When a plaintiff fails to obtain a result more favorable than the defendant's statutory offer to compromise, the trial court has the discretion to order plaintiff to reimburse defendant for fees paid to take the deposition of the plaintiff's expert, even if that expert does not testify at trial, said the Fourth District Court of Appeal in Chaaban v. Wet Seal, Inc. (Jan. 31, 2012, G044718), __ Cal.App.4th __ [2012 DJDAR 1307].
The jury returned a verdict in favor of defendant, which filed a memorandum of costs. Plaintiff's motion to tax costs was denied, except as to a small amount of travel expenses. On appeal, plaintiff contended that it was error to allow fees paid by defendant to plaintiff's expert for the time spent testifying at his deposition, contending that the costs were not authorized by Code of Civil Procedure §998. First, plaintiff argued that because the court granted defendant's in limine motion to exclude the expert's testimony, and the expert did not testify at trial, the costs were not "reasonably necessary" to prepare for trial. "This argument has a certain surreal circularity to it," said the court. "How, one might ask, could Wet Seal move to exclude Locker's testimony unless it knew what that testimony would be? In order to find out, it had to take his deposition."
Second, plaintiff contended that §998(c)(1) allows recovery of costs incurred for "the services of expert witnesses," and is limited to recovery of costs expended on a party's own experts. The court concluded that the policy behind section §998 supports the principle that the court has the discretion to award witness fees regardless of whose witness the expert is. The appellate court also upheld the trial court's award of the costs of an expedited transcript of the deposition, because motions in limine had to be exchanged the next day.
In its opinion the court also approved the trial court's awarding a defense expert's fee of $2,000 for one-half day, even though the witness testified for only one hour, the expert's travel time, the cost of paper copies of trial exhibits, and attorney travel expenses to out-of-town depositions, including plane tickets, hotels, car rentals, gas and parking.
Plaintiff also asked the appellate court to find that the trial court erred in allowing deposition costs for a witness who was identified by plaintiff as a potential witness and who was on plaintiff's witness list. Plaintiff called the witness to testify at trial, but was unsuccessful in introducing certain time records during her testimony. As a result, plaintiff claimed that the witness' deposition was unnecessary. Showing remarkable restraint, the court of appeal said simply that "[t]he recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial," and found that the court did not abuse its discretion in awarding the deposition costs to defendant.
Perhaps the court was saving itself for the unpublished portion of the decision, which addressed plaintiff's counsel's conduct during the trial. "During the trial, Chaaban's lead counsel severely tested both the patience and the circulatory system of the judge," said the court. During the trial the court had to instruct counsel "in basis procedures, such as formulating questions that did not violate the rules of evidence, scheduling witnesses and not volunteering potentially prejudicial comments in front of the jury." On the last day of trial, counsel filed a motion to disqualify the judge, which was reviewed and denied by a Los Angeles County Superior Court Judge. Counsel filed a motion for new trial, again accusing the judge of misconduct, but the motion was denied because it was filed untimely.
"Counsel has continued this campaign in our court.... In this misguided effort to blame her failure on chimeric prejudice, counsel has shown a disregard for the rules of appellate practice paralleling her disregard for the rules of evidence." But although the court noted that counsel included in the appendix documents that were unnecessary to the issue before it on appeal, concluding that they "were included simply to disparage the trial judge and not for their bearing on the motion to tax costs," the court stopped short of imposing sanctions.