Opinion
Three insurance sales representatives employed by defendant California State Automobile Association (CSAA) appeal from a judgment *766 dismissing their breach-of-contract complaint against their employer, and from a postjudgment order denying their motion to tax costs. The judgment followed a ruling by the trial court excluding all evidence of CSAA’s alleged promises to compensate appellants on a par with “industry standards” and to provide them with adequate “logistical support.”
For reasons other than those relied on by the trial court, we find that the motion in limine was properly granted and will affirm the judgment. We also conclude that the court erred in refusing to tax costs and will reverse that order.
Background
Plaintiffs-appellants Steve Ladas, George Demiris, and Eugene Choppelas are employed as insurance sales representatives for CSAA. When they were hired in the 1960’s, each of the appellants signed a two-page “Solicitor’s Appointment Agreement” (solicitor’s agreement). The agreement promises to pay appellants commissions for new and renewal business “in accordance with the Sales Representative Compensation Plan” (comp plan) promulgated by CSAA, which “reserves the right to make such changes in commission rates and in the aforementioned Compensation Plan as may from time to time be deemed advisable.”
Initially, CSAA paid its sales representatives commissions on a straight percentage-of-premiums basis. In 1961 the company converted to a more complicated “unit value” system, which has bеen in place continuously since then. Under the unit value system, various auto and homeowner policies are assigned a number of units. The total number of units is then multiplied by an assigned unit value (a dollar amount) to yield the commission earned on that policy. The unit value system, along with tables for computing commissions, was set forth in the comp plan, which CSAA revised from time to time over the years. Under the heading “Compensation” the more recent comp plans stated: “The compensation program set forth herein is all inclusive and no additional compensation will normally be granted for automobile use or other business expenses.”
The comp plan was revised on several occasions during appellants’ employment. From 1961 to 1986, CSAA raised the unit value ratio several times. During this time, according to appellants, their level of compensation kept pace with those of sales representatives working for other insurance companies. Beginning in 1987, however, appellants assert that comp plan rates failed to maintain their commission income at levels comparable to the rest of the industry. At the same time, they claim, CSAA stopped providing *767 them with adequate “logistical support,” described as including such things as telephone systems, administrative, clerical and secretarial assistance, and office space.
On August 23, 1989, appellants filed this action for breach of contract. Among other things, the complaint alleges that CSAA breached appellants’ employment contract, which was “partially оral and partially written,” by failing to fulfill its contractual obligations to (1) compensate them in parity with other similarly situated insurance sales agents in the industry, and (2) provide them with adequate logistical support and working conditions.
Prior to trial, CSAA moved for summary judgment and obtained an order partially adjudicating issues in its favor. By the time of trial, appellants’ action was pared down to the two breach of contract claims noted above and a cause of action for wrongful termination.
Before empanelment of the jury CSAA moved to exclude, on the basis of the parol evidence rule, all evidence offered by appellants to prove their breach of contract claims. The court agreed to conduct a full evidentiary hearing on the motion.
After a three-day hearing at which witnesses were called and evidence submitted, the court concluded that appellant’s employment contract, consisting of the solicitor’s agreement and the 1986 comp plan, was an integrated agreement and that thе extrinsic evidence offered by appellants was not admissible to prove their parity claim. The court also barred evidence of appellants’ claim for inadequate logistical support on the ground that it had been adjudicated adversely to them in the summary adjudication order. Finally the court ruled that appellants’ wrongful termination claim was nonjusticiable because that they were still employed by CSAA. 1 The court issued an order granting the motion in limine and entered judgment in favor of CSAA. This appeal follows.
Appeal
I
Parity Claim
Appellants’ central claim is that, beginning in 1987, CSAA breached an alleged contractual obligation requiring it to compensate them at levels *768 “comparable” to what sales agents were earning at other insurance companies. In the words of the complaint, CSAA promised that it would “pay plaintiffs at the same level as other similarly situated insurance sales representatives so that plaintiffs can maintain a compensation parity in keeping with industry standards.” (Italics added.)
At the in limine hearing appellants did not dispute that neither the solicitor’s agreement nor any of the compensation plans promulgated by CSAA refers to “parity,” “industry standards” or similar terms. Instead, they contended thаt such promises were contained in various oral and written material issued by CSAA during their employment tenure, and therefore should be deemed part of the contract.
Extrinsic Evidence
Because of CSAA’s motion to exclude all evidence of any promise to pay “parity” under the parol evidence rule, all of the evidence which appellants claimed supported such a promise was produced at the in limine hearing. They offered four kinds of evidence;
1. Employee Handbooks.
Employee handbooks during the period 1961 to 1968 included the statement “It is our aim to keep salaries equal to or higher than average salary rates for comparable work in each locality.” From 1968 to 1984 the handbook stated under Employee Policies: “It is the policy of the Association to: . . . 2. Provide employment at a wage which compares favorably with prevailing community rates for similar work under comparable conditions requiring like responsibility, experience, effort and skill.” Beginning in 1985, CSAA eliminated all references to comparable wages or prevailing rates. Moreover, the 1986 handbook, which was in effect at the inception of the alleged breach of contract, contains an announcement in small print that “All previous editions are obsolete.”
2. Pay Increase Announcements.
In 1977, 1978, and 1979, CSAA issued announcements of pay increases which referred to the company’s “program” or “practice” of periodically adjusting schedules to maintain salaries or salary ranges commensurate with comparable types of organizations.
3. Internal CSAA Memoranda.
In the 1960’s and 1970’s, CSAA management met with sales agent representatives and often circulated the minutes of such meetings. In the *769 minutes of the August 7, 1969, meeting a company official states that it is CSAA’s “practice” to periodically review the salary and income structure of all employees and make adjustments when justified by studies of income levels at comparable industries. In the minutes of a September 3, 1970, meeting a management representative explained that it was the company’s “objective” that adjusters and clerical staff earn “as much if not more than adjusters employed by our competitors.”
4. Oral Statements.
Aрpellants Ladas and Choppelas testified that during their careers, their supervisors told them from time to time that they were getting paid as much as agents from State Farm, Allstate, and Farmers for similar work.
Discussion
The trial court ruled all of the foregoing evidence inadmissible on the ground that appellants’ written employment contract, which consisted of the solicitor’s agreement and the 1986 comp plan, was integrated and not susceptible of an interpretation that CSAA sales representatives were to be compensated “at parity,” according to “industry standards” or by any method other than that set forth in the comp plan.
Appellants attack this ruling on several grounds. They argue that the comp plan and solicitor’s agreement are not integrated documents, nor the sole evidence of their contract. They contend that the sentence in the solicitor’s agreement granting CSAA the right to change commission rates “as may from time to time be deemed advisable” is ambiguous and amenable to a construction that CSAA would consider factors such as wage parity and cost of living when making adjustments to the comp plan. Finally, they urge that their evidence could be considered as a subsequent modification of the employment contract, and thus not subject to application of the parol evidence rule at all.
The fact that the trial court based its decision on the parol evidence rule does not restrict our inquiry. We review the judgment, not the reasoning of the court below.
(United Pacific Ins. Co.
v.
Hanover Ins. Co.
(1990)
Without deciding the correctness of court’s interpretation of the parol evidence rule, we uphold its order granting CSAA’s motion in limine for what appears to us to be a clearer, mоre fundamental reason—the alleged promise by CSAA to “consider” parity in setting commission rates based on the evidence submitted by appellants is too vague and indefinite to give rise to an enforceable contractual duty. 2
Under basic contract law “[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 145, p. 169, citing Rest.2d Contracts, § 33; see also
Mutz
v.
Wallace
(1963)
To be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. (Ro
binson & Wilson, Inc.
v.
Stone
(1973)
The vague nature of the alleged duty to pay parity is best illustrated by appellants’ counsel’s comments at the in limine hearing: “The plaintiffs concede that the contract as written does not—does not expressly state that the agents will be paid exactly what State Farm, Farmers or Allstate agents receive as commissions. Plaintiffs are not asking for that, [f] We have all along merely been proposing this evidence solely so that it could be offered as one of the factors that the company would consider when it adjusted the unit value . . . . [f]. . .Iam merely asking that [commission rates paid by other insurers] be taken into consideration by the company or that there was an obligation or a promise ... a company policy and practice that they would take that into considerаtion.” (Italics added.)
*771 An amorphous promise to “consider” what employees at other companies are earning cannot rise to the level of a contractual duty. Appellants were paid according to a precise unit value system detailed in the comp plan. By what standard would a court or a jury determine that the company failed to meet its obligation to “consider” commissions earned by competitors? What would be the relevant market on which such a duty would be predicated? CSAA’s four major competitors? All insurers in the state? Eighty companies nationwide? How would “damages” be calculated? By totalling up all yearly commissions earned by other agents, averaging them and subtracting the difference? By coming up with an “industry standard” factor and increasing CSAA’s unit value ratio by that factor? The nature of the obligation asserted provides no rational method for determining breach or computing damages.
Cases from outside California confirm that promises by an employer to pay “parity” or “according to industry standards” are not sufficiently definite to be enforceable. In
Ellis
v.
El Paso Natural Gas Co.
(10th Cir. 1985)
Policy reasons also support our conclusion that the alleged promise is unenforceable. This is not a situation comparable to
Foley
v.
Interactive Data Corp.
(1988)
Such policy considerations moved the Michigan Supreme Court in
Dumas
v.
Auto Club Ins. Assn.
(1991)
Previously, the court had held that a covenant precluding termination without good cause could be implied into an employment contract if justified by the employee’s “legitimate expectations grounded in an employer’s policy statements.”
(Toussaint
v.
Blue Cross & Blue Shield of Mich.
(1980)
In Dumas, however, the court declined to extend that doctrine to the area of employee compensation. “Were we to extend the legitimate-expectations claim to every area governed by company policy, then each time a policy change took place contract rights would be called into question. The fear of courting litigation would result in a substantial impairment of a company’s operations and its ability to formulate policy. . . . [f] . . . Given the traditional reluctance of courts to interfere with management decisions and the needed flexibility of businesses to chаnge their policies to respond to changing economic circumstances, we conclude that Toussaint should not be extended to create legitimate expectations of a permanent compensation plan.” (473 N.W.2d at pp. 656-657.)
*773 Dumas's analysis is applicable here. Companies, like people, change direction. Accepting at face value appellants’ premise that CSAA formerly used surveys of market rates as a factor in fixing its commission rate and that this policy was abandoned in 1986, we see no reason why an employer should not be free to alter methods of compensating employees when circumstances so dictate and the alteration does not violate any clear contractual restraint.
It was conceded below that CSAA ceased all statements concerning “parity” or “industry standards” after 1985. Yet appellants seek to impose contractual liability on CSAA for suchi statements beginning in 1987, two years after the cessation of the alleged parity policy. We have nо difficulty concluding that contractual duties may not be predicated on employer practices or policies which have become obsolete. 5
II
Logistical Support *
III
Motion to Tax Costs
Pursuant to Code of Civil Procedure section 1033.5 (section 1033.5) CSAA filed a cost bill in which it claimed $22,981.13 in costs “as a matter of right” (id., subd. (a)) and $18,124.15 in “discretionary” costs (id., subd. (c)(4)), for a total of $41,105.28.
Appellants filed a motion to tax costs, challenging the propriety of a number of items. The trial court denied the motion in a one-sentence minute order. Appellants appeal from the order denying their motion, claiming that a number of items were improperly allowed.
“[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil
*774
action. [Citation.]”
(Van de Kamp
v.
Gumbiner
(1990)
If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.
(Melnyk
v.
Robledo
(1976)
We apply the foregoing principles to the various items challenged by appellants.
1. Attorney Lunches
Included among CSAA’s schedule of “Deposition Related Travel Expenses” were more than $1,000 for lunches consumed while attending local depositions and other meals simply designated “Business Meal Expenses (Not Deposition Related).” Appellants’ contention that these expenses were not recoverable as costs is meritorious.
The оnly meal expenses statutorily allowable are those for jurors while they are kept together during trial and deliberation. (§ 1033.5, subd. (a)(2).) While section 1033.5, subdivision (a)(3) allows the cost of taking and transcribing depositions and “travel expenses to attend depositions,” it does not mention meals eaten while attending local depositions. Nor can meal expenses be justified as “necessary to the conduct of the litigation” since attorneys have to eat, whether they are conducting litigation or not. At best, *775 these expenses are “merely convenient or beneficial” to preparation for litigation, the recovery of which is proscribed under section 1033.5, subdivision (c). They should have been stricken.
2. Trial Exhibits, Binders and Tabs
CSAA claimed $10,202.89 for trial exhibits, blowups and transparencies, and an additional $1,167.58 for binding and tabbing the exhibits. Section 1033.5, subdivision (a)(12) provides that expenses of trial exhibits “may be allowed if they were reasonably helpful to aid the trier of fact.” (Italics added.) It follows that fees are not authorized for exhibits not used at trial. Since the case was dismissed before trial, CSAA failed to qualify for recovery of exhibit costs under this standard. These items should have been disallowed in their entirety.
3. Faxes
CSAA included in the cost bill $4,147 for faxed documents from 1989-1992. Section 1033.5, subdivision (b)(3) forbids reimbursement of expenses for postage, telephone and photocopying. While the statute, written seven years ago, makes no reference to fax charges, we believe they are embraced within this prohibition. Fax expenses contain elements of all three of the above nonrecoverable items, and it is unlikely that the Legislature intended to allow attorneys to circumvent the statutory bar by using a fax machine instead of the mail, the telephone or a photocopier. 6
4. Local Travel Expenses
Another item disputed by appellants was $1,680.21 for “Local Travel Expenses” unrelated to depositions. These items included parking fees, cab fares and “mileage/parking” fees for attorneys and paralegals, during 1989-1992.
The only travel expenses authorized by section 1033.5 are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for local travel by *776 attorneys or other firm employees are not reasonably necessary to the conduct of litigation. The declaration of CSAA Attorney Joseph Hunsader failed to demonstrate how any of these charges were necessary to conduct the litigation, as opposed to being merely convenient. The expenses should not have been allowed.
5. Delivery Charges
Appellants characterize as “excessive” $2,518.91 claimed by CSAA for courier and messenger charges. However, the declaration of Hunsader stated that these charges were related to trial рreparation, and were incurred for such matters as filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom. The declaration provides substantial evidence that these charges were reasonably necessary. The trial court therefore had an adequate basis for allowing these costs under section 1033.5, subdivision (c)(4), and its denial of the motion in this respect was not an abuse of discretion.
6. Computer Legal Research
The court allowed CSAA’s claim of $5,697.40 for “Computer Legal Research.” This was error. Section 1033.5, subdivision (b)(2) precludes recovery of investigation expenses and attorney fees are not compensable as costs in the absence of an agreement of the parties or statutory authority. (Code Civ. Proc., § 1021.) Fees for legal research, computer or otherwise, may not be recovered under section 1033.5.
7. Department of Insurance Fees
CSAA listed $2,044 for Department of Insurance fees. Hunsader’s declaration explains that these fees were paid for obtaining documents from the Department of Insurance. They contained data relevant to appellants’ parity claim and were utilized by a CSAA expert in preparing to testify on that subject.
The court should have stricken this item. A party may not recover fees for experts not ordered by the court (§ 1033.5, subd. (b)(1)), and subdivision (b)(2) of section 1033.5 plainly bars recovery of “[investigation expenses in preparing the case for trial.” An award of fees incurred in order to assist an expert prepare his testimony runs contrary to either or both of the foregoing subdivisions.
*777 Disposition
The judgment is affirmed. The cause is remanded to the trial court to vacate its order denying appellants’ motion to tax costs and enter a new order taxing costs in accordance with the views expressed herein. Each party to bear its own costs on appeal.
Kline, P. J., and Benson, J., concurred.
A petition for a rehearing was denied November 19, 1993.
See footnote, ante, page 761,
Notes
Appellants do not here challenge the propriety of the court’s dismissal of the wrongful termination count.
Whether a contract term is sufficiently definite to be enforceable is a question of law for the court.
(Ersa Grae Corp.
v.
Fluor Corp.
(1991)
Appellants’ claim that
Ellis
has been “overruled” by the New Mexico Supreme Court in
Lukoski
v.
Sandia Indian Management Co.
(1988)
The
Lukoski
court rejected the employer’s reliance on
Ellis
for the proposition that the language in the handbook was too vague. Without in any way disapproving
Ellis,
the court held simply that “from the language of the handbook and the conduct of [the employer] in adopting the policy, it could be properly found that the policy was part of the employment agreement.”
(Lukoski, supra,
Although they did not specifically cast their claim for relief in promissory estoppel terms, a central theme of appellants’ position, both here and in the trial court, was that they detrimentally relied on CSAA’s policy concerning industry parity and would have left the company years ago had they known that CSAA was going to abandon it.
As indicated previously (p. 769, ante), appellants have tried to avoid the effect of the parol evidence rule by claiming that CSAA’s promise to pay parity could be construed as a subsequent modification of their employment agreement. CSAA vigorously disputes this notion and urges that appellants are foreclosed from raising this theory for the first time on appeal. Our conclusion that the promise is unenforceable moots this debate.
CSAA’s citation to
Levy
v.
Toyota Motor Sales, U.SA., Inc.
(1992)