Costs: 4/1 DCA, In A Majority Decision, Affirms That Deposition Costs Taken In Another Related Case, Not The Case Where Costs Are Claimed, Cannot Be Claimed As Costs

Dissent Found That Stipulation By The Parties To Use In Another Case Where Both Cases Were Pending Should Have Allowed Costs Recovery In The Case Where Costs Were Claimed.

            In Anderson v. Way West, Inc., Case No. D077648 (4^th Dist., Div. 1 March 14, 2022) (unpublished), majority and dissenting opinions came to different conclusions on whether deposition costs incurred in another case were recoverable in a second case where the parties stipulated that the deposition could be used in the second case. 

            Relying on In re Bauer’s Estate, 59 Cal.App.2d 161, 163, the majority determined that a “bright line” rule was preferable by which the deposition costs in a prior case should not be allowable in costs in another matter, whether concluded or still pending, and notwithstanding any stipulation to allow use of the deposition in another matter.

            The dissent saw things differently.  Based on a distinction in Bauer’s that the prior case had actually concluded, the dissent would fashion this rule:  (1) when the parties agree after a case concludes that a previously taken deposition can be used in another proceeding, that agreement does not change the fact that the costs of the deposition were incurred in the first action alone (so no costs could be imposed); and (2) when the parties agree before taking a deposition that it will serve as discovery in two or more pending cases, the costs of that deposition are incurred in each of those actions (costs can be imposed).