Second District, Division 5 Also Finds Discovery Referee, Mediation, and Computerized Document Control/Exhibit Costs Can Be Discretionarily Awarded.
In Henderson v. County of Los Angeles, Case No. B209871 (2d Dist., Div. 5 Apr. 29, 2009) (unpublished), defendant sheriff prevailed after the trial court directed a verdict on certain claims in a civil rights excessive force case. Certain costs were awarded to the prevailing sheriff. Plaintiff appealed, with the Second District penning an interesting decision on some narrow routine costs issues—affirming in the process.
Defendant sheriff was a prevailing party because plaintiff did not obtain any relief against him. (Code Civ. Proc., sec. 1032(a)(4).) However, plaintiff argued that defendant did not prevail under (a)(4) based on the “unity of interest” doctrine: sheriff’s interests were unified with the other deputies in that they were represented by the same attorney, filed a joint answer, conducted joint discovery, and joined in the same motions (given that the court directed verdicts on some claims and the jury deadlocked on a verdict on other claims as to the other defendants). Plaintiff argued, therefore, that costs had to be apportioned. Not so, said the Court of Appeal. The “unity of interest” doctrine only confers discretion upon the trial court to allow or disallow a routine costs award to a prevailing defendant under this doctrine, with nothing requiring the lower court to apportion costs. (See, e.g., Wakefield v. Bohlin, 145 Cal.App.4th 963, 976-977 (2006); Textron Financial Corp. v. National Union Fire Ins. Co., 118 Cal.App.4th 1061, 1075 (2004); Slavin v. Fink, 25 Cal.App.4th 722, 726 n. 2 (1994); Webber v. Inland Empire Investments, 74 Cal.App.4th 884, 920 (1999); Smith v. Circle P. Ranch Co., 87 Cal.App.3d 267, 271-272 (1978).) Because the trial court could conclude that defendant sheriff had individual interests apart from the other defendants, there was no abuse of discretion in failing to apportion costs.
Plaintiff also challenged the trial court awarding costs for these items: a discovery referee; mediation; computerized document control during trial; storing exhibits; and an on-site technician and equipment utilized in presenting exhibits to the jury. Even though not listed in enumerated costs, the trial court does have discretion under Code of Civil Procedure section 1033.5(c)(4) to award these items as costs although not specifically mentioned in other subsections. The lower court in Henderson did not err in awarding such items as discretionary costs. The appellate panel even went on to list several cases that authorized discretionary awards of these or analogous items:
- Referee fees – Winston Square Homeowner’s Assn. v. Centex West, 213 Cal.App.3d 282, 293 (1989); Trend Homes, Inc. v. Superior Court, 131 Cal.App.4th 950, 961-962 (2005); DeBlase v. Superior Court, 41 Cal.App.4th 1279, 1285 (1996); Most Worshipful Sons of Light Grand Lodge v. Sons of Light Lodge No. 9, 140 Cal.App.2d 833, 834-835 (1956);
- Mediation fees – Gibson v. Bobroff, 49 Cal.App.4th 1202, 1209, 1209 n. 7 (1996);
- Models/blowups as well as labor to support the displays to the jury (analogized to the computerized document/exhibit expenses)—El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., 150 Cal.App.4th 612, 616-620 (2007); contra, Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4th 1095, 1102-1106 (1995) [not followed by El Dorado Meat Co.].