Division 7 Seems To Favor Trial Proof Method Over Post-Judgment Costs Hearing Approach in Unpublished Decision.
On June 23, 2010, we reported on Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, __ Cal.App.4th __, 2010 WL 2473831 (4th Dist., Div. 3 June 21, 2010), where a panel of the Fourth District, Division 3 (in a 3-0 opinion authored by Justice Moore) found that non-statutory expert witness fee costs did not have to be specifically pled and then proved up during trial even though the expert fees are explicitly included in the contract as recoverable costs. In doing so, the Thrifty Payless panel expressly parted company with contrary appellate authority exemplified by the “pleading and proof at trial” approach required in Carwash of America-PO LLC v. Windswept Ventures No. I, 97 Cal.App.4th 540, 544 (2002). Now, we apparently have the Second District, Division 7—albeit in an unpublished decision—adhering to the Carwash approach. Sometime in the future, the California Supreme Court likely may need to resolve the conflict.
Unzipped Apparel, LLC v. Apparel Distribution Services, LLC, Case No. B212775 (2d Dist., Div. 7 July 7, 2010) (unpublished) was one of three appellate decisions issued on July 7 in protracted litigation featuring an 11-week jury trial over the manufacture, distribution, and sale of Bongo jeans (a brand of jeans for junior girls).