Judge Douglas W. Stern, Case 20STCV37224 2022-11-01 Tentative Ruling

Judge: Douglas W. Stern, Case: 20STCV37224, Date: 2022-11-01 Tentative Ruling

Case Number: 20STCV37224 Hearing Date: November 1, 2022 Dept: 68

Michael A. Prouty, et al. vs Endler Law APLC, et al., Case No. 20STCV37224

Tentative Ruling: Motion to Tax Costs

This action was a legal malpractice case. Plaintiff retained Defendant to provide legal services to him in a case known as Jarrah v. Prouty. Apparently unhappy with the outcome in that case, Plaintiff sued his former attorney. Defendant, in anticipation of having to prove that his conduct was not “malpractice,” retained an expert to testify on that topic in this second litigation. Plaintiff dismissed this malpractice case before trial and therefore there was no need to present that expert testimony at trial.

The attorney filed a Memorandum of Costs seeking to recover $6,200 for experts fees. That filing caused this Motion to Tax Costs, claiming that expert witness fees are not authorized by Code of Civil Procedure § 1033.5. (See C.C.P. § 1033.5(a)(8) allowing such fees when “ordered by the court” and (b)(1) expressly disallowing “fees of experts not ordered by the court.”)

Attorney points to the retainer agreement that he has with the Plaintiff and claims that the retainer agreement expressly authorized the recovery of expert witness fees. Pointing to Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050 attorney notes that expert witness fees may be recovered when the contract expressly authorizes that charge. Thus, Defendant claims “[t]he contract/retainer agreement between the parties, the very contract upon which Plaintiff filed this lawsuit on provides that Plaintiff would be and is legally responsible for the payment of all experts.”

It is true that Thrifty Payless did allow the recovery of expert witness fees when they were expressly mentioned in the parties’ contract.

“But where sophisticated parties knowingly and intentionally negotiate a broader standard into their contract—and particularly where, as here, that standard specifically includes “witness and expert fees”—the intent of the parties should be upheld by the court.” Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1066 [111 Cal.Rptr.3d 173, 186].

The Retainer Agreement entered into to provide services to Plaintiff in Jarrah v. Prouty provides:

“COSTS AND OTHER CHARGES.

In General. In the event of a jury trial, Attorney will incur various costs and expenses in performing legal services under this Agreement, beyond the expected normal fees for attorney’s services. You agree to pay for those costs and expenses in addition to the hourly fees spent by attorney. The costs and expenses commonly include process servers' fees, fees fixed by law or assessed by courts and other agencies, court reporters' fees, long distance telephone calls, messenger and other delivery fees, postage, parking and other local travel expenses, photocopying and other reproduction costs, clerical staff overtime, word processing charges, charges for computer time and other similar items. Except for the items listed on the Rate Schedule, all costs and expenses will be charged at Attorney's cost.

Experts, Consultants and Investigators. To aid in the preparation or presentation of your case, it may become necessary to hire expert witnesses, consultants or investigators. Attorney will not hire such persons unless you agree to pay their fees and charges. Attorney will select any expert witnesses, consultants or investigators to be hired.” (Bold and underlining added.)

Plaintiff correctly notes that this retainer agreement related to the expert witness fees that would be incurred by the attorney should he hire experts to for the case he was handling for Plaintiff, Jarrah v. Prouty. That can not be interpreted as an agreement that should the attorney and client end up in a lawsuit based on the performance of the attorneys services in Jarrah v. Prouty, that in this second lawsuit between the client and attorney expert witness fees would be paid by the client for the attorney’s expert witness.

There is no contract provision agreeing to the payment of expert witness fees for the present dispute. Motion to Tax Costs in the amount of $6,200 is GRANTED.