Reason Was That Expense Was Expressly Provided For And Proper On Its Face.
This next unpublished decision, Van Alstyne v. Carter, Case No. C064004 (3d Dist. Oct. 18, 2011) (unpublished), is a nice complement to our recent posts of September 30 and October 19, 2011 on the recently published Second District decision in Adams v. Ford Motor Co.
In Van Alstyne, plaintiff was hit with $62,638.20 in expert witness fees pursuant to Code of Civil Procedure section 998 after the appellate court reversed and remanded when plaintiff initially challenged the offer as being invalid (which the lower court had initially concluded). On remand, the trial court allowed extended briefing and concluded the expert witness fees were allowable, prompting plaintiff’s appeal.
The Third District sustained the award based on the burden of proof allocation. If a statute expressly allows the particular item as costs and it appears proper on its face, the burden is on the objecting party (here, plaintiff/appellant) to show the costs were unnecessary or unreasonable. If the costs are not expressly allowable by the statute, the burden is the inverse, namely, on the costs claimant to show the charges were reasonable and necessary. (Foothill-De Anza Community College Dist. v. Emerich, 158 Cal.App.4th 11, 29 (2007).) In this instance, expert witness costs are allowable upon rejection of a 998 offer by statute (satisfying the first prong) and were facially proper (satisfying the second). This meant the burden of proof was on plaintiff objecting party, who did not surmount the burden of showing they were unnecessary/unreasonable.
Also, the appellate court allowed postage, phone calls, copies, and meals charged by the expert as allowable costs, finding nothing in CCP § 998(c)(1) excludes such expenses from being claimed.
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