Chaaban v. Wet Seal, Inc.
136 Cal. Rptr. 3d 607
Cal. Ct. App.2012Background
- Chaaban sued Wet Seal for wrongful termination in violation of public policy; Wet Seal prevailed at trial.
- Wet Seal sought costs of $29,770.67; Chaaban challenged several items, and the trial court largely denied the motion to tax costs except a small travel amount.
- The court addressed costs for expert and deposition testimony, including fees for Miles Locker (Chaaban’s expert) and Francine Kulick (Wet Seal’s expert).
- Locker's deposition occurred Feb. 10, 2010 with an expedited transcript; Chaaban argued the deposition and expediting costs were not recoverable.
- Kulick claimed $6,740 for preparation, trial testimony, and travel; the court allowed the full amount.
- Other cost items included depositions of Lorena Ochoa and Summer Myers, two-day deposition of Dr. Adel Boutros, jury fees, court reporter fees, photocopies of exhibits, and travel costs; Chaaban opposed several categories but the court allowed most of them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CCP 998(c)(1) permits recovery of expert fees paid by the defendant to an expert who did not testify. | Chaaban argues Wet Seal cannot recover Locker’s fees since Locker did not testify at trial. | Wet Seal contends 998(c)(1) covers services of expert witnesses regardless of who funds or the witness’s trial status. | Yes; 998(c)(1) authorizes recovery of expert fees regardless of witness status. |
| Whether Wet Seal may recover Kulick’s expert fees, including a flat trial-time charge and travel, under discretionary cost rules. | Chaaban challenges the reasonableness and recoverability of Kulick’s charges. | Wet Seal contends the trial court has discretion to award reasonable expert fees including trial and travel time. | Yes; trial court’s discretion to determine reasonableness and recoverability was not abused. |
| Whether deposition costs for Ochoa, Myers, and Boutros were reasonably necessary costs recoverable under CCP 1033.5 (a)(3) and related provisions. | Chaaban argues some deposition costs were inappropriate or duplicative. | Wet Seal asserts these deposition costs were reasonably necessary to the conduct of the litigation. | Yes; deposition costs were properly recoverable where reasonably necessary, even if witnesses did not testify at trial. |
| Whether travel and related deposition costs (e.g., expediting transcripts) were recoverable as travel costs under CCP 1033.5. | Chaaban objects to certain travel-related charges. | Wet Seal justified travel costs as reasonably necessary to depositions. | Yes; travel and expedited transcript costs were properly awarded where supported by evidence of necessity. |
Key Cases Cited
- Culbertson v. R. D. Werner Co., Inc., 190 Cal.App.3d 704 (Cal. Ct. App. 1987) (expert fees recoverable under 998 even if not tested at trial; settlement incentive)
- Stiles v. Estate of Ryan, 173 Cal.App.3d 1057 (Cal. Ct. App. 1985) (fees for experts who testified on conceded issue recoverable as costs)
- Evers v. Cornelson, 163 Cal.App.3d 310 (Cal. Ct. App. 1984) (fee of potential expert witness recoverable as cost even if not called)
- Heller v. Pillsbury Madison & Sutro, 50 Cal.App.4th 1367 (Cal. Ct. App. 1996) (discretionary nature of expert fees under 998; not as a matter of right)
- Bank of San Pedro v. Superior Court, 3 Cal.4th 797 (Cal. 1992) (policy to encourage settlement; stick and carrot concept under 998)
- Acosta v. SI Corp., 129 Cal.App.4th 1370 (Cal. Ct. App. 2005) (statutory interpretation; costs allowed under 1032 and 1033.5 with 998 supplements)
- Jewel v. Bank of America, 220 Cal.App.3d 934 (Cal. Ct. App. 1990) (standard for reviewing trial court’s cost rulings; substantial evidence)
- Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4th 985 (Cal. 1998) (§998 scope; expert fees allowed in certain circumstances)
- People v. Smith, 33 Cal.3d 596 (Cal. 1983) (transcript considerations in appellate review)