Costs: Costs Related To Noticed, But Untaken, Depositions And Service Related Thereto Are Not Subject To A Blanket Exception Under The Routine Costs Statutes

Rather, The Test Is Whether Whey Were Reasonably Necessary To The Litigation At The Time Incurred.

            In Garcia v. Tempur-Pedic North America, LLC, Case No. E079859 (4^th Dist., Div. 2 Jan. 8, 2024) (published), after dismissal by plaintiff of an initial suit against a manufacturer for an allegedly defective mattress, manufacturer moved for costs against plaintiff, with the lower court awarding routine costs for noticed, but untaken depositions, for obtaining a certificate of nonappearance, for a last minute cancellation of a deposition by plaintiff’s counsel, for noticing a deposition of a fact witness who subsequently died, and for service of process costs associated with the noticed depositions.  The 4/2 DCA affirmed, rejecting the notion that such costs were subject to a blanket exception; rather, the test was whether they were reasonably necessary to the litigation at the time incurred--“[h]indsight is no guide here.”  Prior to dismissal, these costs were reasonably incurred by manufacturer to properly depose fact and nonretained expert witnesses, even if the depositions did not occur for reasons not forseeable by manufacturer.