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Thomas Van Alstyne v. Steven Carter et al

October 18, 2011


(Super. Ct. No. CVCS05-0969)

The opinion of the court was delivered by: Blease, J.

Alstyne v. Carter



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Thomas Van Alstyne appeals from a post-judgment order awarding defendants Steven and Debbie Carter $62,638.20 in expert witness fees pursuant to Code of Civil Procedure section 998.*fn1 He contends the trial court erred in "allocating to the objecting party the burden of proof to show that the fees were not reasonably incurred" and in admitting certain evidence, without which, "there is no evidence to support the [expert witness fee] award." We shall conclude that the trial court properly placed the burden on plaintiff to show that the fees were unnecessary or unreasonable, and that plaintiff utterly failed to meet his burden. We shall further conclude that plaintiff failed to establish he was prejudiced by the admission of the challenged evidence. Accordingly, we shall affirm the order awarding defendants $62,638.20 in expert witness fees.


As the prevailing party at trial, defendants filed a memorandum of costs seeking, among other things, expert witness fees in the amount of $63,820. (§ 998, subd. (c)(1).) By signing the memorandum of costs, defendants' attorney verified that "[t]o the best of my knowledge and belief, this memorandum of costs is correct and these costs were necessarily incurred in this case." (Cal. Rules of Ct., rule 3.1700(a)(1).) Plaintiff moved to tax the expert witness fees on the ground the section 998 offer to compromise was invalid. He also asserted that the fees sought for one of the experts, John Bahme, were unreasonable as Bahme testified at trial that he had been paid $3,000 to date and defendants' memorandum of costs sought $10,384.84 for Bahme's services, and the hourly rate for another expert, John Christofferson, was not specified in the memorandum of costs worksheet. In support of their opposition to the motion to tax the expert witness fees, defendants submitted a declaration attaching a copy of Bahme's invoice for $10,384.84.

The trial court found defendants' offer to compromise did "not comply with the requirement that there be separate offers to each plaintiff" and taxed the expert witness fees. The court did not address plaintiff's assertions regarding the reasonableness of Bahme's and Christofferson's fees. Plaintiff appealed from the judgment, and defendants cross-appealed the order taxing their expert witness fees. We affirmed the judgment, reversed the order taxing the expert witness fees, concluding "the trial court erred in finding [defendants'] section 998 offer was invalid and in taxing their expert witness fees," and remanded the matter to the trial court "for a determination of the reasonableness of the expert witness fees claimed by [defendants] -- an issue [plaintiff] raised in the trial court." (Van Alstyne v. Carter (Apr. 14, 2009, C056440) [unpub. opn.].)

After the matter was remanded, plaintiff attempted to serve defendants' attorney with a deposition subpoena for production of business records, seeking, among other things, invoices "for services performed or material supplied, by any expert witness on behalf of [defendants] . . . ." Defendants objected to the subpoena on various grounds, including that discovery had long since closed and the subpoena had not been properly served. Thereafter, plaintiff filed a "motion in limine" to exclude any such evidence at the hearing to determine the reasonableness of the expert witness fees. That same day, "[i]n an attempt to conclude this matter," defendants' attorney sent plaintiff a letter enclosing copies of invoices submitted by the experts listed in the memorandum of costs. Defendants redacted those portions of the invoices listing the actual work performed, asserting such information was covered by the attorney work product doctrine. Defendants attached a copy of counsel's letter along with the invoices to their status conference statement. Plaintiff objected to the introduction of the letter and invoices on hearsay grounds. (Evid. Code, § 1200.) In particular, he argued that, to be considered, such evidence must be accompanied by a written declaration. Nevertheless, in his "Reply Memorandum of Points and Authorities Re Hearing On Remand," plaintiff relied on the invoices to support his arguments that the expert witness fees included "items that [were] expressly disallowed as costs" and were otherwise unreasonable.

The trial court overruled plaintiff's objection to the invoices, and concluded the expert witness fees sought by defendants were reasonable. In doing so, the court indicated that it had reviewed the status conference statements submitted by defendants' counsel as well as the declaration and argument submitted by plaintiff.


"In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. 'If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.' [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. [Citation.]" (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)

While expert witness fees other than those ordered by the court are not ordinarily recoverable as costs (ยง 1033.5, subd. (b)(1)), section 998, subdivision (c)(1) provides that where, as here, an offer to compromise made pursuant to section 998 is not accepted "and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff . . . shall pay the defendant's costs," and in the court's discretion, "a reasonable sum to cover costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial or ...

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