High Court Review Could Pay Off on Witness Issue

Carl Olson and Mark Seidenberg went in debt to the tune of more than $250,000 when they retained two expert witnesses — one on elections and the other on economics — to challenge their auto club’s elections procedures.

But thanks to the California Supreme Court, which agreed to review their case on Wednesday, both might yet get some of that hard-spent money back.

Olson and Seidenberg, twice unsuccessful candidates for the Automobile Club of Southern California’s board of directors, crossed their fingers when they retained the two experts. And when they won their case — which they brought as private attorneys general — at the trial court level, they were awarded about $90,000 in expert fees.

Not as much as they’d hoped, but plenty considering they also won approximately $1.2 million in attorneys fees.

On appeal, however, the auto club persuaded Los Angeles’ Second District Court of Appeal that the private AG statute — Code of Civil Procedure 1021.5 — didn’t allow expert witness fees. The court eliminated the $90,000 awarded at trial.

On Wednesday, though, Olson and Seidenberg got a temporary reprieve when the Supreme Court unanimously granted review on the fees issue alone. The court was likely convinced to accept the case because the appellate ruling directly contradicted Beasley v. Wells Fargo Bank, 235 Cal.App.3d 1407, a 1991 decision by San Francisco’s First District.

In his petition for review, L.A. lawyer Thomas Bourke made an impassioned plea for Olson and Seidenberg, arguing that public interest cases could be doomed without the right to recover experts’ fees.

“If the often significant cost of retaining experts cannot be recovered in successful cases, litigants and attorneys acting as private attorneys general will have to pay those costs themselves,” he wrote. “The inevitable result will be that either meritorious cases requiring substantial expert expenses either will not be brought, or necessary experts will not be retained.”

Arguments before the justices themselves are a long way off. In the meantime, Olson and Seidenberg — who paid only $48 each for their auto club memberships — must hope and pray that the $250,000 doesn’t wind up costing them more than it was worth.

Mike McKee



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