Trial Court Erroneously Allowed Them Under CCP § 998, But Parking Lot Contract Clause Needed To Be Restudied On Remand To See If Operator Obtains Expert Witness Fees.
In PCAM, LLC v. Bally Total Fitness of California, Inc., Case No, B277637/B285308 (2d Dist., Div. 8 May 28, 2019) (unpublished), parking lot owner, operator, and lessee got entangled in litigation over responsibility for personal injury settlements, with indemnification and fees clauses in the parking lot contract figuring into the mix. Operator prevailed against lessee, with the lower court awarding $253,808.55 in fees and $49,925 in expert witness fees based on a rejected CCP § 998 offer.
The 2/8 DCA affirmed the fee award, finding that the billings submitted were admissible and that the trial court did not abuse its discretion in not apportioning for work associated on different claims. However, the expert fee award had to be reversed and remanded. The lower court decided that pre-offer expert expenses were recoverable under section 998, but that was legal error—the statute specifies only post-offer expenses can be recouped. Nonetheless, the parking lot contract had a clause allowing the prevailing party “to receive attorney fees, costs and expenses from the other party.” The appellate court believed the fair thing to do was remand for purposes of determining if “expenses” included expert witness fees given that the lower court did not focus on this contract interpretation issue.
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