City of Los Angeles v. Clay , 126 Cal. App. 465 ( 1932 )

Three cases were consolidated upon appeal by the City of Los Angeles from orders denying motions to tax costs in eminent domain proceedings, following the dismissal thereof after trial.

[1] The principal question presented necessitates an interpretation of section 1255a of the Code of Civil Procedure relating to witness' fees. It is therein provided: "Upon such abandonment, express or implied, on motion of the defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees." The appellant excepted to the allowance of fees to expert witnesses who had appraised the designated properties and who were called by the respondents to testify as to values. It is contended that these are not proper taxable items for the reason that said witnesses were not appointed by the court, but were employed by the defendants.

It has been determined that the fees of expert witnesses in condemnation proceedings are not authorized under sections 1022,1025 and 1255 of the Code of Civil Procedure which relate to "costs". (City of Los Angeles v. Vickers, 81 Cal.App. 737 [254 P. 687].) As there said, adopting the language of another court: "`The word "costs", when used in relation to the expenses of legal proceedings, means the sum prescribed by law as charges for the services enumerated in the fee-bill.'" It contemplates only such costs as are authorized by statute. Said section 1255a of the Code of Civil Procedure provides that upon abandonment of proceedings in eminent domain before the expiration of thirty days after final judgment the defendant may have his necessary expenses incurred in preparing for trial.[2] Section 1871, embraced in title I, part 4, of the same code, wherein the legislature established "general principles of evidence", empowers the trial court in any proceeding, civil or criminal, to appoint and fix the compensation of expert witnesses whenever it shall be made to appear that their evidence is or will be required by the court or any party to the action. Said section further plainly states, however, that: "Nothing contained in this section shall be deemed or construed so as to prevent any party to any action or proceeding from producing other expert evidence as to such matter or matters, but where other expert witnesses are called by a party to an action or proceeding they shall be entitled to the ordinary witness fees only and such witness fees shall be taxed and allowed in like manner as other witness fees." The respondents seek to bring the case within the rule heretofore announced that such a proceeding as the instant one "is so differentiated from the ordinary actions or proceedings in a court of justice . . . as to bring it within the settled test justifying the assignment of the proceeding to a particular class for the purpose of reasonable provisions not applicable to other classes of actions." (City of Los Angeles v. Cline, 40 Cal.App. 487 [181 P. 78].) The decisions so cited relate only to attorneys' fees, which are expressly made allowable in proper cases by section 1255a of the Code of Civil Procedure. We are cited to no authority which can be said to justify the conclusion that section 1871 is not applicable here, or that a party has the power which is elsewhere vested in the court to determine what expert evidence may be required and thus to include the cost thereof as a necessary expense in preparing for trial. We have no doubt that this section does apply to condemnation proceedings and that it was intended by the legislature to provide means for a fair and complete ascertainment of facts involved, in this as well as any other proceeding wherein its provisions are used. We conclude that the charge made for expert witnesses other than as ordinary witnesses should be disallowed the more readily because as to such expenses section 1871 entirely safeguards a defendant in condemnation proceedings from loss in case of abandonment by the plaintiff. Under its provisions it is only necessary that a party who desires to use experts should satisfy the court of this necessity and secure an order appointing one or more such witnesses and allowing reasonable and proper compensation for their services. It cannot be assumed, contrary to the admissions of all parties to the present appeals that the witnesses in question were not such as were entitled "to the ordinary witness fees only". It is conceded by the respondents that their experts were called by them, and their category having been defined by legislative enactment, it does not permit of another characterization by judicial interpretation.

[3] It is contended that an item of attorneys' fees, being more than the amount at which the defendant's property was appraised, was excessive, and that the trial court abused its discretion in allowing the same. It is not contended, however, that such fees were unreasonable for whatever services the trial court found to have been rendered, nor is any authority cited tending to make the ground assigned a basis for denying or reducing the compensation adjudged as reasonable.

It is ordered that the judgment for witnesses' fees be modified as indicated herein, and as so modified, the judgment is affirmed.

Thompson (Ira F.), J., concurred.