Costs: $240,170 Out Of $322,812 In Costs Awarded In Personal Injury Action Against Defendant Were Improperly Awarded

Costs For Non-Expert Treating Physicians And Exhibit Work By Law Firm Regularly Salaried Employee Were Not Proper Subjects Of An Award.

            Plaintiff husband (and his wife to some extent) were awarded over $3.7 million in a vehicular personal injury action against defendant, with the lower court later awarding plaintiff $322,812 in costs (out of a requested $351,320).  Defendant appealed certain of the awarded cost items, and that was a good move in Kirk v. Jelly Belly Candy Co., Case No. B322612 (2d Dist., Div. 7 Nov. 15, 2022) (unpublished opinion authored by Justice Segal).

            The first cost item found to be improperly awarded was $234,740 under Code of Civil Procedure section 998 for testimonial expenses of plaintiff’s three treating physicians.  Because they were only percipient witnesses, and not designated as expert witnesses, section 998’s potential costs-shifting for expert testimony component was inapplicable.

            The second cost item found to be improperly awarded was $5,430 for model, enlargement, and exhibit photocopying work by a trial technician.  Although that can be proper where the technician is a truly independent consultant, the problem here was that the technician was a regularly salaried employee of plaintiff’s law firm such that his costs were no more awardable than if the work had been performed by an attorney or paralegal [because they are proper “routine costs”].  To the extent that El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal.App.4^th 612, 615 (2017) implied otherwise, the 2/7 DCA panel disagreed that a cost of this sort could be “incurred” when it involved labor of a regularly salaried law firm employee of a party.

            However, other cost items were sustained as proper.  Two third-party retained expert fees were fine even though they did not ultimately testify at trial.  Remote court appearance costs were okay, subject to the lower court’s discretion in finding them reasonable and necessary.  (LandWatch San Luis Obispo County v. Cambria Community Services Dist., 25 Cal.App.5^th 638, 646 (2018).)   Finally, just like messenger costs in the discretion of the court, court filing service company expenses were properly allowed.