Carwash of America-PO LLC v. Windswept Ventures No. I, LLC

Where judgment is entered for the plaintiff on a claim for breach of contract, and the contract contains a provision permitting the prevailing party to recover expert witness fees, such fees may not be awarded as an item of costs but must be pleaded and proven separately. (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [ 28 Cal.Rptr.2d 878 ].) In this matter, we conclude the same rule applies to a prevailing defendant.

After obtaining summary judgment on plaintiff’s breach of contract claims, defendants sought reimbursement for expert witness fees incurred in connection with the litigation. Defendants argued that such fees are an element of attorney fees and costs recoverable under the terms of the parties’ contract. The trial court disagreed and denied the request. We affirm the judgment (order).

Facts and Procedural History

The facts of this matter may be stated briefly. Plaintiff, Carwash of America-PO LLC, contracted with defendants, Windswept Ventures No. I, LLC, and Windswept Ventures No. II, LLC, for the purchase of two car washes. Among other things, the agreement provided: “In the event any dispute between Buyer and Seller should result in…