No Categorical Grant On This Costs Category, But Discretionary Call For Lower Court.
In Segal v. ASICS America Corp., Case No. S263569 (Cal. Supreme Court Jan. 13, 2022) (published), the California Supreme Court confronted a split on appellate thinking on whether trial exhibit photocopies and demonstrative aids, not used during the trial, can be awarded as routine costs under Code of Civil Procedure section 1033.5. Although determining that these costs are not categorically recoverable under section 1033.5(a)(13) (because the unused materials were not helpful to the trier of fact because they were never presented before the trier of fact), they were not expressly prohibited under section 1033.5(b). However, that did mean that they could be discretionarily recovered as costs under section 1033.5(c)(4) if they are determined by the lower court to be reasonably necessary to the litigation. Our high state court also indicated that the same discretionary rule would apply to exhibits or materials found to be inadmissible at the trial level. Again, a trial judge’s discretion will be key on the recovery of these types of claimed costs. The opinion was authored by Chief Justice Cantil-Sakauye.
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