IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
October 18, 2011
THOMAS VAN ALSTYNE, PLAINTIFF AND APPELLANT,
STEVEN CARTER ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. CVCS05-0969)
The opinion of the court was delivered by: Blease, J.
Alstyne v. Carter
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
FACTUAL AND PROCEDURAL BACKGROUND
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 (§ 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 arbitration, or during trial or arbitration, of the case by the defendant." Accordingly, in this case, expert witness fees are expressly allowable by statute.
We next consider whether the fees appeared proper on their face. (Foothill-De Anza Community College Dist. v. Emerich, supra, 158 Cal.App.4th at p. 29.) A verified memorandum of costs is prima facie evidence of the propriety of the costs claimed, i.e. that they were necessarily incurred in this case. (Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 910.) A party can overcome the prima facie evidence by establishing that a charge was excessive or not actually incurred. (See, e.g., Johnson v. Ford Motor Co. (1970) 9 Cal.App.3d 304, 309.) As mentioned above, defendants' memorandum of costs, which included the expert witness fees, was verified by defendants' counsel and was accompanied by a worksheet that set forth the hourly rate and total fee sought for three of the experts: Robert Fagerness ($185/hr - $4,197.50),*fn2 John Bahme ($165/hr - $10,384.84), and Stephen Carlton/GeoTrans ($190/hr - $36,737.87). The worksheet did not include an hourly rate for John Christofferson/GDA Engineering; it simply listed the total fee sought ($12,499.79). On this record, the trial court reasonably could conclude that the fees appeared proper on their face. Accordingly, the burden was on plaintiff to show the fees were unnecessary or unreasonable.*fn3 (Foothill-De Anza Community College Dist. v. Emerich, supra, 158 Cal.App.4th at p. 29.) As we shall explain, plaintiff utterly failed to meet his burden.
Although plaintiff contends the trial court abused its discretion in considering the invoices, he relies almost exclusively on them in attempting to show the expert witness fees were improper and unreasonable. We need not determine whether the trial court abused its discretion in considering the invoices because plaintiff has not even attempted to show he was prejudiced by the trial court's consideration of them, and as we shall explain below, there was ample evidence to support the trial court's reasonableness finding absent the invoices. (See Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 ["Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred."].)
The same is true with respect to defendants' counsel's alleged unsworn testimony. Plaintiff asserts the trial court abused its discretion in allowing defendants' attorney to explain Christofferson's fee after plaintiff pointed out Christofferson's hourly rate was omitted from the memorandum of costs worksheet.*fn4 However, plaintiff does not explain how he was prejudiced by the attorney's statements, and, as explained below, the attorney's statements were not essential to the trial court's finding. (See Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833.) In addition, plaintiff failed to preserve the issue on appeal by failing to secure a ruling on his objection to the attorney's statements. (People v. Hill (1992) 3 Cal.App.4th 16, 43-44, overruled on other grounds by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5; see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 389, p. 482.)
Even without the invoices or defendants' attorney's statements, there is ample evidence in the record to support the trial court's finding that the fees were reasonable -- namely, the verified memorandum of costs and the accompanying worksheet. (Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at p. 910.)
Relying on the invoices he contends should have been excluded, plaintiff argues the expert witness fees included improper charges for postage, telephone calls, copies, and meals. In support of his assertion, he cites to section 1033.5, subdivision (b)(3) which provides that "[p]ostage, telephone and photocopying charges, except for exhibits" are not allowable as costs. Section 998, subdivision (c)(1), which authorizes the award of expert witness fees, vests the trial court with discretion to award "a reasonable sum to cover costs of the services of expert witnesses . . . ." Notably, that subdivision does not exclude charges for postage, telephone calls, copies or meals. That is not to say that excessive charges for such items are allowable. Plaintiff, however, does not contend the challenged charges were excessive, nor does the record support such a finding. The trial court did not err in including such charges in the expert witness fee award.
Plaintiff's assertion that the memorandum of costs included charges for services rendered by GeoTrans after the trial was completed is frivolous. Having compared the invoices submitted by GeoTrans with the amount listed in the memorandum of costs, it is clear the amount in the memorandum of costs does not include charges for services rendered after trial was completed.
Plaintiff also contends that "the invoices submitted were for overlapping time periods" and cites to the invoices themselves. No further explanation is offered. The trial court rejected plaintiff's contention and, having reviewed the invoices, we discern no error.
Plaintiff's suggestion that one of the invoices "appears to have been fabricated" because it was in a different format is pure speculation.
Finally, plaintiff was given ample opportunity to establish the expert witness fees were unreasonable. Among other things, on remand, the trial court permitted him to greatly expand upon the arguments contained in his initial motion to tax costs. Contrary to plaintiff's assertion, it appears the trial court did consider his declarations. Moreover, he was able to make the arguments contained in his declarations at the hearing to determine whether the fees were reasonable. While plaintiff complains that the invoices were redacted, he fails to submit any argument addressing defendants' claim that such information is privileged. Accordingly, his assertion that he was denied "the most basic procedural guarantees of the 14th Amendment" lacks merit.
The post-judgment order awarding the Carters $62,638.20 in expert witness fees is affirmed. The Carters shall recover their costs on appeal. (Cal. Rules of Ct., rule 8.278(a)(1)(2).)
We concur: RAYE, P. J. DUARTE, J.