Trial Court’s Second Chance To Prevailing Party Resulted In Costs Award.
Once a prevailing party establishes that a cost item is recoverable (listed in CCP § 1033.5 or by statute, such as expert witness fees when a CCP § 998 shifting is triggered), the amount of the costs awarded is usually a discretionary call by the trial judge. If the initial costs paperwork is deficient, the trial judge can reject the costs request outright or allow for supplemental paperwork to be filed in order to cure deficiencies. The prevailing party was given a second chance in Cazden v. Expinoza, Case No. B285907 (2d Dist., Div. 4 Dec. 20, 2018) (unpublished), and that litigant made the most of it.
Based on § 998 costs shifting, the prevailing party wanted $16,000 in expert witness costs. However, the litigant’s original papers were deficient because an attorney tried to authenticate and attest to the reasonableness of an expert’s work. (Again, this is similar to the problem confronted by recent courts in fee proceeding contexts, where clients or attorneys could not competently demonstrate work performed by others—see posts on Copenbarger [discussed in our October 20, 2018 and November 13, 2018 posts] and Eith [discussed in our December 19, 2018 post].) However, the trial judge allowed the costs claimant to file supplemental papers, with the litigant obviously having listened to the lower court’s directives.
The costs claimant filed a supplemental expert declaration with a spreadsheet, providing a road map for the work which was done. The trial judge granted $4,000 out of the $16,000 request, because claimant only paid expert a “capped” $4,000. The other side’s appeal did not change the result, given that it was not unreasonable for defense expert work to be “backloaded” toward the trial date and given that the supplemental information competently presented the expert work for the lower court’s consideration. Affirmed, rejecting 16 “oddities” (appellant’s term, not ours) in the process.
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