However, Denial Of Expert Witness Fees As Costs For Non-Court Ordered Witness Was No Abuse Of Discretion.
In California Open Lands v. Butte County Dept. of Public Works, Case No. C097297 (3d Dist. Mar. 4, 2024) (unpublished), plaintiff reached a settlement with a county government in a conservation easement case with Clean Air Act issues. Nonprofit plaintiff moved for $766,078 in private attorney general fees and $59,325.07 in costs, with hourly rates based on San Francisco rather than Butte County rates. The lower court partially granted the fee request, but used lower Butte County rates because it did not deem the matter complex, reduced fees by 30% based on perceived pre-lawsuit settlement proposals by the municipal entity, and did not award work on reply papers for the “fees on fees” request. It also denied the costs request, most of which encompassed expert witness work for experts neither authorized by the court nor subject to CCP § 998 shifting.
The appellate court reversed and remanded the fee award on three grounds: (1) nonprofit did produce evidence that it could not retain local counsel versed in conservation easement and Clean Air Act matters, which needed a revisit for whether higher out-of-market rates were justified; (2) the 30% reduction for settlement efforts had no evidentiary support in the record; and (3) reply paper work should be considered in awarding attorney’s fees on the “fee on fee” request.
With respect to the expert fee costs denial, those determinations were affirmed. Nothing showed that one of the experts was ordered by the court, so it was not a proper costs item. Another expert was a consulting expert, with nothing cited to show this was a proper cost. Finally, nothing in the routine cost statute allowed staff costs to be awarded for the work of an executive director of the nonprofit to enforce the conservation easement.
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