessary to the conduct of the litigation. Here, given the bulk of the documents and the trial judge’s insistence on obtaining a chambers-copy of papers (very standard in state court complex cases, as well as federal cases), it was not abuse of discretion to allow these costs to Dole.
- Translation fees – same as courier/messenger fees, subject to the discretion of the trial judge. No abuse of discretion given the nature of this case.
- Deposition costs – this one had some twists, because it involved foreign travel by court reporters and security costs of having guards at the depositions given the nature of the case. The appellate court found these costs justifiable, rejecting the argument that the CCP cost provisions “prohibit travel expenses for court reporters, videographers and interpreters, who by geographical necessity were required to travel internationally for each deposition” much less security costs associated with the foreign depositions.
That brought the Court of Appeal to the argument that plaintiffs’ indigence should have dictated in favor of denied/reduced costs in connection with Dole’s request. After observing that “California does not categorically exempt an unsuccessful indigent party from liability for an opposing party’s costs” (Chaparral Greens v. City of Chula Vista, 50 Cal.App.4th 1134, 1153 n. 21 (1996)), the appellate court agreed with the trial court’s conclusion that the submitted financial information was stale, as well as determining that plaintiffs’ attorneys were likely
the persons responsible for assuming costs based on the retainer agreement. (In reaching the latter conclusion, the appellate court cited to the L.A. County Bar Association Professional Responsibility and Ethics Comm. Formal Opinion No. 517 discussing indemnification of client’s litigation costs.)
BLOG OBSERVATION—With respect to the indigence issue, this case illustrates that litigants need to make sure they properly present updated proof of financial condition, with a somewhat similar result being reached in our recent November 15, 2017 post on Garau v. Torrance Unified School District.