Judges can award costs for exhibits not used in trial

Judges have discretion to award or deny costs for exhibits that were prepared for a trial but were not used, the California Supreme Court ruled Thursday.

In an opinion written by Chief Justice Tani Cantil-Sakauye, the unanimous court said it was resolving a conflict among courts of appeal "regarding whether costs incurred in preparing photocopies of exhibits and demonstrative aids for trial are recoverable under [Code of Civil Procedure section 1033.5] even if they were not ultimately used at trial."

Cantil-Sakauye wrote that "costs related to unused photocopies of trial exhibits and 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)." Segal v. ASICS America Corporation et al., 2022 DJDAR 477 (Cal., filed July 27, 2020).

"I don't think this is going to have any impact on our practice," Jay Edelson, founder and CEO of Edelson PC, said in a phone interview Thursday. "I think these types of decisions hurt everyday people. It's just another obstacle to filing suit. I think it could be intimidating for smaller plaintiff firms that aren't well financed. ... It's definitely an anti-consumer ruling. That's concerning especially coming from the California Supreme Court."

Meyers Nave principal Deborah J. Fox in Los Angeles said the ruling is unlikely to lead to unnecessary exhibits being prepared. "When you prepare for trial, you're going to prepare all the exhibits you think you're going to need. You're not going to prepare exhibits just to recover costs. I certainly wouldn't anticipate ever doing that."

Edelson agreed.

"This wouldn't incentivize defendants to drive up costs unnecessarily because all that they're doing if they end up winning the case and these costs are apportioned to the plaintiffs, is they come out neutral. So why would they have any incentive to spend $100,000 more in the hopes that they get it back? That doesn't make any sense to me," he said.

The underlying case was a fraud claim accusing a company of withholding promised product and marketing support from retail stores. The plaintiffs lost the case and it moved to the defendant's fight to recover costs. Size It LLC v. ASICS America Corp. et al., BC597769, (L.A. Sup. Ct., filed Oct. 14, 2015).

"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," Cantil-Sakauye wrote.

The 2nd District Court of Appeal panel found that "costs associated with unused demonstratives and photocopies of trial exhibits are recoverable," which disagreed with two prior appellate decisions: Seever v. Copley Press, Inc. (2006) and Ladas v. California State Auto. Assn. (1993). Size It, LLC et al. v. Asics America Corporation et al., B299184, (2nd Dist. Ct. Appeal, filed July 17, 2019).

The Supreme Court's opinion was an affirmation of the 2nd District Court of Appeal's ruling in Size It v. ASICS America, but on slightly narrower grounds.