California Code of Civil Procedure Section 1033.5 - Legal Fees Provision
In Ripley v. Pappadopoulos (1994) 23 Cal. App. 4th 1616 28 Cal. Rptr. 2d 878, the Court held that a general contract provision for recovery of attorney's fees and costs must be construed in light of Code of Civil Procedure section 1033.5 and does not include expert witness fees. (Ripley at pp. 1626-1627.)
As the court explained in Ripley: "In Bussey the court attempted to avoid the statutory prohibition against the inclusion of expert witness fees in a cost award by equating expert witness fees and other nonallowable costs of litigation with attorney fees and by concluding that such costs may be included in an award of contractual attorney fees.
We cannot adhere to that approach. In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees. . .
In view of the clear distinction that has always been drawn between attorney fees and the expenses of litigation, we cannot disregard the Legislature's express prohibition against the inclusion of expert witness fees in a cost award by equating such expenses with attorney fees. " (Ripley, supra, 23 Cal. App. 4th at pp. 1625-1626.)