These Expenses Needed To Be Pled And Proved, Neither Of Which Happened.
Although the discussion of this issue was not published, Tierney v. Javaid, Case No. A147221 (1st Dist., Div. 3 May 31, 2018) (partially published; costs discussion unpublished) is a stark reminder that a litigant may need to plead and prove certain litigation as expenses where they are not statutorily-recognized routine costs.
Specifically, the prevailing party sought $96,233.12 in nonstatutory expenses from the other side in the form of expert witness fees, mock trial expenses, jury consultant expenses, and photocopy costs. The trial judge allowed them, but this was deleted from the judgment as a matter of law by the appellate court.
The reason was that these expenses were neither pled nor proved as damages during trial. Given that they were “damages” under the governing settlement agreement, the failure to do so was fatal on appeal.