Segal v. ASICS America Corp. ( 2022 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    MICKEY SEGAL et al.,
    Plaintiffs and Appellants,
    v.
    ASICS AMERICA CORPORATION et al.,
    Defendants and Respondents.
    S263569
    Second Appellate District, Division Four
    B299184
    Los Angeles County Superior Court
    BC597769
    January 13, 2022
    Chief Justice Cantil-Sakauye authored the opinion of the Court,
    in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
    Irion* concurred.
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division One, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    SEGAL v. ASICS AMERICA CORPORATION
    S263569
    Opinion of the Court by Cantil-Sakauye, C. J.
    A prevailing party in civil litigation is entitled to recover
    costs incurred in the litigation. (Code Civ. Proc., § 1032,
    subd. (b).) Code of Civil Procedure section 1033.5 1 sets forth
    specific items of costs that are allowed or prohibited. (§ 1033.5,
    subds. (a), (b).) The statute also authorizes the trial court in its
    discretion to award or deny an item of costs not mentioned in
    this section. (§ 1033.5, subd. (c)(4).)
    We granted review to resolve a conflict among the Courts
    of Appeal regarding whether costs incurred in preparing
    photocopies of exhibits and demonstrative aids for trial are
    recoverable under section 1033.5 even if they were not
    ultimately used at trial. In this case, the Court of Appeal held
    that such exhibit-related costs are recoverable under section
    1033.5, subdivision (a)(13) (hereinafter section 1033.5(a)(13)),
    which allows the recuperation of costs for models, enlargements,
    and photocopies of exhibits “if they were reasonably helpful to
    aid the trier of fact.” The court further held that such costs may
    be awarded in the trial court’s discretion under section 1033.5,
    subdivision (c)(4) (hereinafter section 1033.5(c)(4)).
    For the reasons set forth below, we conclude that costs
    related to unused photocopies of trial exhibits and
    1
    All further statutory references are to the Code of Civil
    Procedure unless otherwise indicated.
    1
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    demonstratives are not categorically recoverable under section
    1033.5(a)(13), but they may still be awarded in the trial court’s
    discretion pursuant to section 1033.5(c)(4). Accordingly, we
    affirm the Court of Appeal, although on slightly narrower
    grounds.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Plaintiffs Size It, LLC, and Mickey Segal (collectively,
    plaintiffs) sued defendants ASICS America Corporation, ASICS
    Corporation, Kevin Wulff, Kenji Sakai, Motoi Oyama, and
    Katsumi Kato (collectively, defendants) for fraud. The case
    proceeded to trial, and the jury rendered a verdict in defendants’
    favor.
    Defendants subsequently filed a memorandum of costs
    pursuant to section 1032. Plaintiffs moved to tax costs; that is,
    they asked the court to deny or reduce several of defendants’
    claimed costs. As pertinent here, plaintiffs challenged the costs
    associated with preparing photocopies of exhibits, exhibit
    binders, and closing argument demonstrative aids that were
    prepared for but ultimately not used at trial. Defendants
    opposed the motion.
    Following a hearing, the trial court granted plaintiffs’
    motion in part and denied it in part. As relevant here, the court
    allowed defendants to recover their costs associated with
    photocopying trial exhibits, creating exhibit binders, and
    preparing demonstrative boards and slides even though they
    were not used at trial.
    The Court of Appeal affirmed the ruling on the motion to
    tax costs. (Segal v. ASICS America Corp. (2020) 
    50 Cal.App.5th 659
    , 667 (Segal).) It held that costs associated with unused
    demonstratives and photocopies of trial exhibits are recoverable
    2
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    under section 1033.5(a)(13). (Segal, at pp. 666–667.) In
    reaching its conclusion, the Court of Appeal expressly disagreed
    with the analysis of section 1033.5(a)(13) set out in two prior
    appellate court decisions — Seever v. Copley Press, Inc. (2006)
    
    141 Cal.App.4th 1550
     (Seever) and Ladas v. California State
    Auto. Assn. (1993) 
    19 Cal.App.4th 761
     (Ladas). (Segal, at
    p. 667.) The Court of Appeal further held that these costs are
    also allowable in the trial court’s discretion under section
    1033.5(c)(4). (Segal, at p. 667.) The Court of Appeal’s
    interpretation of section 1033.5(c)(4), although in conflict with
    the Seever decision, was consistent with the holdings reached in
    Benach v. County of Los Angeles (2007) 
    149 Cal.App.4th 836
    (Benach) and Applegate v. St. Francis Lutheran Church (1994)
    
    23 Cal.App.4th 361
     (Applegate).
    As noted, we granted review to resolve the conflict.
    II. DISCUSSION
    Generally, a trial court’s award of costs is reviewed for
    abuse of discretion. (Goodman v. Lozano (2010) 
    47 Cal.4th 1327
    ,
    1332.) Yet when the issue is one of statutory interpretation, it
    presents a question of law that we review de novo. (Ibid.)
    A prevailing party is entitled “as a matter of right” to
    recover costs in any action or proceeding unless a statute
    expressly provides otherwise. (§ 1032, subd. (b).) Section 1033.5
    sets forth the types of expenses that are and are not allowable
    as costs under section 1032. Specifically, subdivision (a) of
    section 1033.5 describes items that are “allowable as costs,”
    subdivision (b) describes items “not allowable as costs, except
    when expressly authorized by law,” and section 1033.5(c)(4)
    provides that “[i]tems not mentioned in this section and items
    assessed upon application may be allowed or denied in the
    3
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    court’s discretion.” All costs, whether expressly permitted under
    section 1033.5, subdivision (a) or awarded in the trial court’s
    discretion pursuant to section 1033.5(c)(4), must be “reasonably
    necessary to the conduct of the litigation rather than merely
    convenient or beneficial to its preparation” (§ 1033.5,
    subd. (c)(2)) and “reasonable in amount” (§ 1033.5, subd. (c)(3)).
    Section 1033.5(a)(13) provides that costs for “[m]odels, the
    enlargements of exhibits and photocopies of exhibits, and the
    electronic presentation of exhibits, including costs of rental
    equipment and electronic formatting, may be allowed if they
    were reasonably helpful to aid the trier of fact.” As noted above,
    there is a split of appellate authority regarding whether costs
    associated with unused demonstratives and photocopies of trial
    exhibits are recoverable, either categorically under section
    1033.5(a)(13) or in the court’s discretion pursuant to section
    1033.5(c)(4).
    A. The Conflicting Appellate Court Decisions
    In Ladas, the appellate court held that costs associated
    with photocopies of exhibits, exhibit binders, blowups, and
    transparencies prepared for but not used at trial are not
    allowable as costs under section 1033.5(a)(13). (Ladas, supra,
    19 Cal.App.4th at p. 775.) It observed: “Section 1033.5, [former]
    subdivision (a)(12)[, now subdivision (a)(13),] provides that
    expenses of trial exhibits ‘may be allowed if they were reasonably
    helpful to aid the trier of fact.’ (Italics added.) It follows that
    fees are not authorized for exhibits not used at trial.” (Ibid.)
    The Ladas court concluded that because the case was dismissed
    before trial, the prevailing party “failed to qualify for recovery of
    exhibit costs under this standard.” (Ibid.)
    4
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    Subsequent to Ladas, however, the appellate court in
    Applegate concluded that costs incurred in preparing unused
    trial exhibits are allowable under a different provision of the
    costs statute. (Applegate, supra, 23 Cal.App.4th at pp. 363–
    364.) In Applegate, the plaintiff dismissed the action on the day
    of trial. (Id., at p. 364.) Nevertheless, the reviewing court held
    that the trial court did not abuse its discretion in allowing the
    defendant to recover costs incurred in preparing such exhibits
    under section 1033.5(c)(4). (Applegate, at p. 364.) It reasoned
    that “[t]he exhibits prepared were ‘reasonably necessary to the
    conduct of the litigation’ ” because they were made for a trial
    that the defendants “were forced to continue preparing for” until
    a dismissal was filed. (Ibid.) The Applegate court characterized
    its holding as follows: “An experienced trial judge recognized
    that it would be inequitable to deny as allowable costs exhibits
    which a prudent attorney would prepare in advance of trial, and
    which were not used only because the action was dismissed by
    the opposing party on the day of trial.” (Ibid.) In a footnote, the
    Applegate court acknowledged that the appellate court in Ladas
    had disallowed such costs, but distinguished that decision on the
    ground that “Ladas only considered whether the exhibit costs
    were allowable under section 1033.5, [former] subdivision
    (a)(12)[, now subdivision (a)(13)], not whether they could be
    awarded in the trial court’s discretion under subdivision (c)(4).”
    (Applegate, at p. 363, fn. 4.)
    Yet after Applegate, another reviewing court held that
    costs related to preparing unused trial exhibits are not
    recoverable under section 1033.5(a)(13) or section 1033.5(c)(4).
    (Seever, supra, 141 Cal.App.4th at pp. 1558–1560.) In Seever,
    the appellate court concluded, as the Ladas court had, that the
    statutory language of section 1033.5(a)(13) (then numbered as
    5
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    subdivision (a)(12)) “[o]n its face . . . excludes as a permissible
    item of costs exhibits not used at trial, which obviously could not
    have assisted the trier of fact.” (Seever, at p. 1557.) The Seever
    court further determined that in light of the limiting language
    of section 1033.5(a)(13), costs related to unused exhibits are also
    not awardable in the trial court’s discretion under section
    1033.5(c)(4). (Seever, at pp. 1558–1560.) The court reasoned
    that by imposing express limitations regarding the type of
    exhibit costs that are allowable under section 1033.5(a)(13)
    (exhibits that were reasonably helpful to aid the trier of fact),
    the Legislature sought to preclude courts from exercising
    discretion to award costs for those items when the conditions in
    section 1033.5(a)(13) are not met. (Seever, at pp. 1558–1560.)
    Thus, the Seever court concluded, “[T]he discretion granted in
    section 1033.5, subdivision (c)(4), to award costs for items not
    mentioned in section 1033.5 is simply inapplicable” under the
    circumstances. (Seever, at pp. 1559–1560.) In so ruling, the
    Seever court expressly disagreed with Applegate’s holding that
    only those costs items expressly prohibited by section 1033.5,
    subdivision (b) are outside the scope of the trial court’s
    discretionary authority under section 1033.5(c)(4). (Seever, at
    pp. 1558–1559.)
    The Seever court pointed to other provisions of section
    1033.5, subdivision (a) that, by their terms, implicitly excluded
    permissible items of costs, even though they were not expressly
    prohibited under subdivision (b).               (Seever, 
    supra,
    141 Cal.App.4th at p. 1559.) The court observed: “Perhaps most
    obviously, Code of Civil Procedure section 1033.5, subdivision
    (a)(10), provides attorney fees are allowable as costs when
    authorized by contract, statute or law. Although section 1033.5,
    subdivision (b), does not address attorney fees, no one would
    6
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    contend the trial court has discretion under section 1033.5,
    subdivision (c)(4), to award attorney fees as costs in a case not
    included within one of the three subdivision (a)(10) categories,
    based on a showing the fees incurred were ‘reasonably necessary
    to the conduct of the litigation.’ Similarly, section 1033.5,
    subdivision (a)(3), authorizes the recovery of costs for taking,
    videotaping, and transcribing necessary depositions (whether or
    not actually used at trial), including an original and one copy of
    depositions taken by the claimant and one copy of depositions
    taken by the party against whom costs are allowed. Deposition
    copies, therefore, are plainly not one of those ‘[i]tems not
    mentioned in this section’: The Legislature has expressly stated
    how many copies may be included as recoverable costs; and, in
    our view, the trial court has no discretion under section 1033.5,
    subdivision (c)(4), to permit recovery for additional copies even
    if the prevailing party is able to demonstrate those copies were
    reasonably necessary to the conduct of the litigation.” (Ibid.)
    According to the Seever court, because section 1033.5(a)(13) has
    expressly stated what is allowable, section 1033.5(c)(4) does not
    apply. (Seever, at pp. 1559–1560.)
    Nevertheless, just one year after Seever was decided, a
    different division of the same appellate district held that costs
    for unused trial exhibits are recoverable in the trial court’s
    discretion under section 1033.5(c)(4).         (Benach, 
    supra,
    149 Cal.App.4th at pp. 855–856.) In Benach, as in Applegate,
    the reviewing court explained that it would be inequitable to
    deny as allowable and recoverable those costs relating to
    exhibits that any prudent counsel would prepare in advance of
    trial. (Benach, at p. 856.) The Benach court noted that the
    parties in that case had specifically agreed to and completed a
    mutual exchange of exhibits before trial, and prepared exhibit
    7
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    binders for use by the court and witnesses. (Ibid.) The appellate
    court also observed that nothing suggested the prevailing party
    could have anticipated that many of its prepared exhibits would
    not be used at trial. (Ibid.) The Benach court did not attempt
    to distinguish or even acknowledge the Seever decision.
    B. The Decision Below
    In this case, the Court of Appeal held that costs incurred
    in preparing photocopies of exhibits and demonstratives for trial
    are recoverable as a matter of right under section 1033.5(a)(13)
    and in the trial court’s discretion pursuant to section
    1033.5(c)(4), even though they were not ultimately used at trial.
    (Segal, supra, 50 Cal.App.5th at p. 667.) As a preliminary
    matter, the Court of Appeal determined that the “interpretation
    of section 1033.5, subdivision (a)(13) must reflect the reality of
    how complicated cases are tried.” (Segal, at p. 666.) The court
    emphasized that prudent counsel must prepare exhibits well in
    advance of trial, and yet even the most experienced lawyers will
    have difficulty guessing which exhibits and demonstrative aids
    will actually be used due to the inherent unpredictability of
    trial. (Ibid.) The Court of Appeal also emphasized that
    applicable local rules may require the pretrial exchange and
    premarking of all exhibits that might be used at trial, and, as in
    this case, “the trial court’s own procedures often require counsel
    to premark and prepare multiple copies of their exhibits.” (Ibid.)
    The court further reasoned that even if exhibit binders contain
    documents never offered or admitted at trial, their preparation
    facilitates trial proceedings and helps avoid wasting jurors’
    time. (Ibid.) Because the pretrial preparation of exhibit
    photocopies, binders, and demonstrative aids allow trials to
    proceed more efficiently, the court reasoned, “[T]hey are
    8
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    ‘reasonably helpful to aid the trier of fact’ ” and therefore
    recoverable under section 1033.5(a)(13). (Segal, at p. 666.)
    In reaching this holding, the Court of Appeal expressly
    disagreed with Ladas and Seever. (Segal, supra, 50 Cal.App.5th
    at p. 667.) In the Court of Appeal’s view, the Seever and Ladas
    courts had “ ‘ “ ‘ “read into the statute allowing costs a
    restriction which has not been placed there.” ’ ” ’ ” (Segal, at
    p. 667.) The Court of Appeal reiterated that “the meaning of the
    phrase ‘reasonably helpful to the trier of fact’ is broader than the
    limited notion of helpfulness in the specific task of finding facts,
    and encompasses as well the more general concept of
    helpfulness in the form of efficiency in the trial in which the trier
    of fact is asked to perform that task.” (Ibid.)2
    For the same reasons, the Court of Appeal also concluded
    that costs incurred in preparing unused trial exhibits are
    permitted in the trial court’s discretion under section
    1033.5(c)(4). (Segal, supra, 50 Cal.App.5th at p. 667.)
    C. Analysis
    Plaintiffs maintain that defendants are not entitled to
    recover costs for unused trial exhibits and demonstratives under
    section 1033.5(a)(13) because the plain language of the statute
    does not encompass such items. We agree.
    “ ‘ “ ‘When we interpret a statute, “[o]ur fundamental
    task . . . is to determine the Legislature’s intent so as to
    effectuate the law’s purpose. We first examine the statutory
    2
    The Court of Appeal did not fully quote section
    1033.5(a)(13), which allows the recovery of costs for certain
    items that “were reasonably helpful to aid the trier of fact.”
    (Italics added.)
    9
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    language, giving it a plain and commonsense meaning. We do
    not examine that language in isolation, but in the context of the
    statutory framework as a whole in order to determine its scope
    and purpose and to harmonize the various parts of the
    enactment. If the language is clear, courts must generally follow
    its plain meaning unless a literal interpretation would result in
    absurd consequences the Legislature did not intend. If the
    statutory language permits more than one reasonable
    interpretation, courts may consider other aids, such as the
    statute’s purpose, legislative history, and public policy.”
    [Citation.] “Furthermore, we consider portions of a statute in
    the context of the entire statute and the statutory scheme of
    which it is a part, giving significance to every word, phrase,
    sentence, and part of an act in pursuance of the legislative
    purpose.” ’ ” ’ [Citation.] The interpretation of a statute
    presents a question of law that this court reviews de novo.”
    (Smith v. LoanMe, Inc. (2021) 
    11 Cal.5th 183
    , 190.)
    As observed earlier, section 1033.5(a)(13) provides that
    costs for “[m]odels, the enlargements of exhibits and photocopies
    of exhibits, and the electronic presentation of exhibits, including
    costs of rental equipment and electronic formatting, may be
    allowed if they were reasonably helpful to aid the trier of fact.”
    (Italics added.) The statutory language on its face excludes
    unused demonstratives and photocopies of exhibits because they
    did not assist the trier of fact. In describing which exhibit-
    related costs are allowable, the Legislature used the past tense,
    i.e., if the items “were reasonably helpful” (ibid., italics added) —
    not if they “would be” or “could be” reasonably helpful. Because
    this criterion is phrased in the past tense, it conveys that the
    models, enlargements of exhibits, and photocopies of exhibits
    must have, in fact, assisted the trier of fact. And the trier of fact
    10
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    engages in a determination of factual issues in a judicial
    proceeding. According to Black’s Law Dictionary, the “trier of
    fact,” also termed “fact-finder,” is “[o]ne or more persons who
    hear testimony and review evidence to rule on a factual issue.”
    (Black’s Law Dict. (11th ed. 2019) pp. 1815, 737; see id., at p. 737
    [noting that “fact-finder” is termed “trier of fact” “in a judicial
    proceeding” (italics omitted)].) We have similarly observed that
    the term “trier of fact” “recognizes the factual, rather than
    strictly legal, character of the inquiry[,]” and “is used
    interchangeably to refer to a judge or jury.” (Cornette v.
    Department of Transportation (2001) 
    26 Cal.4th 63
    , 75.) Thus,
    costs for models, enlargements, and photocopies of exhibits are
    allowable under section 1033.5(a)(13) only if they were put
    before the trier of fact.3 Demonstratives and photocopies of trial
    exhibits would not have assisted the trier of fact in resolving the
    pertinent factual issues in a case if they were never used.
    As stated, the Court of Appeal below took a broader view
    of section 1033.5(a)(13). Explaining that the interpretation of
    this provision “must reflect the reality of how complicated cases
    are tried,” the court concluded that because the “pretrial
    preparation of exhibit photocopies and demonstratives
    reasonably anticipated for use at trial expedites the
    proceedings,” allowing trials to proceed more efficiently, such
    3
    We recognize that the Court of Appeal recently addressed
    the related, yet distinct issue of whether photocopies of exhibits
    used in a non-trial proceeding are recoverable under section
    1033.5(a)(13). (Rozanova v. Uribe (2021) 
    68 Cal.App.5th 392
    ,
    461–463.) Because the demonstratives and photocopied exhibits
    in this case were prepared for trial, rather than some other
    proceeding, we need not address this additional question.
    Suffice it to say, photocopies of exhibits and demonstratives not
    used at all are not allowable as costs under section 1033.5(a)(13).
    11
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    photocopies and demonstratives are reasonably helpful to aid
    the trier of fact. (Segal, supra, 50 Cal.App.5th at p. 666.) But
    the language of section 1033.5(a)(13) does not support such a
    sweeping construction. As noted above, this provision requires
    that the items were (in fact) reasonably helpful to aid the trier of
    fact (a judge or jury in ruling on a factual issue). This language
    is in tension with the Court of Appeal’s holding that all
    photocopied exhibits and demonstratives “reasonably
    anticipated” for use at trial (Segal, at p. 666) are recoverable
    under section 1033.5(a)(13), even if the unused exhibits were not
    in fact useful, even in a facilitative capacity.
    Furthermore, the broad reading of section 1033.5(a)(13)
    advanced by defendants and the Court of Appeal below renders
    the “reasonably helpful to aid the trier of fact” phrase essentially
    superfluous in the context of the costs recovery statute. Because
    section 1033.5, subdivision (c)(2) already limits allowable costs
    to expenses “reasonably necessary to the conduct of the
    litigation rather than merely convenient or beneficial to its
    preparation,” it is not clear how the Court of Appeal’s reading of
    section 1033.5(a)(13) imposes any additional limits on exhibit
    costs. Instead, the most natural reading of section 1033.5(a)(13)
    and section 1033.5, subdivision (c)(2) is that the “reasonably
    helpful to aid the trier of fact” clause (§ 1033.5(a)(13)) was not
    meant to capture all exhibit-related costs that were in some way
    helpful to the orderly and efficient conduct of the litigation — a
    consideration already accounted for in subdivision (c)(2) — but
    was instead more narrowly focused on the helpfulness of the
    demonstratives and photocopied exhibits to the adjudication of
    factual issues by the trier of fact.
    Defendants offer a different interpretation of section
    1033.5(a)(13). They maintain that the statute requires only that
    12
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    the method of preparing and displaying exhibits, such as
    models, enlargements, or photocopies, must be “reasonably
    helpful.” (§ 1033.5(a)(13).) The particular exhibits themselves,
    defendants assert, need not be useful to aid the trier of fact, or,
    indeed, used at all, so long as the method of preparing them is
    useful. We conclude that neither the language of the statute nor
    its history supports such an interpretation.
    As noted, section 1033.5(a)(13) provides that “[m]odels,
    the enlargements of exhibits and photocopies of exhibits . . . may
    be allowed if they were reasonably helpful to aid the trier of
    fact.” The syntax of the provision makes clear that the only
    reasonable understanding of “they” as used in the statute is that
    the word refers solely to the items themselves. Indeed, appellate
    courts interpreting this provision have allowed the recovery of
    costs under section 1033.5(a)(13) “only if the items ‘were
    reasonably helpful to aid the trier of fact.’ ” (County of Riverside
    v. City of Murrieta (1998) 
    65 Cal.App.4th 616
    , 629, italics
    added.)
    Nor do we perceive in the legislative history any indication
    that section 1033.5(a)(13) allows costs so long as the method of
    preparing exhibits is reasonably helpful. According to an
    analysis of Assembly Bill No. 828 (2017–2018 Reg. Sess.), which
    amended section 1033.5(a)(13) to include the electronic
    presentation of exhibits, the then-existing provision already
    required that “a party seeking to recover costs for models and
    exhibits must show that the models and exhibits were
    reasonably helpful to aid the trier of fact.” (Assem. Com. on
    Judiciary, Analysis of Assem. Bill No. 828 (2017–2018 Reg.
    Sess.) as introduced Feb. 16, 2017, p. 3, italics added.) The bill
    analysis reiterated that “[w]hile this bill expands the list of
    allowable recoverable costs to include electronic exhibits, this
    13
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    bill importantly maintains the requirement that such exhibits
    must be reasonably helpful in aiding the trier of fact.” (Ibid.,
    italics added.) Similarly, the Legislative Counsel’s Digest
    described the then current version of section 1033.5(a)(13) as
    “provid[ing] that costs for models and enlargements of exhibits
    and photocopies of exhibits may be recovered if the items were
    reasonably helpful to aid the trier of fact.” (Legis. Counsel’s
    Dig., Assem. Bill No. 828 (2017–2018 Reg. Sess.), italics added.)
    This history reflects legislators’ understanding that section
    1033.5(a)(13) requires that the models and photocopied exhibits
    themselves be reasonably helpful. Although “ ‘the Legislature’s
    expressed views on the prior import of its statutes” are “neither
    binding nor conclusive in construing the provision[,]” they are
    “ ‘entitled to due consideration’ even if a ‘gulf of decades
    separates’ the legislative declaration and the earlier
    enactment.”     (Jarman v. HCR ManorCare, Inc. (2020)
    
    10 Cal.5th 375
    , 389–390.)
    Based on the foregoing, we conclude that a prevailing
    party is not entitled to recover costs associated with preparing
    photocopies of exhibits and demonstratives under section
    1033.5(a)(13) if the items were not presented to the trier of fact.
    The issue remains, however, whether the trial court in its
    discretion may award costs for such items under section
    1033.5(c)(4).
    Plaintiffs urge this court to apply the analysis set forth in
    Seever — that a trial court may not exercise its discretion to
    award costs when the Legislature has expressly qualified the
    scope of allowable items in section 1033.5, subdivision (a) and
    thereby implicitly prohibited the recovery of costs for similar
    items that are not specifically enumerated in that provision.
    (Seever, supra, 141 Cal.App.4th at pp. 1559–1560.) And yet,
    14
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    other courts have viewed the interplay of section 1033.5,
    subdivisions (a), (b), and (c) differently.
    In Science Applications Internat. Corp. v. Superior Court
    (1995) 
    39 Cal.App.4th 1095
    , 1103, the Court of Appeal
    interpreted section 1033.5 as follows: “Reading the two subparts
    of subdivision (c) together with the rest of the cost statute, we
    conclude, if an expense is neither expressly allowable under
    subdivision (a) nor expressly prohibited under subdivision (b), it
    may nevertheless be recovered if, in the court’s discretion, it is
    ‘reasonably necessary to the conduct of the litigation rather than
    merely convenient or beneficial to its preparation.’ ” (Science
    Applications, at p. 1103, quoting § 1033.5, subd. (c)(2).) The
    court elaborated: “The statutory scheme clearly establishes two
    mutually exclusive sets of trial preparation expenses — one set
    which is allowable as a matter of right (§§ 1033.5, subd. (a),
    1032, subd. (b)) and one which is not (§§ 1033.5, subd. (b), 1032,
    subd. (b)). Expenses which do not fit into either of these two
    categories fall into a special statutory safety net: they may be
    recovered but only at the discretion of the court (§ 1033.5, subd.
    (c)).” (Science Applications, at p. 1103; see also Applegate, supra,
    23 Cal.App.4th at pp. 363–364 [“Items not specifically allowable
    under [section 1033.5,] subdivision (a) and not prohibited under
    subdivision (b) may nevertheless be recoverable in the discretion
    of the court if ‘reasonably necessary to the conduct of the
    litigation rather than merely convenient or beneficial to its
    preparation’ ”].)
    We conclude that Science Applications and Applegate are
    more consistent with the general principles of statutory
    construction. As noted, section 1033.5, subdivision (a) lists
    items specifically allowable as costs; subdivision (b) lists the
    items that “are not allowable as costs, except when expressly
    15
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    authorized by law” (id., subd. (b)). The Seever court reasoned
    that by imposing limits on certain categories of allowable costs
    under subdivision (a), the Legislature also implicitly precluded
    the recovery of additional subcategories of those same items,
    even if they were not explicitly prohibited under subdivision (b).
    (Seever, supra, 141 Cal.App.4th at pp. 1559–1560.) But other
    provisions of the costs statute undermine Seever’s analysis and
    demonstrate that when the Legislature intended to preclude
    recovery of costs related to items described in subdivision (a), it
    did so explicitly — and not implicitly.
    For example, section 1033.5, subdivision (a)(8) expressly
    provides that fees of expert witnesses ordered by the court are
    allowable as costs. Under Seever’s logic, fees of expert witnesses
    not ordered by the court would implicitly become not allowable.
    And yet the Legislature expressly disallowed such costs in
    subdivision (b)(1). Similarly, section 1033.5, subdivision (a)(9)
    provides that transcripts of court proceedings ordered by the
    court are allowable. Nevertheless, the Legislature expressly
    prohibited the recovery of costs for transcripts of court
    proceedings not ordered by the court under subdivision (b)(5).
    Indeed, the Legislature specified in subdivision (b)(3) that
    “photocopying charges, except for exhibits” (italics added) are not
    allowable as costs, but it would make little sense to expressly
    “except” such photocopying costs if, as plaintiffs contend, section
    1033.5(a)(13) already implicitly precluded them.             If the
    Legislature had wished to exclude as costs exhibits that were
    not reasonably helpful to aid the trier of fact, it could have done
    so — and given its corresponding contemporaneous treatment
    in related circumstances, presumably would have done so — by
    including that prohibition in subdivision (b). Yet subdivision (b)
    contains no such express prohibition.
    16
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    We are also unpersuaded by Seever’s emphasis on section
    1033.5, subdivision (a)(10), the attorney fees provision, in
    support of its conclusion that the Legislature implicitly
    precluded certain costs without expressly excluding them under
    section 1033.5, subdivision (b). (Seever, supra, 141 Cal.App.4th
    at p. 1559.) Section 1033.5, subdivision (a)(10) provides that
    attorney fees are allowable as costs when authorized by
    contract, statute, or law. Although we agree that attorney fees
    not authorized by contract, statute, or law are not allowable,
    despite section 1033.5, subdivision (b)’s silence concerning this
    item, we are mindful that section 1033.5 is not the only
    applicable set of constraints on a trial court’s discretion to award
    attorney fees as costs. Section 1021 codifies the rule that “each
    party to a lawsuit ordinarily pays its own attorney fees” unless
    a statute or contract provides otherwise. (Mountain Air
    Enterprises, LLC v. Sundowner Towers, LLC (2017) 
    3 Cal.5th 744
    , 751; see § 1021 [“Except as attorney’s fees are specifically
    provided for by statute, the measure and mode of compensation
    of attorneys and counselors at law is left to the agreement,
    express or implied, of the parties”].) Reading sections 1021 and
    1033.5 together, 4 the limited circumstances in which attorney
    fees may be awarded as costs identified in section 1033.5,
    subdivision (a)(10) are necessarily exclusive. Meanwhile, no
    similar background principles apply to restrict exhibit costs to
    those allowed by section 1033.5(a)(13). Thus, we hesitate to
    extrapolate Seever’s negative implication argument based solely
    4
    In the same bill that enacted section 1033.5, the
    Legislature also considered and amended section 1021, further
    suggesting that the two statutes should be harmonized and read
    together. (See Stats. 1986, ch. 377, § 2, p. 1578 [amending
    § 1021]; id., § 13, p. 1579 [enacting § 1033.5].)
    17
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    on section 1033.5’s attorney fees provision to other items in the
    costs statute.
    Accordingly, we find no indication that the Legislature
    intended to circumscribe the trial court’s discretionary authority
    under section 1033.5(c)(4) to award costs incurred in preparing
    demonstratives and photocopies of trial exhibits, even though
    they were not ultimately used at trial, when such materials are
    reasonably necessary to the conduct of litigation and reasonable
    in amount. (Nelson v. Anderson (1999) 
    72 Cal.App.4th 111
    , 129
    [courts should not “ ‘ “ ‘ “read into the statute allowing costs a
    restriction which has not been placed there” ’ ” ’ ”].) Instead, we
    view section 1033.5 as being silent regarding demonstratives
    and photocopied exhibits not presented to the trier of fact,
    rendering them “[i]tems not mentioned in this section” that
    “may be allowed or denied in the court’s discretion.”
    (§ 1033.5(c)(4).) Hence, we agree with the Court of Appeal that
    costs for such items are allowable in the trial court’s discretion
    under section 1033.5(c)(4).
    Plaintiffs’ remaining arguments are unconvincing. They
    claim that allowing the prevailing party to recover costs for
    photocopies of exhibits and demonstrative aids not put before
    the trier of fact would “create a perverse incentive to litigants
    (especially those well-funded) to over prepare highly prejudicial,
    objectionable exhibits, slides and content that would never be
    shown to a jury in order to drive up recoverable costs.” But
    section 1033.5 instructs trial courts to strike costs that are not
    “reasonably necessary to the conduct of the litigation” or
    “reasonable in amount” (§ 1033.5, subd. (c)(2), (3)), and courts
    have routinely done so, including costs for unused photocopies
    of trial exhibits (e.g., Great Western Bank v. Converse
    Consultants, Inc. (1997) 
    58 Cal.App.4th 609
    , 615). It bears
    18
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    repeating that any award of costs — whether categorically
    recoverable under section 1033.5, subdivision (a) or allowable in
    the court’s discretion under section 1033.5(c)(4) — must meet
    the requirements of subdivision (c)(2) and (3). We are confident
    that these statutory limitations will continue to guard against
    the prospect of abuse.
    Plaintiffs also maintain that it would be illogical to force a
    party to pay for the costs of certain exhibit-related items, such
    as demonstrative slides prepared for closing argument, that the
    party successfully excluded from trial. The Legislature could
    have spelled out a categorical prohibition against shifting costs
    for inadmissible exhibits, but did not. In the absence of such a
    bar, these are the type of costs that may be awarded in the trial
    court’s discretion, and the Court of Appeal properly held that
    the trial court did not abuse its discretion by doing so in this
    case. (Segal, supra, 50 Cal.App.5th at p. 667.)
    III. DISPOSITION
    For the reasons set forth above, we conclude that the
    Court of Appeal erred when it held that costs for demonstratives
    and photocopies of exhibits prepared for, but ultimately not used
    at, trial are categorically recoverable under section
    19
    SEGAL v. ASICS AMERICA CORPORATION
    Opinion of the Court by Cantil-Sakauye, C. J.
    1033.5(a)(13), but it correctly determined that such costs are
    recoverable in the trial court’s discretion under section
    1033.5(c)(4).   Accordingly, because the Court of Appeal’s
    disposition was correct, we affirm its judgment.5
    CANTIL-SAKAUYE, C. J.
    We Concur:
    CORRIGAN, J.
    LIU, J.
    KRUGER, J.
    GROBAN, J.
    JENKINS, J.
    IRION, J.*
    5
    We disapprove the decision in Seever v. Copley Press, Inc.,
    supra, 
    141 Cal.App.4th 1550
     to the extent it is inconsistent with
    this opinion.
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division One, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    20
    See next page for addresses and telephone numbers for counsel who
    argued in Supreme Court.
    Name of Opinion Segal v. ASICS America Corporation
    __________________________________________________________
    Procedural Posture (see XX below)
    Original Appeal
    Original Proceeding
    Review Granted (published) XX 
    50 Cal.App.5th 659
    Review Granted (unpublished)
    Rehearing Granted
    __________________________________________________________
    Opinion No. S263569
    Date Filed: January 13, 2022
    __________________________________________________________
    Court: Superior
    County: Los Angeles
    Judge: Elizabeth Allen White
    __________________________________________________________
    Counsel:
    Greenspoon Marder, James H. Turken, Michael J. Dailey, Blake L.
    Osborn; Norton Rose Fulbright and Rebecca Lawlor Calkins for
    Plaintiffs and Appellants.
    Sidley Austin, Jack S. Yeh, David R. Carpenter, Alexis Miller Buese,
    Collin P. Wedel and Rara Kang for Defendants and Respondents.
    Counsel who argued in Supreme Court (not intended for
    publication with opinion):
    Rebecca Lawlor Calkins
    Norton Rose Fulbright US LLP
    555 South Flower Street, 41st Floor
    Los Angeles, CA 90071
    (213) 892-9357
    David R. Carpenter
    Sidley Austin LLP
    555 West Fifth Street, Suite 4000
    Los Angeles, CA 90013
    (213) 896-6679
    

Document Info

Docket Number: S263569

Filed Date: 1/13/2022

Precedential Status: Precedential

Modified Date: 1/13/2022