Alonzo v. Langridge
Filed 5/20/13 Alonzo v. Langridge CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Nevada)
----
ROBERT ALONZO et al.,
Plaintiffs and Appellants,
v.
JESS E.
LANGRIDGE,
Defendant and Respondent.
C068767
(Super. Ct. No. 76086)
This case
arises from a motor vehicle accident in which defendant Jess Langridge collided
with plaintiffs Robert and Ashley Alonzo.
The Alonzos rejected Langridge’s offer to settle the case, but then
recovered less than the amount of the settlement offer. The trial
court awarded Langridge his expert witness fees, including the fees of neurologist
Floyd Fortuin as charged by the company ExamWorks, which arranged for Dr.
Fortuin to serve as an expert witness for Langridge.
The Alonzos
appeal from the judgment. Their sole
contention is that the expert witness fees for Dr. Fortuin should be reduced to
$400 per hour, the amount he testified was his “normal fee,†from the $650 to
$750 per hour charged by ExamWorks.
Because we find the trial court did not abuse its discretion in setting
the amount of expert witness fees, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Robert
Alonzo, accompanied by his wife Ashley, was driving on Highway 49 when he
stopped to make a left turn. He was hit
from behind by Langridge. The Alonzos
sued Langridge for damages. In response
to a request for admissions, Langridge admitted that his negligence caused the
accident.
About a
month before trial, Langridge offered to compromise, pursuant to Code of Civil
Procedure section 998 (section 998). He
offered Robert $15,000 and Ashley $10,000.
The Alonzos did not accept either offer, but Ashley offered to settle
for $39,995.
Having
learned that the Alonzos had retained an expert witness, Dr. Blaha, Langridge
retained Dr. Fortuin to examine both Alonzos.
Dr. Fortuin was a board certified neurologist who for 40 years had been
a clinical professor of neurology at University
of California, San
Francisco, School
of Medicine. Dr. Fortuin was deposed and his deposition
was videotaped for use at trial. In his
deposition, Fortuin testified ExamWorks charged $750 per hour for his time, of
which he received $400: “That’s my normal fee.â€
After a
four-day trial, the jury returned a special verdict on
It found Robert had past medical expenses of $4,500 and past noneconomic
damages of $2,000, for total damages of $6,500.
It found Ashley had past
and past noneconomic damages of $3,000, for total damages of $10,550. Ashley’s medical expenses were reduced to
$2,119.75 pursuant to Hanif v. Housing
Authority (1988) 200 Cal.App.3d 635 (Hanif),
because her medical expenses were paid by Medi-Cal.
recovered less than Langridge’s section 998 offer.
Langridge
submitted a memorandum of costs
pursuant to section 998, subdivision (c)(1), seeking $18,083.78. The bulk of the costs were for depositions of
the various doctors and expert witness fees.
The Alonzos
moved to tax costs. They argued that Dr.
Fortuin’s fee should be limited to $400 per hour because that was what he
testified he charged for his work. They
argued costs should not include the extra fee charged by ExamWorks, an expert
witness provider service. They attached
a copy of ExamWorks billing, which showed Dr. Fortuin’s time was charged
at $750 per hour for depositions and $650 per hour for consultation,
examination, record review, and report preparation.
In
opposition to this motion to tax costs, Langridge submitted a declaration from
his counsel. In the declaration, counsel
explained the decision to retain an expert was made only after the Alonzos
designated an expert. Counsel declared
Dr. Fortuin’s ordinary and customary expert witness fees were $750 per
hour. He used ExamWorks as an
administrator and a litigant cannot retain his services as an expert without
arranging it through ExamWorks.
ExamWorks receives $350 per hour for its administrative role and
functions. Counsel declared this was a
common practice of many expert witnesses.
Without ExamWorks, Dr. Fortuin would have to hire staff and incur
overhead charges which would be added to his hourly rate. Fortuin’s rate of $750 per hour was
reasonable; the Alonzos’s expert charged $650 per hour and other physicians
that counsel had used as experts charged from $700 to $1,000 per hour.
The trial
court denied the motion to tax costs. It
found the rate of $750 per hour for an expert was reasonable and
customary. At the hearing on the motion,
the trial court explained that it accepted the statements of Langridge’s
counsel that without ExamWorks, Dr. Fortuin would have incurred expenses and
would have increased his fee. The court
found Dr. Fortuin’s fee was not unreasonable; the fee was customary for an
expert in his area of expertise.
DISCUSSION
I
Standard of Review
“We review
the trial court's award of costs under section 998 for abuse of
discretion. [Citation.] We will reverse the trial court's
determination only if we find that ‘in light of all the evidence viewed most
favorably in support of the trial court, no judge could have reasonably reached
a similar result.’ [Citation.]†(Bates
v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210,
221.) “[T]he trial court, having heard
the entire case, is in the best position to evaluate the importance of expert
witnesses at trial, and therefore is in the best position to evaluate the
reasonableness of the expert witness fees listed in the memorandum of costs. [Citation.]â€
(Adams
Cal.App.4th 1475, 1487.)
II
Award of Expert Witness Fees as Costs
“The
‘costs’ of a civil action consist of the expenses of litigation, usually
excluding attorney fees. Under the
common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is
determined entirely by statute. ‘It is
axiomatic that the right to recover costs is purely statutory, and, in the
absence of an authorizing statute, no costs can be recovered by either
party.’ [Citation.]†(Davis
v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439.)
The general
statutory rule, subject to exceptions, is that the prevailing party is entitled
to costs. “Except as otherwise expressly
provided by statute, a prevailing party is entitled as a matter of right to
recover costs in any action or proceeding.â€
(Code Civ. Proc., § 1032, subd. (b).)
One statute that expressly provides otherwise is section 998. If a plaintiff does not accept a defendant's
offer to compromise and then fails to secure an award at trial of greater value
than the offer, the plaintiff “shall pay the defendant’s costs from the time of
the offer†and the court may award the defendant “a reasonable sum to cover
costs of the services of expert witnesses, who are not regular employees of any
party, actually incurred and reasonably necessary in either, or both,
preparation for trial
. . ., or during trial . . ., of the case by the defendant.â€
(Section, § 998, subd. (c)(1).)
The amount
of expert witness fees is governed by statute.
“The costs for services of expert witnesses for trial under subdivisions
(c) and (d) shall not exceed those specified in Section 68092.5 of the
Government Code.†(Section 998, subd.
(h).) Expert witness fees are limited to
“the reasonable and customary hourly or daily fee for the actual time†spent by
the expert. (Gov. Code, § 68092.5, subd.
(a).) “[B]ecause the right to costs is
governed strictly by statute [citation] a court has no discretion to award
costs not statutorily authorized.†(
III
Analysis
The Alonzos
contend the trial court abused its discretion in awarding as costs the fees for
Dr. Fortuin charged by ExamWorks. They
contend the $650 to $750 hourly rate charged by ExamWorks was not Dr. Fortuin’s
customary fee because he testified his “normal fee†was $400 per hour. They argue that because the higher fee was
not authorized by statute, the trial court abused its discretion in awarding
it. (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [action
that transgresses the confines of the applicable principles of law is an abuse
of discretion].)
We disagree
with the Alonzos’s reasoning because Dr. Fortuin did not testify that $400 per
hour was his customary fee as an expert witness. Rather, he testified his fee as an expert
witness, through ExamWorks, was $750 per hour, of which he received $400. There was no
evidence that Fortuin routinely charged only $400 per hour as an expert
witness.
The trial
court relied on counsel’s declaration in awarding Langridge expert witness fees
based on the amount charged by ExamWorks for Dr. Fortuin’s services. That declaration explained that Dr. Fortuin’s
services as an expert witness could be procured only through ExamWorks, the use
of ExamWorks saved Dr. Fortuin the expense of staff and overhead which would
otherwise be added to his fee, and the use of this type of expert witness
provider service was common. Further,
the declaration provided evidence that the fee for Dr. Fortuin’s expert witness
services was reasonable. Plaintiffs’
expert charged $650 per hour and other physicians charged $700 to $1,000
per hour as expert witnesses. The
Alonzos do not dispute this evidence.
The trial
court did not abuse its discretion in awarding as costs the fees sought by
Langridge for the expert services of Dr. Fortuin.
DISPOSITION
The
judgment is affirmed. Langridge shall
recover costs on appeal. (Cal. Rules of Court, rule 278(a)(1) and
(2).)
DUARTE , J.
We concur:
ROBIE , Acting P.
J.
MURRAY , J.
this court reduced the trial court’s award of past medical expenses in a
personal injury action from the amount billed to the amount paid by
Medi-Cal. (Hanif, supra, 200 Cal.App.3d at p. 644.)
name="_ftn2" title="">[2] The amount Langridge sought as costs for Dr.
Fortuin’s services is less than the amount ExamWorks billed.
