City of Los Angeles v. Clay

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.

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 in

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 Pac. 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. 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 pur

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 malee the ground assigned a basis for denying or reducing the compensation adjudged as reasonable.

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

I do not think the citation of cases on the general question of costs is helpful in this case. Section 1255a of the Code of Civil Procedure is unmistakably a statute applying alone to cases in which the extraordinary power of eminent domain is sought to be exercised. It recognizes the limited meaning of “costs and disbursements” and specifically adds to the ordinary cost bill disbursements “which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees.” The legislature evidently did not consider that the usual allowance of “costs and disbursements” to the winning party properly covered the situation described in 1255a, supra, so it proceeded to provide specifically therefor. There is sound reason for this legislation. Too often ambitious municipalities have pushed condemnation proceedings to judgment only to abandon them before paying out the money when the values exceeded the engineering estimates. That the ordinary cost bill fell far short of making the property owner whole is obvious.

I think the evident purpose of section 1255a of the Code of Civil Procedure is disregarded in the main opinion, for it holds that section 1871 of the Code of Civil Procedure in a large measure supersedes section 1255a. If this is a proper interpretation it cuts the very heart out of the latter section. It is my opinion that the purposes of these two code sections are entirely different.

Section 1871 is a permissive statute. Either one or all parties may or may not act under it. If a party acts under it the court selects and appoints the experts and the fee is taxed as costs. If the party does not act under it he selects his own experts and pays them except for the small witness fee. A party has a perfect right to take either course according to his own judgment and it is entirely beyond my comprehension how this choice can or does affect the “neces

Expert testimony is constantly being criticised by the courts, but where technical knowledge is required it seems there is no better way to get it than from men learned in the particular line of information needed. Despite the abuses, I know of no better way to arrive at the truth than through the sworn testimony of men who have prepared the details of a case in which they are called to testify and to submit themselves to cross-examination. That a man’s property should be taken from him for a compensation estimated by a witness chosen for him and with whom he has no right to confer, and by a witness whose extent of examination of the property and the elements that affect its value he has no right to know until the witness reaches the witness-stand, is monstrous. It is entirely foreign to our system of jurisprudence. And yet this is the logic of every scheme for judicial selection of experts. No party should ever be required to have his case affected by judge chosen witnesses. Section 1871, according to the main opinion, effectually says to every property owner, in an eminent domain case, “Let the judge appoint your experts, or you cannot have their fees repaid you in ease the plaintiff abandons the case.” I cannot agree with this conclusion and I have a suspicion of its constitutionality if this conclusion is a correct one. The trial judge should have decided whether or not the expert witnesses employed by respondents were necessary, and if they or any of them were necessary he should have fixed a reasonable compensation for them and included the same in the costs allowed.