Security Pacific National Bank v. Marder & Marder

Opinion

LILLIE, P. J. Objector Marder & Marder appeals from an order to pay to Security Pacific National Bank the sum of $800 pursuant to Code of Civil Procedure section 2037.6.

Facts

Marder & Marder, attorneys at law, and Francesca Wagoner, both distributees of the estate of Don E. Marón, deceased, filed objections to account of, and motion to surcharge Security Pacific National Bank (hereinafter Bank) as administrator of the estate, for negligently managing and selling real property in the estate. Trial was set for November 29, 1983. Bank timely sent to objectors a demand to exchange lists of expert witnesses on September 20, 1983, with a date of exchange set for October 10, 1983. Objectors mistakenly believed their list of experts had been timely sent to Bank’s attorneys, and only discovered Bank had not received their list on November 18, 1983. On November 21, 1983, objectors sent their list of experts to Bank and filed a motion to allow objectors to present testimony of designated expert witnesses. Bank filed opposition to the motion arguing it would be prejudiced if objectors’ witnesses were allowed to testify because Bank had prepared its case in large part in reliance on the fact that there would be no expert testimony and, because of the November 29, 1983 trial date, there would be no opportunity to depose the experts. Bank’s opposition also stated that if the court granted objectors’ motion, the court should continue the trial, allow deposition of the experts, and award Bank its “costs and litigation expenses incurred as a result of the tardy designation of experts, the resulting motions concerning same, and the cost to reprepare for trial on the continued date” pursuant to Code of Civil Procedure section 2037.6, subdivision (a).

On November 28, 1983, the court granted objectors’ motion, continued the trial, and awarded Bank “costs and litigation expenses.” The order filed as a result of the ruling stated that “Such costs and litigation expenses, including attorneys’ fees, if attorneys’ fees are legally and factually appro[711]priate, are imposed on Francesca Wagoner and her counsel Marder and Marder jointly and severally, in favor of Security Pacific National Bank in an amount according to proof at the hearing of the contested matter.”

On April 19, 1984, Bank’s attorney filed a declaration itemizing 19 hours of attorney time, amounting to $2,470 in attorneys’ fees, incurred as a result of the tardy designation of experts, the resulting motion therefrom, and cost of trial preparation duplicated due to the continuance. On June 4, 1984, objectors served on Bank memorandum of points and authorities in opposition to attorney’s fees, arguing Code of Civil Procedure section 2037.6 does not allow the award of attorneys’ fees. On July 16, 1984, after oral argument, the court allowed Bank attorneys’ fees of $800 for the November 28, 1983, hearing time and the preparation for that hearing. An order re costs and litigation expenses under Code of Civil Procedure section 2037.6 was filed on July 20, 1984, ordering that Marder & Marder pay to Bank $800. n is from the July 20, 1984, order that Marder & Marder appeals.1