CALIFORNIA ATTORNEY'S FEES

Costs, Section 998, Special Fee Shifting Statutes: No Abuse Of Discretion In Attorney Fees And Costs Award Of $1,454,938.70 Against One Of Three Defendants, Without Apportionment, In Wrongful Death Case

Apportionment Of Attorney Fees Was Not Feasible As Plaintiffs’ Efforts Against The Defendants Were Inextricably Intertwined,  And The Case Could Not Have Been Presented Without Significant Expert Testimony To Determine Who Was Legally Responsible.

            In Hatcher v. Powell, Case No. B302730 (2d Dist., Div. 6 September 27, 2021) (unpublished), four defendants were sued in a consolidated wrongful death action following a single-car accident in Ventura County.  One of the defendants was the driver of the car, who lost control while attempting a left curve on a country road at almost twice the posted speed limit, in the dark of night, and with a blood alcohol level of .19 percent according to his blood test.  The other three defendants were a communications company, the construction company it had hired, and Ventura County.  Driver had hit construction equipment stored off the shoulder of the road when he lost control – killing two of his three passengers and injuring the third.   County settled out of the case, but the remaining defendants proceeded to trial where the jury returned a unanimous special verdict finding driver’s negligence was a substantial factor, but the negligence of communications and construction companies was not a substantial factor, in causing harm to the plaintiffs.  All told, according to our calculations, the jury awarded non-economic damages against driver of roughly $7.75 million and $455,000 in economic damages.  $1.9 million of that was awarded to the parents of one of the deceased passengers – parents who had made driver an unaccepted Code Civ. Proc. § 998 offer to settle for $500,000 each.

            Those parents then moved post-judgment for costs of $1,458,588.72, which included $544,493.80 in prejudgment interest, pursuant to Civ. Code § 3291 and Code Civ. Proc. § 998 (prejudgment interest running from the date of § 998 offer not accepted by defendant), and $760,000 in attorney’s fees pursuant to Code Civ. Proc. § 1021.4 (a fee-shifting statute allowing trial courts to award reasonable attorney fees to a prevailing plaintiff where the action for damages is based upon defendant’s commission of a felony offense for which that defendant has been convicted).  After minor deductions to the jury fees and for expert fees incurred prior to the § 998 offer, the trial court awarded $1,454,938.70 in fees and costs against driver.

            Although not denying liability, driver appealed – claiming the trial court abused its discretion in the amount of its award of attorney’s fees and costs – and argued communications and construction companies bore some responsibility.  However, the 2/6 DCA agreed with the trial court’s conclusions.  It was not feasible to apportion fees amongst the defendants because plaintiffs’ efforts against the defendants were inextricably intertwined, and the case could not have been presented without significant expert testimony to determine who was legally responsible.  The trial court had properly considered the time spent, reasonable hourly rates, complexity of the issues, success achieved, and skill of the attorneys in awarding fees and costs that were proportionate to the judgment obtained. (Serrano v. Priest, 20 Cal.3d 25, 48- 49 (1977); Harman v. City and County of San Francisco, 158 Cal.App.4th 407, 419 (2007).)

Common Fund, Costs: Trope Limitation Prevents Self-Represented Attorney From Obtaining Fees Under Common Fund Theory, But Routine Costs Are Awardable

The 2/6 DCA, in a scholarly opinion written by Justice Yegan, faced the questions of whether a self-represented attorney, who was also the winning party, could seek recovery of attorney’s fees and costs under the nonstatutory common fund theory.  Different answers were the conclusions on the two issues.

            In Leiper v. Gallegos, Case No. B309986 (2d Dist., Div. 6 Sept. 23, 2021) (published), the appellate court agreed with the trial court that the self-represented attorney, under the Trope limitation (although it was an open issue), could not recover almost $96,000 in requested fees in a common fund case.  The reviewing court followed the holding of Bruno v. Bell, 91 Cal.App.3d 776, 783 (1990) to reach the result on fees with respect to pro se attorneys.    However, with respect to costs of around $3,000 (excluding attorney’s fees), the 2/6 DCA panel found no convincing reason why they could not be awarded given a pro se attorney could obtain costs under the routine costs CCP provisions. 

Costs: No Oral Hearing Required On Appellate Costs Motion

Nice Dissection Of Appellate Routine Costs, Which Were Allowed.

            No reason for us to discuss in detail the case of Pacheco v. Tuttle, Case No. B302508 (2d Dist., Div. 3 Sept. 22, 2021) (unpublished), unless trial and appellate practitioners want to dive in the weeds, given that an appellate costs award of $1,627 was at issue—we kid you not!

            The post-worthy takeaways are these:  (1) no hearing is required on a motion to tax costs (different with respect to a pretrial attachment or summary judgment motion); (2) defendant bears the burden of showing a costs item was unreasonable after plaintiff provided a verified costs memorandum which is prima facie evidence on the issue; and (3) nothing showed that a governmental entity was limited to a 15 cent per page charge for printing/copying appellate briefs. 

Costs, Prevailing Party: Where Neither A Plaintiff Nor A Cross-Complainant Obtains Any Relief, Defendant Is The Prevailing Party For Costs, Absent A Costs Waiver

May Sound Quirky, But It Is The Law!

            In Bernstein v. Sebring, Case No. C088375 (3d Dist. Sept. 21, 2021) (unpublished), plaintiff/cross-defendant and defendant/cross-complainant partially settled some claims (where costs were waived) but proceeded to trial on some remaining claims.  The trial judge ultimately dismissed plaintiff’s complaint, and defendant voluntarily dismissed his remaining cross-claim.  The trial judge decided plaintiff, as a cross-defendant, was the prevailing party entitled to routine costs.  The Third District reversed.  Because neither party obtained any relief, the defendant was the prevailing party, with plaintiff as a cross-defendant not counting in the prevailing party analysis.  (McLarand, Vasequez & Partners, Inc. v. Downey Savings & Loan Assn., 231 Cal.App.3d 1450, 1454-1455 (1991).)  So, in a reversal of fortune, defendant was the prevailing party entitled to costs.  (Building Maintenance Service Co. v. AIL Systems, Inc., 55 Cal.App.4^th 1014, 1025 (1997).) 

Costs, Deadlines, Experts, Section 998: 4/2 DCA Dismisses Defendants’ Cross-Appeal Of Trial Court’s Order Granting Plaintiff’s Motion To Tax Majority Of $139,951.97 In Costs And Fees Sought By Defendants Under § 998

Defendants’ Cross-Appeal Was Untimely, And A Separate Appeal, Not A Cross-Appeal, Was Required For Challenging Trial Court’s Order As It Related To Defendants’ Request For Expert Witness Fees.

            In Ramirez v. Barajas, Case No. E071558 (4^th Dist., Div. 2 September 13, 2021) (unpublished), personal injury plaintiff, suing defendants for $1.4 million in damages, rejected defendants’ Code Civ. Proc., § 998 settlement offer of $350,000.  After plaintiff failed to beat that offer at trial (being awarded only $58,311.77, a result plaintiff appealed), defendants moved, under § 998, for costs and fees of $139,951.97 – which included $111,74.88 in expert witness fees.  However, because the trial court found defendants’ request to be deficient in that it failed to identify the date costs were incurred – whether pre or post-offer – it granted in its entirety plaintiff’s motion to tax and awarded defendants only $9,284.39 in ordinary litigation costs. 

            Defendants cross-appealed, but the 4/2 DCA dismissed their cross-appeal due to lack of jurisdiction. 

            First, defendants’ cross-appeal was untimely.  Under California Rules of Court, Rule 8.108(g), the deadline for the filing of defendants’ cross-appeal was within 20 days of the superior court serving them with notice of plaintiff’s appeal.  Defendants filed their notice of cross-appeal 21 days too late.

            Second, plaintiff’s notice of appeal from the judgment did not create appellate jurisdiction over the trial court’s ruling on defendants’ request for expert witness fees under § 998 – which accounted for the majority of fees sought by defendants.  A cross-appeal may challenge only the same judgment challenged by the underlying appeal, and “[a]n award of expert witness fees [under] section 998 is not incidental to the judgment but is instead a separately litigated issue” requiring a separate notice of appeal. (Fish v. Guevara, 12 Cal.App.4th 142, 148 (1993).)

Common Fund, Costs, Special Fee Shifting Statutes: 4/3 DCA Affirms Large Part Of Trial Judge’s Fee And Costs Rulings In Financial Elder Abuse/Derivative Litigation

Hornet Nest Of Fees And Costs Issues Resolved By Appellate Court.

            We knew right away that Acting Presiding Justice Bedsworth penned Horowitz v. Brown, Case No. G057412 (4^th Dist., Div. 3 Aug. 30, 2021) (unpublished) based on his distinctive writing style.  The appellate court faced a virtual hornet nest of fees and costs issues, with us distilling the ones that we saw of most importance.

            What happened here is that plaintiff was found to be a victim of financial elder abuse and gained some derivative recovery for an entity, but only against some defendants.  Plaintiff was 81 years old and got involved in making investments with her ex-husband’s real estate joint venture partner, which you can likely see led to the litigation which spawned over 5 years and 51 days of a trial.  In the end, plaintiff prevailed on financial elder abuse claims against some defendants and obtained some derivative benefit for an entity, with many of them being in the millions of dollars.  The case resulted in multiple motions for fees and costs, with plaintiff being awarded about $1.411 million in fees against four defendants, nothing in fees for gaining a derivative liability award (because she was advancing her personal interest over that of an entity), and all kinds of split decisions on routine costs. 

            The 4/3 DCA affirmed in major respects, but it reversed and remanded on some issues—the major ones which we highlight now.

            The appellate court agreed that plaintiff primarily recovered against many defendants on a financial elder abuse claim, which carries a prevailing party plaintiff fee entitlement.  Despite some overlap on contractual claims under a partnership agreement, the 4/3 DCA panel found that the financial elder abuse fee-shifting provision had primacy even though there was just a liability finding given that some of the defendants paid the damages earlier—with the 4/3 DCA agreeing with the consistent analysis in Arace v. Medico Investments, LLC, 48 Cal.App.5^th 977, 983 (2020) [a 4/2 DCA opinion].

            Next, some prevailing defendants were entitled to routine prevailing party costs under CCP § 1032, with the financial elder abuse shifting provision not dictating otherwise.  After all, plaintiff only recovered money for an entity derivatively, not herself personally.  (Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4^th 985, 990-991 (1998).)

            However, the reviewing court did remand on whether plaintiff could obtain recovery of denied fees on the derivative claim based on a common fund/substantial benefit doctrine.  After all, in the end, she did bear the fees to obtain the derivative award, with it being unfair to say that she should bear the costs when she did not entirely benefit with most of the advantage going to the entity upon whose behalf she was suing.

            Finally, because various defendants were involved, the costs awards had to be remanded to make sure there was an apportionment as to separate defendants with respect to jointly incurred defense costs.  (Charton v. Harkey, 247 Cal.App.4^th 730, 743-744 (2016).)

Costs, Deadlines, Fee Clause Interpretation, Lodestar: L.A. Groundwater Case Fee And Costs Awards Remanded For A Revisit By The Fifth District

Variety Of Costs, Fee Entitlement, And Lodestar Issues Explored In This Unpublished Opinion.

            Antelope Valley Groundwater Cases, Case No. F083138 (5^th Dist. Aug. 24, 2021) (unpublished) was a Los Angeles-venued case which produced a global settlement complete with a provision for certain parties to bear attorney’s fees and costs by class counsel.  Class counsel sought to recover $3,348,160 in attorney’s and paralegal fees (4,538.8 hours at $720 per hour for attorneys; 679.5 hours at $110 or $125 per hour for paralegals).  However, the trial judge awarded class counsel $2,269,400 in attorney’s fees and $80,224 in paralegal fees, reducing the attorney requested hourly rate from $720 to $500 per hour.  He also allocated fees among different parties and rejected two parties’ attempts to pay the awards out over time under Government Code sections 984 and 970.6.  He denied a 2.5 positive enhancement request.  The trial judge also taxed over $24,000 in routine costs requested by class counsel, triggering an appeal by the class.

            The Fifth District (although based in Fresno, not Los Angeles, but assigned the case on appeal for neutrality reasons) reversed and remanded with some specific instructions.  With respect to fees, the appellate panel initially determined that the settlement agreement did authorize fee/costs entitlement and then found that the trial judge’s reasoning on the lodestar was unclear, especially as to why the requested hourly rate was discounted downward from $720 and with a “Great Recession” lower rate rationale not explaining why higher rates were not justified from when it ended (2010 going forward).  Equally salient was the fact the lodestar could not be diminished solely or primarily because a governmental entity was the party with fee/costs exposure.  But the lower court did properly allocate fee/costs recovery among some parties and correctly denied the periodic payment requests because a fees/costs judgment was not a tort judgment against a public entity under section 984 and the requesting entities did not show that the L.A. County Board of Supervisors passed a hardship ordinance for purposes of satisfying section 970.6.  Finally, on the routine cost issues, class counsel did not have to use Judicial Council costs memorandum forms (they are optional only), the trial judge impliedly allowed counsel more time to file the costs memorandum, and there were arithmetic discrepancies which the appellate court could not decipher—sending all of this back for a re-do, including a relook at the enhancement request.               

Appeal Sanctions, Costs: 2/4 DCA Denies Requests From Prevailing Party In A Writ Proceeding For Attorney Fees To Be Included As Part Of Costs Award And For An Award Of Fees As A Sanction Against Defeated Party

Attorney Fees Are Not Included As Recoverable Costs Under California Rules Of Court, Rules 8.493(b) And 8.278(d), And A Passing Reference To An Award Of Fees As Sanctions, With No Showing Of Justification For Sanctions, Does Not Qualify As A Motion For Sanctions Under Rule 8.492(a).

            In Harden v. Superior Court, Case No. B311738 (2d Dist., Div. 4 August 19, 2021) (unpublished), defendant prevailing in a petition for writ of mandate, after the trial court declined to comply with the 2/4 DCA’s alternative writ, requested that attorney fees be included as part of the costs he was entitled to under California Rules of Court, rule 8.493(a).  Because attorney fees are not included in the list of recoverable costs under rules 8.493(b) and 8.278(d), and defendant provided no other basis for a fees award, the 2/4 DCA denied his request.  Additionally, the panel declined to consider defendant’s passing reference to an award of fees as sanctions being issued against plaintiff because the reference did not qualify as a motion for sanctions under rule 8.492(a), and defendant had not shown justification for an award of fees as a sanction.

Civil Rights, Costs: California Supreme Court Holds That Government Code Section 12965(b) Applies To Costs On Appeal And Vacates Award Of Costs On Appeal To Prevailing FEHA Defendant

The Court Of Appeal Made No Findings As To Whether FEHA Plaintiff’s Claims Were Objectively Groundless.

            In our Year In Review post of the top 30 decisions in 2020, we included as No. 22 the case of Ducksworth v. Tri-Modal Distribution Services, 47 Cal.App.5^th 532 which had been granted review by the California Supreme Court for determination as to whether it was proper for the Court of Appeal to award costs on appeal under CRC, Rule 8.278 against an unsuccessful FEHA claimant in the absence of a finding that the underlying claims were objectively frivolous. 

            That question was answered in Pollock v. Tri-Modal Distribution Services, Inc., Case No. S262699 (Cal. Supreme Court July 26, 2021) with the Cal. Supreme Court’s holding that Gov. Code § 12965(b) applies to costs on appeal.  In a 7-0 opinion authored by Justice Liu, the Cal. Supreme Court concluded that an appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff’s action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so.

            Additionally, the Court of Appeal’s judgment affirming the trial court’s summary judgment order on a statute of limitations administrative claims issue was reversed, with remand back to the Court of Appeal for the purpose of being remanded back to the trial court for further proceedings – with the Cal. Supreme Court determining that both the trial court and Court of Appeal applied the wrong standard in determining when the statute of limitations began to run.

Appealability, Costs, Discovery: Denial Of $1.1 Million For Electronic Discovery Costs Reversed Because Lower Court Seemed To Indicate No Discretion On Awarding Them

Modern Trend Is To Recognize E-Discovery Recoupment Costs As Long As They Are Justified.

            Ya know, times change, technology changes, and jurisprudence changes.  Although unpublished, City of Los Angeles v. PricewaterhouseCoopers, LLP, Case No. B305583 (2d Dist., Div. 5 July 8, 2021) (unpublished) shows how electronic discovery costs may be awardable, if justified, based on  evolving technological changes from an early appellate court decision which was adverse to recovery of these costs.  (We do not discuss the affirmance of some substantial costs reductions for out-of-town attorneys traveling and attending depositions, because the reductions were in order given that the same law firm had Los Angeles attorneys who could attend rather than New York travelling attorneys.  If you need support for these reductions, you can read the decision.)

            What happened here is that the City of Los Angeles voluntarily dismissed a suit, with defendant moving to recover about $1.1 million in electronic discovery costs, mainly for processing/loading, hosting, and producing documents.  The lower court denied all the requested costs based on an older decision in Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4^th 1095, 1103-1104 (1995), deciding that routine costs in this area should be denied in an earlier time where the technology costs were substantial and the rationale for granting them was more attenuated.  Much has changed with technology since Science Applications, given that subsequent decisions generally show a proclivity to award these electronic discovery costs as long as they are supported as being necessary and reasonable in nature.  (See, e.g., El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal.App.4^th 612, 620 (2007); Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 990-991 (2013); Hooked Media Group, Inc. v. Apple Inc., 55 Cal.App.5^th 323, 338-339, 351 (2020).)  Because these costs are not prohibited and can be awarded in the trial court’s discretion, the denial based on an outright ban had to be reversed and remanded for another look. 

            BLOG MILEAGE TIME—Although there is a split in thinking, this appellate panel also sided with the view that an order taxing routine costs is appealable as a post-trial order, following Mesa Shopping Center-East, LLC v. O Hill, 232 Cal.App.4^th 890, 898 (2014) and Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018), but not following the contrary decision in Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013).  The panel found its conclusion was consistent with the treatment of collateral final orders.  (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4^th 1075, 1083 (2011).) 

Costs, Deadlines, Fee Clause Interpretation: Lender Defending Against Borrower’s Attempts To Enjoin Eventual Nonjudicial Foreclosure Properly Awarded $9.235 Million In Fees

However, Costs Award Of $332,704.20 Reversed For Failure To Timely File A Costs Memorandum, Although The Appellate Court Did Indicate Lower Court Could Entertain CCP § 473 Default Motion Based On Surprise If Lender Wanted To Renew Costs Issue.

            This next case, Rincon EV Realty LLC v. CP III Rincon Towers, Inc., Case Nos. A155104/A155284 (1^st Dist., Div. 4 June 10, 2021) (unpublished), is an interesting borrower/lender case which has yo-yoed between lower and appellate courts for several years after the lender eventually nonjudicially foreclosed on Rincon Towers (a San Francisco apartment complex).  However, lender did prevail in an action initiated by borrower to forestall foreclosure, with lender then seeking substantial attorney’s fees and costs under a Loan Agreement clause.  After an initial reversal and remand, lender sought $12.2 million in fees and costs, with the lower court awarding $9,235,712.93 in fees, but with it deferring a cost ruling until a new cost memorandum was filed.  Lender did that, claiming $909,548.03 in costs, $357,603.06 in statutory fees and $551,944.97 in costs awardable under the Loan Agreement.  The lower court only awarded statutory costs, reducing the request down to $332,704.30 as far as a court order.  Borrower appealed.

            Borrower argued that lender could not obtain contractual fees because the loan was non-recourse; however, the problem here was that the Loan Agreement contractual fees clause did apply to situations where the lender had to defend against a borrower’s action, rather than commence a lender action or suit against borrower seeking a monetary judgment.  Beyond that, the contractual “proceeding” language did not preclude lender from bringing a fees motion, because a “proceeding” was more akin to an “action” that lender did not commence.  Borrower next argued that the fee award was precluded by anti-deficiency California borrower protections, but that contention was not successful because borrower brought an unmeritorious suit to which lender had to respond—an action which did not implicate a lender attempting to renege on a non-recourse loan.  (See Jones v. Union Bank of California, 127 Cal.App.4^th 542, 547-548 (2005); Passanisi v. Merit-McBride Realtors, Inc., 190 Cal.App.3d 1496, 1509 (1987).)  So, the substantial fee award was affirmed on appeal.

            That brought the appellate court to the costs award, which was a little tricker to resolve.  The 1/4 DCA agreed that the costs memorandum was untimely filed, past the 15-day notice of entry filing deadline even though there were some issues still pending in the appellate court—the best measure was to protectively file it, something lender did not do by quite a bit of time.  However, that did not end the matter.   The appellate court was sympathetic to the fact that the complex procedural context of the case might have been a surprise to the lender such that a CCP § 473 discretionary motion to allow the filing of the belated costs memorandum might be successful.  But it did not want to do that, reversing the smaller component of the costs award (the larger component were damages, and rejected because they were not pled and were not subject to damages proof below) and remanding to the lower court to decide if discretionary default relief should be granted.  So, there might be hope on the cost component for lender.

Costs: SCOTUS Determines That Circuit Courts, Not District Judges Absent A Reference, Determine Whether To Deny Or Reduce Taxation Of Appellate Costs

Brightline Rule Adopted By SCOTUS On This Issue.

            In City of San Antonio v. Hotels.com, L.P., 593 U.S. __, Case No. 20-334 (U.S. May 27, 2021), the U.S. Supreme Court interpreted Federal Rule of Appellate Procedure 39 to vest in the circuit courts whether certain appellate costs would be denied or reduced.  San Antonio argued that the district court had discretion to do that, but SCOTUS rejected this approach by adopting a “bright-line” approach that the appellate court determines what is to be awarded, unless it refers it to the district judge for determination.  The case involved a supersedeas bond determination of $2.2 million, with the appellate court’s determination being dispositive and with the district court not being able to alter that determination. 

Costs, Probate: $1,910.84 Costs Award In Indispensable Estate Affirmed As Against Two Brothers

Appellate Court Was Peeved At Appeal Of Costs Award Under $2,000.

            Bilaver v. Bilaver, Case No. B296881 (2d Dist., Div. 3 Apr. 27, 2021) (unpublished) is another reality check where two brothers appealed a $1,910.84 costs award in favor of an indispensable party probate estate.  Because it was an indispensable party, the estate did not have to pay a filing fee to claim certain specified costs.  The estate’s costs for exhibit copies,  court reporter fees, and costs of publication in related, separate litigation were properly allowed, with no abuse of discretion shown.  The appellate court seem exasperated that an appeal was undertaken for costs under $2,000, understandably so!

Costs, Prevailing Party: No Abuse Of Discretion In Trial Court’s Denial Of Prevailing Party Fees And Determination That There Was No Prevailing Party In Mixed Results Action

It Is Well Within The Trial Court’s Discretion To Make A Determination That Neither Party Prevailed Sufficiently To Justify An Award Of Attorney Fees.

            In Ayala Boring v. HPS Mechanical, Case No. D076054 (4^th Dist., Div. 1 March 19, 2021) (unpublished) – which resulted in two separate appeals – contractor defendant entered into a contract with the City of San Diego to work on a trunk sewer project, and subcontracted work to plaintiff subcontractor – an underground pipeline boring contractor – to install casings and sewer lines at two locations under Interstate 8.  When one of the locations revealed conditions requiring additional unanticipated work, City, contractor and subcontractor agreed to a change order to pay subcontractor an additional $203,000 for the extra work.  However, when lanes of the I-8 began heaving in the area subcontractor was performing work, contractor decided to withhold payment of the $203,000 until subcontractor repaired the heaving damage.  Because subcontractor refused to make the repairs, contractor made them at the cost of $199,559.34.

            Subcontractor sued contractor and its bonding companies for breach of contract – seeking $451,113.98 in compensatory damages for payment of the $203,000 and other amounts it alleged contractor wrongfully withheld – and later amended to add a common count for money had and received, and reduced damages to $203,000 at trial.  Contractor cross-complained for breach of contract – seeking reimbursement of the costs to repair the heaving damage and for indemnity re costs, expenses, attorney and expert witness fees in connection with the heave and resulting dispute. 

            The parties obtained mixed results at trial – with the jury returning special verdicts in favor of subcontractor on its common count cause of action and on contractor’s breach of contract claim, and in favor of contractor on subcontractor’s breach of contract claim.  Ultimately, subcontractor was awarded $249,470 in damages by the jury, and another $94,733.33 in prejudgment interest, $227,945 in prevailing party fees, and $32,961.81 in costs on its complaint and for defeating contractor’s cross-complaint by the trial court.  The first appeal followed and the 4/1 DCA reversed subcontractor’s wins – remanding for further proceedings, and concluding contractor was entitled to its costs on appeal.

            On remand, contractor sought $579,838.50 in prevailing party fees pursuant to the fee provision in the parties’ subcontract.  The trial court denied – finding there was no prevailing party on the contract claims, but awarded contractor $205,095.63 in costs and disbursements which included various trial costs, costs on appeal, surety bond premiums, and expert witness, mediation and reporter’s fees – results affirmed on the parties’ second appeal, with exception to reversal of $55,468 in expert witness fees and $2,280 in mediation fees incurred for a different case.

            There was no abuse of discretion in the trial court’s determination that there was no prevailing party as neither party achieved complete victory on all of the contract claims.  As to the reversal of expert witness fees awarded to contractor, there was no statutory prevailing party basis, pursuant to Code Civ. Proc. § 1033.5(a)(8), for the trial court’s award.  Further, there was no basis for entitlement under the parties’ fees/costs provision as there was no prevailing party.  Finally, as to the reversed mediation fees, the fees were incurred for mediation sessions in a different case months after the jury trial in this case.

Civil Rights, Costs, Special Fee-Shifting Statutes: Ninth Circuit Vacates And Remands $5,962.11 Costs Award To Defendant Landlord Prevailing On Summary Judgment Against Plaintiff Tenant Claiming Race And Disability Discrimination

In So Doing, The Ninth Circuit Joins The First, Second, Fourth, and Fifth Circuits In Holding That The Christiansburg Standard Applies To The Award Of Attorney’s Fees And Costs Under The Fair Housing Act.

            The U.S. Supreme Court, in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), held that, under the fee-shifting provision of Title VII of the Civil Rights Act (42 U.S.C. § 2000e-5(k)), attorney’s fees should be awarded to a prevailing defendant only if the plaintiff’s claim was frivolous, unreasonable or without foundation.

            In Rodney Green, Sr. v. Mercy Housing, Inc., Case Nos. 20-15134/20-15358 (9^th Cir. March 19, 2021) (published), plaintiff tenant appealed the district court’s granting of summary judgment to defendant landlord and subsequent award of $5,962.11 in costs.  The Ninth Circuit reversed and remanded in part the grant of summary judgment in a separate memorandum opinion.

            As to the costs award, plaintiff  - with claims of racial and disability discrimination in violation of the Fair Housing Act and the California Fair Employment and Housing Act – argued that the district court abused its discretion in awarding costs to defendant without applying the Christiansburg standard and making a determination as to whether plaintiff’s claims were frivolous, unreasonable or groundless.  The Ninth Circuit agreed – joining the First, Second, Fourth, and Fifth Circuits – in holding that the Christiansburg standard applies to the FHA, where the danger of chilling civil rights enforcement based on the risk of incurring costs even in the strongest of claims is as equally present in a tenant’s Fair Housing case as it is in an employee’s Title VII case.

            Contrary to defendant’s claim that the fee-shifting provisions of the FHA and ADA are distinguishable, the Ninth Circuit found that costs are treated as parallel to – rather than as a subset of – attorney’s fees under both the FHA and ADA. (Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001).) 

Allocation, Civil Rights, Costs, Employment: Former Employer Properly Was Denied Attorney’s Fees Where FEHA Case Had Some Substance

However, 2/3 DCA Follows Roman Opinion On When To Award Costs On Non-FEHA Claims.

            In Chevreaux v. Long Beach Memorial Medical Center, Case Nos. B291268/B292937 (2d Dist., Div. 3 Feb. 24, 2021) (unpublished), a jury returned a defense verdict in favor of a former employer on a non-FEHA, Tameny retaliation claim after she dismissed two FEHA claims (age discrimination and a CFCA violation) on the eve of trial.   The lower court subsequently denied attorney’s fees to defendant after finding the dismissed FEHA claims were not baseless.  The trial judge also granted plaintiff’s motion to tax costs finding he could not award any costs to the defense because it did not apportion the costs expended to defend non-FEHA claims from those attributable to its defense of her FEHA claims, as required by the 2/7 DCA’s decision in Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1059 (2015). 

            The 2/3 DCA mainly affirmed, but it reversed and remanded to see if the defense might be awarded some routine costs for jury fees, court reporter fees, and trial exhibits.  It agreed that there was enough evidence to show an inference of age discrimination because plaintiff, aged 62, was replaced with women who were 50 and 44 even though the claims were dismissed before trial.  This Division also agreed with the reasoning in Roman, which allows a lower court discretion to see if non-FEHA claims did not overlap so as to be able to apportion out costs not related to the nonfrivolous FEHA claims.  Because the jury only considered one non-FEHA claim, it was fair game for the trial judge make factual determinations as far as awarding jury fees, court reporter fees, and trial exhibit costs in favor of the defense (considering whether the costs were reasonable, necessary, and whether there was an agreement to split court reporter fees). 

Costs, Employment: Trial Court’s Costs Award To Defendant Prevailing Against FEHA And DJOA Claims Proper Where The Costs Were Awarded Only For The DJOA Claims

Costs May Not Be Awarded To Prevailing FEHA Defendants Unless Plaintiff’s Action Was Frivolous, Unreasonable, Or Groundless When Brought Or Continued, But A Trial Court May Award Costs To A Prevailing Defendant For Non-FEHA Claims Litigated With FEHA Claims.

            In Jones v. Quality Coast, Case No. B297425 (2d Dist., Div.5 February 22, 2021) (unpublished), plaintiff had worked as a janitor for approximately 11 years at an air traffic control facility administered by the FAA – being employed by various janitorial companies which contracted with the FAA during those years.  When defendant became the janitorial service provider, it did not hire plaintiff.

            Plaintiff sued – claiming race and gender discrimination pursuant to FEHA, and a violation of the Displaced Janitor Opportunity Act (DJOA) (Labor Code § 1060 et seq.) which obligated defendant to hire “employees” of the predecessor company for a 60-day period following termination of predecessor company’s contract with the FAA. 

            When plaintiff’s FEHA claims were defeated by jury verdict, and plaintiff advised the trial court that he had presented at trial all of the evidence he would present in the DJOA claim, defendant successfully moved for judgment on the basis that plaintiff was a supervisor, not an employee as defined by the DJOA, and, therefore, not entitled to protection under the DJOA.  Additionally, the trial court determined defendant to be the prevailing party and awarded it the costs it incurred in the DJOA claim.

            Plaintiff appealed, but the appellate panel affirmed.  Substantial evidence supported the trial court’s finding that plaintiff was a supervisory employee and, therefore, not entitled to protection under the DJOA which requires contractors who are awarded contracts for janitorial or building maintenance services at a particular site to retain certain employees working for the terminated contractor for a 60-day transition employment period, and to offer those workers continued employment if their performance during the 60-day period is satisfactory. (Lab. Code § 1061(b)(1) & (f).) The DJOA defines an “employee” as a person who works at least 15 hours per week providing janitorial or building maintenance services but who is not a “managerial, supervisory, or confidential employee, including those employees who would be so defined under the federal Fair Labor Standards Act.” (§ 1060(c).)

            The trial court’s costs award to defendant was proper.  Under FEHA, costs may only be awarded to a prevailing defendant if plaintiff’s action was frivolous, unreasonable, or groundless when brought, or if plaintiff continued to litigate after it clearly became so.  However, a trial court may award costs for non-FEHA claims litigated with FEHA claims.  The trial court properly awarded costs to defendant, under Code Civ. Proc. § 1032, for prevailing on plaintiff’s DJOA claim.

Costs, Deeds of Trust, Prevailing Party, Section 1717, Seriously: 4/3 DCA Affirms Mixed Results Fee Awards To One Of Two Plaintiffs Of $34,740 And A Combination Of $35,577 To Two Of Three Defendants

The Title Issue That Started It All Was Partly Corrected And Seller Resumed Payments Years Before, But The Parties Battled On All The Way To Trial – Incurring A Combined Total Of $202,299.50 In Fees, Plus Costs.

            In our Mission Statement, we quote a statement made by Retired Justice Wallin in Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993).  “All too often attorney fees become the tail that wags the dog in litigation.”  As Justice Wallin explained, “Often the economic value of what the [litigant] gains is minute compared to the litigation costs.”  This next case exemplifies Justice Wallin’s observation.

            In Real Properties Network v. D’Alessio, Case No. G058351 (4^th Dist., Div. 3 February 22, 2021) (unpublished), plaintiff Michael Mitchell and his company Real Properties Network, LLC (Network) sued defendant Dennis D’Alessio and his two companies, Newport Harbor Ventures, LLC (Ventures) and D’Alessio Investments, LLC (Investments) seeking quiet title to a Newport Beach condo Mitchell purchased from D’Alessio – along with causes of action for fraud, slander of title, and other related claims – following discovery of a title problem wherein defendant Ventures recorded a grant deed transferring the condo to plaintiff Network, but weeks prior had also recorded a quitclaim deed transferring the condo to defendant Investments. 

            Defendant Investments also filed its own lawsuit against plaintiff Network for repayments, also seeking late fees for various payments, when plaintiffs stopped making interest payments because of the title problem and refused to make the scheduled balloon payment pursuant to the 2-year note on the property.  The lawsuits were consolidated.

            Despite the title and payment disputes being partly resolved by a corrective grant deed and interest/balloon payments years before, the parties argued entitlement to additional remedies – battling all the way to trial where they received mixed results.  Plaintiff Mitchell did not prevail on any of his causes of action, but the trial court found in favor of plaintiff Network against defendants Investments and Ventures on the quiet title cause of action, against defendant Ventures only on plaintiffs’ breach of warranty claim, and defendants prevailed on plaintiffs’ remaining causes of action.  Additionally, plaintiff Network prevailed on defendants’ only remaining claim by the time of trial – the late fees.  No party recovered money from any other party.

            Then came the motions for fees and costs from both sides.  The parties had incurred a combined total of $202,299.50 in fees, plus costs.  Plaintiffs sought $74,722.50 in fees, and defendants sought $127,577 in fees.  We cannot imagine the parties were too happy with the mixed results they received.  The trial court granted the motions to tax costs on both sides – so no costs were awarded due to the parties’ failures to apportion between successful and unsuccessful claims.  Additionally, the trial court made reductions on both sides for excessive billing and other issues.  In the end, plaintiff Network was awarded $34,740 in attorney fees for defeating Investments’ late fee claims, but no fees on the title claim because it did not prevail against D’Alessio – the only signatory to the Agreement, and plaintiff Mitchell was denied fees.  Defendant Investments’ fee request was denied because the fee provision in the Note was too narrowly worded to reach the claims in the title action.  As to D’Alessio, the trial court found he was entitled to an award of his fees as he had prevailed on all claims in the title action.  However, because defendant Ventures was a non-signatory to the parties’ Agreement, it was entitled only to its fees on the contract claims in the title action, under Civil Code section 1717, not on the tort claims.  This resulted in a combined $35,577 award to defendants D’Alessio and Ventures – which beat out Network’s award by $837, although defendants incurred $52,854.50 more in fees than plaintiffs. 

            Defendants appealed, but the results were not mixed this time – with the 4/3 DCA affirming in a 3-0 opinion authored by Justice Thompson.

            Three out of four of defendants’ arguments declared prevailing party entitlement, but the appellate panel disagreed.  Investments was not the prevailing party on its claims by having induced plaintiffs to make the interest and balloon payments.  By the time of trial, Investments only remaining claim was for late payments and was defeated.  Likewise, defendants were not entitled to their costs as the prevailing parties where they had failed to allocate their costs between the claims where they were successful and those where they were not.  Additionally, defendants’ contention that D’Alessio’s complete victory entitled him to all claimed fees failed to take into account that Civil Code section 1717 only permits recovery of “reasonable” attorney fees by a prevailing party in an action on a contract containing an attorney fee provision.  The trial court had properly reduced for excessive billing, clerical tasks, work performed on a cross-complaint against unrelated parties, and fees incurred for the late fees claim.  Finally, the panel found no abuse of discretion in defendants’ challenge of the evidentiary support for plaintiffs’ fee motion.

BLOG NOTE:  This case, like some others before it, caused us to ask, “Seriously?!” – hence the addition of a new category beginning with this post because . . . seriously . . . how could we not?

Cases Under Review, Costs: SCOTUS Grants Certiorari On The Question Of Whether District Courts Have Discretion To Deny Or Reduce Appeal Costs

Particular Question Dealt With Substantial Supersedeas Bond Premiums and Interest.

            On January 8, 2021, the U.S. Supreme Court granted certiorari on an appellate costs issue, in City of San Antonio v. Hotels.com, No. 20-334 (U.S.), to wit:  “Whether, as the U.S. Court of Appeals for the 5th Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed ‘taxable’ in district court under Federal Rule of Appellate Procedure 39(e).”

            In this particular case, Hotels.com eventually obtained reversal of a judgment and then sought to recoup $2,008,359 in supersedeas appellate bond premiums and interest as F.R.App.P. 39(e) appellate costs.  The Fifth Circuit found it had no discretion to reduce or deny the appellate costs request, a decision at odds with the views of the First, Second, Fourth, Sixth, Eighth, Ninth, Eleventh, and Federal Circuits.  The framing of the issue alone might suggest that this one may well get reversed—but we shall see!

Costs: No Costs Awarded To Prevailing Party Winning $2,000 And Limited Equitable Relief In Unlimited Case Involving Feuding Neighbors

Trial Judge Did Not Abuse Discretion In Not Awarding Litigation Costs Where Ultimate Win Was Minor In Nature In Unlimited Civil Case.

            All litigation practitioners should be attuned to the next case, Van Taylor v. Ivie, Case No. B281545 (2d Dist., Div. 3 Jan. 26, 2021) (unpublished), where litigation costs are claimed in an unlimited case where your client won much less than the $25,000 jurisdictional amount.

            In this one, neighbors had a 20-year dispute over a narrow strip of land and block wall between their homes.  After 3 trials (some before a jury and some before a court) and seven appeals, one side received a jury award of $2,000 in damages on trespass/nuisance claims, with the trial judge also awarding some permanent injunctive relief where one side had to remove certain items on a wall between the two properties.  We can only imagine the attorney’s fees spent on this fiasco, but the winning side was denied normal litigation costs (much less than fees), prompting an appeal on the narrow costs issue.

            The 2/3 DCA affirmed the costs denial.  When a monetary award is below the $25,000 unlimited case threshold, the lower court has discretion to deny costs under CCP §1033(a).  Where a party obtains equitable relief, the lower court has the same discretion as far as awarding or denying costs under CCP §1032(a)(4).  Because the trial judge did weigh which side actually achieved their litigation objectives as compared to the contested claims (deciding no one clearly prevailed), it was no abuse of discretion for the trial judge to deny costs to the “winning” side.    

Costs: Reversal Of Costs Awarded To Defendants Necessitated By Reversal Of Trial Court’s Granting Of Defendants’ Summary Adjudication Motion On Negligent Misrepresentation Claim

Plaintiff Adequately Alleged Negligent Misrepresentation, Submitted Evidence Demonstrating A Triable Issue Of Fact, And Defendants Did Not Establish That Plaintiff Could Not Prove The Elements Of Negligent Misrepresentation.

            For a nice discussion re the elements of intentional and negligent misrepresentation, we commend our readers read Borman v. Brown, Case Nos. D076239/D076748 (4^th Dist., Div. 1 January 15, 2021) (published). 

            In Borman, plaintiff sought treatment for a droopy eyelid and brow from eye center physician defendant who advised that a brow lift procedure would correct the issue, but would not be covered by plaintiff’s insurance, and that an eye lift could alternatively be performed and covered by plaintiff’s insurance.  Plaintiff could not afford a procedure not covered by insurance and agreed to have defendant perform the eye lift to resolve her issues.  Afterward, she continued to have difficulties with her eyelid and brow, so she consulted with another physician who informed her that the brow lift, not eye lift, was the procedure that should have been performed for her situation.  Additionally, plaintiff learned the brow lift would have been covered by her insurance had defendant done the appropriate documentation of the need for the procedure and submitted it to the insurance company for approval.

            Plaintiff sued defendant physician and the eye center – alleging causes of action for professional negligence, lack of informed consent, fraud and deceit, and medical battery.  The trial court granted defendants’ summary adjudication as to the fraud and deceit and battery causes of action.  The remaining causes of action went to trial – with the jury returning verdict in defendants’ favor – and the trial court also entered a postjudgment order awarding costs to defendants.  

            The 4/1 DCA reversed and remanded for further proceedings on plaintiff’s fraud and deceit cause of action insofar as it pled a claim for negligent misrepresentation.  In a 3-0 opinion, authored by Justice Aaron, the panel found the trial court erred in granting summary adjudication.  Plaintiff had adequately alleged the tort of deceit based on negligent misrepresentation, had submitted evidence to the trial court demonstrating a triable issue of fact with respect to the intent to induce reliance element, and defendants had not established that plaintiff could not prove the elements of negligent misrepresentation.  Reversal and remand for the negligent misrep claim necessitated reversal of the costs award order issued in defendants’ favor.

Appealability, Costs: Appeal Of Post-Judgment Order Striking Request For Costs Dismissed On Appeal Against Plaintiffs Who Did Obtain A Merits Reversal Of A Demurrer To A Brown Act Mandate Petition

Reason For The Dismissal Was Plaintiffs’ Failure To Adequate Raise Or Brief The Issue. 

            In New Livable California v. Assn of Bay Area Governments, Case No. A159235 (1^st Dist., Div. 3 Dec. 18, 2020 December 18, 2020, published on Jan. 6, 2021), plaintiffs lost a Brown Act writ of mandate petition on a demurrer, a ruling reversed on appeal.  The lower court, in a post-judgment motion, struck a request by plaintiffs for costs, which plaintiffs also appealed.  The appellate court dismissed the appeal based on the abandonment doctrine, because appellants failed to adequately raise or brief the issue.  This is a reminder to practitioners that California reviewing courts usually (in our experience) will not reach out to decide an issue which has been raised summarily without proper discussion of authority or without proper citation to record support cites. 

Costs, Private Attorney General, Reasonableness Of Fees: Petitioners, In Long-Standing San Francisco Bicycle Plan CEQA Challenges, Who Achieved Limited Success, Had Costs Properly Stricken And Recovered 50% Less Than Requested Once The Lodestar Was Reduc

Bottom Line In This Case, Limited Success Will Impact Cost and Fee Recovery, Even In Public Interest Cases.

            We have seen that costs and attorney’s fees in many public interest cases, including those under the private attorney general statute, can be quite large.  However, one should keep in mind that the cost and fee requests can be slashed or denied quite a bit if the plaintiffs/petitioners only obtain limited success.  Anderson v. City & County of San Francisco, Case Nos. A143974 et al. (1^st Dist., Div. 2 Dec. 30, 2020) (unpublished) is a case on point.

            There, petitioners—in a long-standing case generating a prior appeal with limited success—did successfully challenge San Francisco’s Bicycle Plan for CEQA review.  But the victory basically was Pyrrhic in nature.  So, the final strokes for petitioners happened to be what costs and fees they could recoup.

            The trial judge struck $1,813 in costs claimed against City and only granted petitioners $153,346 in attorney’s fees under CCP § 1021.5 out of a requested $500,000 lodestar (plus another 1.5 positive multiplier request).  All of those reductions stayed intact on appeal.

            With respect to costs, petitioners obtained no monetary relief such that the other relief was put in directly in a discretionary determination by the lower court.  The lower court denied costs based on limited success, a determination affirmed under the deferential abuse of discretion standard.  (East Bay Mun. Utility Dist. v. Dept. of Forestry & Fire Protection, 43 Cal.App.4^th 1113, 1131-1134 (1996).)

            That brought the appellate court to the fee award.  After the lodestar reductions for hourly rates, a 50% reduction for limited success by the trial judge—supported by numerous cases allowing for a deduction based on this factor—was affirmed as no abuse of discretion.

            Here are the decisions cited by the 1/2 DCA as supporting this conclusion.  (See e.g., Save Our Uniquely Rural Community Environment v. County of San Bernardino, 235 Cal.App.4th 1179, 1185 (2015) [request for $221,198; award of $19,176]; Bowman v. City of Berkeley, 131 Cal.App.4th 173, 176 (2005) [$96,592 attorney fees billed; $89,696 paid; $17,314 awarded]; San Diego Police Officers Assn. v. San Diego Police Department, 76 Cal.App.4th 19, 24 (1999); Californians for Responsible Toxics Management v. Kizer, 211 Cal.App.3d 961, 974–975 (1989) [65 percent reduction].)

            BLOG COMMENT—This likely will be our last post for 2020.  Happy New Year, readers!

Allocation, Costs: No Abuse Of Discretion Where Trial Court Refused To Tax Costs Among Multiple Defendants Who Settled Out Of The Case Before Trial

Costs Incurred By Plaintiffs In Relation To Other Defendants Were Directly Relevant To Case Against Appealing Defendant And Reasonably Necessary To The Litigation.

            In Booker v. Imerys Talc America, Case No. A153995 (1^st Dist., Div. 3 December 11, 2020) (unpublished), wife and heirs of decedent continued mesothelioma-related litigation against seven defendants after his death.  Most defendants settled with plaintiffs prior to the jury trial – with the remaining two defendants found liable for increasing decedent’s risk of mesothelioma.  When plaintiffs moved post-judgment for prevailing party costs in the amount of $319,549.54, one of the two defendants filed a motion to tax costs.  Specifically, defendant sought to reduce plaintiffs’ recovery of costs by $80,890.28 for costs related to other defendants.  The trial court partially granted in the amount of $44,948.58 for the costs of expert witness services incurred prior to plaintiffs’ § 998 offers, photocopying and enlarged exhibits, but declined to tax costs related to other defendants. 

            The 1/3 DCA affirmed – finding no abuse of discretion.  First, all cases cited by defendant, to support its contention that trial courts have discretionary authority in all cases to reduce costs against a defendant by amounts apportionable to other defendants no longer in the case, were distinguishable in that they involved cases where some of the parties prevailed against the party seeking costs. Additionally, none of the cases involved a dispute concerning the trial court’s discretion to allocate costs among multiple defendants to reduce plaintiffs’ recovery of costs.  Second, the costs that the trial court refused to tax were directly relevant to plaintiff’s case against defendant and reasonably necessary to the litigation.  Plaintiffs incurred filing, motion, service of process and deposition costs – related to other defendants – in order to determine the amount of asbestos that caused decedent’s mesothelioma, determine the merit of defendant’s affirmative defenses that other defendants were responsible for decedent’s mesothelioma, and ascertain defendant’s share of fault for liability and settlement purposes.

Arbitration, Civil Rights, Costs: 4/3 DCA Reverses Fees Awarded To FEHA Defendants For Motion To Compel Arbitration Efforts And Costs Awarded For Prevailing In The Arbitration

Plaintiffs Achieved Partial Success In Their Opposition To Defendants’ Motion To Compel Arbitration, And Fees/Costs Are Not Awardable To Prevailing FEHA Defendant, Pursuant To Gov. Code § 12965(b), Unless The Court Finds Action Was Frivolous, Unreasonable, Or Groundless When Brought, Or The Plaintiff Continued To Litigate After It Became Clearly So.

            In Humphrey v. Harvest Holdings, Case No. G056614 (4^th Dist., Div. 3 December 11, 2020) (unpublished), plaintiffs opposed FEHA defendants’ motion to compel arbitration with limited success – with the trial court determining a confidentiality provision in the arbitration agreement was unconscionable, but severable, and compelling arbitration.  Defendants defeated plaintiffs’ FEHA claims in arbitration, and the arbitrator awarded defendants $3,181.35 in costs – consisting of copying charges and deposition transcript fees – as the prevailing party.  Additionally, the arbitrator awarded defendants $10,000 in attorney fees for their motion to compel arbitration efforts.  The trial court entered judgment confirming the arbitration award and denied plaintiffs’ cross-petition to vacate the arbitration award.  As to the fees/costs issue, the trial court concluded that analysis under FEHA was not necessary because prevailing defendants did not seek fees incurred for the arbitration proceedings – only for the motion to compel arbitration. 

            In a 3-0 opinion authored by Justice Goethals, the 4/3 DCA reversed in their entirety the fees and costs awarded to prevailing defendants.

            Plaintiffs’ opposition to defendants’ motion to compel arbitration achieved some success – demonstrating plaintiffs’ opposition was not frivolous, unreasonable, or groundless (the minimum threshold for FEHA defendants to recover fees under Chavez v. City of Los Angeles, 47 Cal.4th 970, 985 (2010)), so fees incurred by defendants to compel arbitration were not recoverable.  Likewise, the California Supreme Court, under Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 107-109, 115 (2015) has extended that rule to apply to costs (see also Gov. Code § 12965(b).).   

            Finally, although former employer’s contract with plaintiffs contained an arbitration provision with a separate attorney fees and costs clause for the successful party on a motion to compel arbitration, the fee-shifting nature of the clause risked a chilling effect on employees’ access to court on FEHA claims.

Costs: $11,288 Costs Award To County For Outside Counsel/Paralegal’s Administrative Record Work Was No Abuse Of Discretion

If Reasonable And Necessary, CCP § 1094.6(c) Allows For Recovery Of These Costs.

            In McMillan v. County of Siskiyou, Case No. C087960 (3d Dist. Dec. 9, 2020) (unpublished), plaintiffs wanted a hearing before the County’s Planning Commission to determine whether they had vested rights to a surface mine on a 1,741-acre property.  They got their wish, but lost their claim before the Commission, then the Board of Supervisors, and then the superior court in a mandamus proceeding challenge.  The lower court then awarded County $14,655.17 in costs, mostly for preparation of the administrative record in the mandamus proceedings.  On appeal, plaintiffs challenged $11,288 of A/R preparation work by County’s outside counsel and paralegals.

            The Third District affirmed.  Code of Civil Procedure section 1094.6(c) allows for costs recovery of mandamus proceeding A/R work if it is reasonable and necessary.  Plaintiffs argued that only staff agency work, not that of County’s outside counsel or paralegals, was solely compensable, but that argument flew in the face of contrary reasoning from The Otay Ranch, L.P. v. County of San Diego, 230 Cal.App.4^th 60, 70-71 (2014).  With respect to the reasonableness and necessity of the costs under Code of Civil Procedure section 1033.5(c)(2), (3), the record revealed that the work of outside counsel and paralegal satisfied the requirements such that there was no abuse of discretion by the superior court in awarding those costs.

Costs, SLAPP: 5/5 DCA Affirms Trial Court’s Award Of Attorney’s Fees Against Unsuccessful SLAPPing Defendants And Granting Of Dismissed Plaintiffs’ Motion To Strike/Tax Defendants’ Request For Costs

Defendants’ Anti-SLAPP Motion Was Not Based On Protected Activities And Determined Frivolous, And Order On Costs Was Not Appealable Under The One Final Judgment Rule.

            In Lang v. Petaluma Hills Farm, Case No. A156614 (5^th Dist., Div. 5 November 20, 2020) (unpublished), several neighbors sued other neighbors – claiming defendant neighbors were conducting commercial cannabis-related activities without state license and county permit. 

            Defendant neighbors unsuccessfully SLAPPed back – with the trial court determining their anti-SLAPP motion to be frivolous and awarding attorney fees to plaintiffs.  The trial court also issued a preliminary injunction prohibiting defendant neighbors from conducting unlawful cannabis cultivation and cannabis tourism.  Finally, when defendant neighbors sought costs against three plaintiffs who had voluntarily dismissed their claims, the trial court granted dismissed plaintiffs’ motion to strike/tax costs without prejudice to any party bringing a new claim for costs at the conclusion of the litigation. 

            Defendant neighbors appealed the denial of their anti-SLAPP motion and subsequent award of attorney’s fees to plaintiffs, but the 5/5 DCA affirmed.  Plaintiffs’ complaint challenged defendant neighbors’ cultivation of cannabis without a permit, which was not a protected activity, and plaintiffs’ incidental references to defendant neighbors’ efforts to obtain a permit and putting up posters about their cannabis development plans did not provide a basis for striking the claim under Code Civ. Proc., section 425.16 – nor did plaintiffs’ subjective intent in filing the complaint, with intent being irrelevant under section 425.16.  Additionally, defendant neighbors’ argument that their motion to strike should have been granted because they were not cultivating commercial cannabis was to no avail.  The threshold determination was whether plaintiffs’ claims arose out of defendants’ protected activity – with the question being about what is pled, not what is proven.

            Finally, the appellate panel dismissed defendant neighbors’ appeal of the trial court’s granting of dismissed plaintiffs’ motion to strike/tax – concluding the order was not appealable under the “one final judgment” rule as it failed to dispose of all claims between the litigants as dismissed plaintiffs’ motion to strike/tax costs was granted “without prejudice to any party brining a new claim for costs at the end of litigation.”

Costs, Discovery: D.C. Circuit Decides That Only Electronic File Conversion Costs, Not Hosting, Organizing, Or Bates Stamping Expenses, Can Be Recovered By Federal Court Winners

Interpretation Of The Scope of 28 U.S.C. § 1920 Was At Issue.

            28 U.S.C. § 1920 provides:  “A judge or clerk of any court of the United States may tax as costs the following:  (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” (In federal court, taxing costs means the costs can be granted—just the opposite of the terminology familiar to California state judges and practitioners.)

            Of course, electronic discovery (e-discovery) has compounded greatly the costs and expenses of litigating in federal courts, with the question naturally arising as to what e-discovery expenses can be “taxed” (recovered as a matter of right), subject to being reasonable.

            U.S. ex rel. Barko v. Halliburton, 954 F.3d 307 (D.C. Cir. 2020) did consider that very question, coming to a conclusion that some commentators have indicated it out of line with modern e-discovery practice/the expense of e-discovery—a conclusion, however, that was governed by the fact that section 1920 has not been amended since 2008 such that judicial interpretation is guided by a more outdated interpretation of document review expenses (such as when associates were relegated to review and the recoverable costs were limited to photocopying expenses untethered to the expensive pre-copying activities).

            In Barko, a district judge sustained a clerk’s taxing (granting) of a $100,000 costs bill to a prevailing employer in a False Claims Act case for the following e-discovery items:  (1) initial conversion (converting files from their native formats into a format compatible with an e-discovery hosting platform); (2) subscribing to a hosting platform facilitating the various e-discovery steps; (3) processing documents (organizing, keyword-searching, and Bates stamping documents); (4) conversion for production (converting documents into shareable formats for production to opposing counsel and transferring those files onto portable media such as USB drives); and (5) production processing (drafting production cover letters and shipping discovery materials to opposing counsel).

            The D.C. Circuit reversed, determining that only category (4) costs were recoverable, which only came to $342.41, which respect to “costs of making copies of any materials where the copies are necessarily obtained for use in the case” under § 1920(4).  “Put another way, section 1920(4) authorizes taxation of costs for the digital equivalent of a law-firm associate photocopying documents to be produced to opposing counsel,” not the previous, more expense-laden “doc review” tasks performed by the associate. 

            Here is our favorite ending observation from Barko:  “Too often ‘cost disputes embody all the acrimony of hotly contested litigation, sometimes with great nitpicking and pettifogging, refusing to “go gently into that good night” of the closed docket.’  Matter of Penn Central Transportation Co., 630 F.2d 183, 191 (3d Cir. 1980).”

Costs: $27,000 In Third Party Litigation Company Filing Expenses, Deposition Transcripts/Videos, Trial Binders, And Deposition Travel Expenses Were Properly Awarded

Losing Plaintiff Could Not Overcome Abuse Of Discretion Standard.

            Code of Civil Procedure sections 1032, 1033, and 1033.5 are the main statutory provisions which govern the award of “routine” costs to a prevailing party in California state court litigation.  This is the way it works for the prevailing party:  there are specific categories of costs which are recoverable and not recoverable; if nothing is listed or banned, then the particular costs item, if reasonable in nature, is a discretionary one for the trial court to grant or deny depending on whether it was “reasonably necessary to the conduct of the litigation” rather than merely convenient or beneficial to litigation preparation.  (Code Civ. Proc., § 1033.5(c)(2)-(4).)  A properly filled-out costs memorandum is prima facie evidence that the expenses were necessarily incurred, with the party moving to tax costs having the burden to show the costs were unreasonable or unnecessary.  A trial judge’s decision on awarding costs is generally reviewed for abuse of discretion.

            The Fifth District in Klein v. Munger, Case No. F077605 (5^th Dist. Nov. 10, 2020) (unpublished) applied these principles to a situation where a plaintiff lost an arbitration and unsuccessfully attempted to vacate the arbitration award, resulting in a postjudgment award of routine costs of about $27,000 to prevailing defendants.  Plaintiff, on appeal, challenged certain items of awarded costs, but could not surmount the deferential abuse of discretion standard such that the costs order was affirmed.

            Using a third-party litigation company to assist in filing documents was a discretionary cost request properly awarded.  Deposition transcripts/videos are a listed costs item, useful given the arbitrator indicated that the depositions and videotaped excerpts were important in adjudicating the matter.  Trial binder costs (with the binders containing arbitration exhibits) were recoverable in light of them being used in the arbitration.  (Chaban v. Wet Seal, Inc., 203 Cal.App.4^th 49, 59 (2012).). Finally, deposition travel expenses are allowable and were reasonable here given some distance that the deposing attorneys had to travel.

Employment, Multipliers, Costs: Employee Obtaining Partial Success In FEHA Case Properly Awarded $695,000 In Attorney’s Fees, No Expert Witness Fees, And Some Routine Costs

Plaintiff’s $2 Million Request, Inclusive Of A 2.0 Positive Multiplier, Did Not Gain Traction.

            Partial success and high hourly rates can often lead to reductions and rejection of a multiplier in contingency-driven cases under FEHA.  That is what basically occurred in Do v. Raytheon Co., Case No. B293950 (2d Dist., Div. 4 Oct 27, 2020) (unpublished).

            A FEHA plaintiff obtained a total $1.75 million compensatory/punitive damages award against his employer, prevailing on two out of eight claims.  Plaintiff then moved to recover close to $2 million in attorney’s fees under a FEHA shifting statute, $55,322.29 in expert witness fees, and other routine costs.  At the end of the day, the lower court awarded $695,000 in attorney’s fees, no expert witnesses fees, and some routine costs (taxing some messenger, mock trial, and jury consultant expenses).

            All of these determinations were affirmed on appeal.  No multiplier was justified, despite this being a contingency matter, because high hourly rates were being requested and plaintiff did not prevail on a significant number of claims.  Decreasing the fee claim for partial success was totally acceptable under California law, with the reduction off of the lodestar amount (around 20%) being okay.  Expert witness fees were properly denied because the experts did not testify at trial, such that they were not presumptively necessary or reasonable.  Finally, CCP § 1033.5 reasonableness requirements do govern FEHA costs requests, with the lower court’s discount of certain routine requests—messenger, mock trial, and jury consultant expenses—not being an abuse of discretion. 

Costs: $9,816.78 In Costs For 22 Medical Subpoenas Was Reasonably Granted To The Defendant, Given The Position It Took Through Affirmative Defenses.

Premature Filing Of Costs Memorandum Was No Problem Given A Lack Of Prejudice.

            In Lowry v. Port San Luis Harbor Dist., Case Nos. B300072/B302209 (2d Dist., Div. 6 Oct. 22, 2020) (published), defendant was allowed a routine costs award of $9,816.78 for service of 22 medical subpoenas in a case where the defendant alleged various affirmative defenses such as preexisting conditions, superseding/intervening causes, and unfitness for misrepresenting pre-hiring medical facts.  The trial court allowed the requested costs, a determination affirmed on appeal.  Unfortunately for plaintiff, this was an abuse of discretion standard, with nothing showing they were not necessary or unreasonable given the affirmative defenses staked by the defense.  Plaintiff argued that a prematurely filed costs memorandum, before judgment was entered, was erroneous, but the law in this area is that such a premature filing is only so if  prejudice resulted—a result rarely shown, and not in this particular case.  (Haley v. Casa Del Rey Homeowners Assn., 153 Cal.App.4^th 863, 880 (2007).)

Costs: $149,106.50 In Routine Costs (Expert Witness Fees) Were Affirmed In Favor Of The Defense In Accountant Malpractice Action

Plaintiff Did Not Meet His Burden In Showing The Expenses Were Unnecessary/Unreasonable.

            In Anton v. Barbich Hooper King Dill Hoffman Accountancy Corp., Case Nos. F073713/F074644 (5^th Dist. Oct. 20, 2020) (unpublished), plaintiff lost a malpractice case brought against accountant defendants (mainly for accounting expert testimony in a litigation involving division of fees/costs) on summary judgment based on a lack of causation.  (The summary judgment was affirmed on the merits, with the appellate court providing a nice discussion of causation in “settle and sue” malpractice cases.). The trial judge denied plaintiff’s motion to tax costs ($149,106.50 for eight expert witnesses) claimed by the defense.  The appellate court affirmed under the abuse of discretion/compelled findings standards, because there was no uncontradicted, dispositive testimony by plaintiff showing why the main expert’s testimony was not proper rebuttal testimony necessary and reasonable in this type of case. 

Costs, SLAPP, Substantiation Of Reasonableness Of Fees: SLAPP Fees Of $63,970 And Costs Of $1,680.13 Affirmed On Appeal

Vague Objections Not Entertained, But Failure To Award Positive Multiplier Was Sustained.

            In Koerber v. Project Veritas, Case No. B291770 (2d Dist., Div. 3 Sept. 29, 2020) (unpublished), the Court of Appeal affirmed a mandatory SLAPP award of $63,970 in fees and $1,680.13 in costs.  The defense requested $109,545 in fees, inclusive of a 1.5 multiplier, but the trial court did not award a multiplier and reduced the lodestar request for time spent on a demurrer.  Appellant did not provide any specific arguments as to why the fee substantiation was deficient (spreadsheets and supplemental briefing were provided) or why the fee request was inflated.  Filing/motion fees, reporter fees, and attorney service/courier expenses were all fair game for routine costs, with a component-by-component analysis provided in the affirming opinion.

Civil Rights, Costs: In Mixed FEHA/Non-FEHA Action, Costs Properly Assessed Against Nonprevailing Plaintiff

Although FEHA Case Was Not Frivolous, Costs Allowable On Non-FEHA Claims.

            Even though a losing FEHA plaintiff only gets tagged with routine costs if plaintiff’s case is frivolous, that does not mean that plaintiffs in all actions do not face exposure, which is the situation when non-FEHA claims are involved.

            Obi v. L.A. County Sheriff’s Office, Case No. B296553 et al. (2d Dist., Div. 2 Aug. 18, 2020) (unpublished) illustrates the point.  In that appeal, a plaintiff suffered an adverse summary judgment in a case with mixed FEHA and non-FEHA claims.  The trial court awarded the defense $13,191.95 in routine costs although finding that the FEHA claims were not frivolous in nature.  The appellate court affirmed the costs award because costs are recoverable with respect to non-FEHA claims, and nothing showed that the awarded costs were not incurred on all the mixed claims.  In its reply brief, plaintiff tried to challenge costs not contested in the motion to tax costs, but the 2/2 DCA said that was waived by not moving to tax them in the previous motion before the trial judge.

Costs, Section 998, Special Fee-Shifting Statutes: Plaintiff Gets Second Chance At Arbitration And Post-Arbitration Costs Where Trial Court Erroneously Interpreted That The Parties’ Insurance Agreement Precluded The Award Of Arbitration Costs

Insurance Policy Did Not Preclude Recovery Of Costs Under Sections 998 Or 1293.2 And Strictly Limited Arbitrator’s Authority To Decide Only Plaintiff’s Entitlement To Damages And The Amount Thereof.

            In Storm v. The Standard Fire Ins. Co., Case No. B299277 (2d Dist., Div. 4 July 24, 2020) (published), plaintiff and defendant insurance company arbitrated a dispute over an underinsured motorist claim she filed.  After receiving an arbitration award in excess of the unaccepted section 998 offer she made to defendant, plaintiff sought arbitration and post-arbitration costs of $39,960.02 from the trial court under Code Civ. Proc. §§ 998 and 1293.2.  Defendant argued that its insurance policy with plaintiff precluded the award of arbitration costs, and that plaintiff failed to first request costs from the arbitrator before requesting them from the trial court – with the trial court granting defendant’s motion to tax and striking plaintiff’s memorandum of costs in its entirety without considering whether the requested costs were reasonable or necessarily incurred.

            On appeal, plaintiff argued that the trial court’s conclusion that the parties’ insurance agreement precluded her recovery of arbitration costs under section 998 was erroneous.  The 2/4 DCA agreed.  Although the terms of the policy established that the parties agreed to pay their own arbitration expenses and their equal share of the arbitrator’s fee, the terms did not limit the statutory right to seek and recover those costs under section 998.  Likewise, the appellate panel found no provision in the insurance policy that precluded or limited the right to recover section 1293.2 post-arbitration costs incurred to confirm, vacate, or modify the arbitration award.  As to defendant’s contention that plaintiff could not recover costs because she failed to request them from the arbitrator, the 2/4 DCA found defendant’s reliance on Heimlich v. Shivji (2019) 7 Cal.5^th 350 misplaced.  Unlike Heimlich, where the parties had placed the issue of costs before the arbitrator, the policy provisions here strictly limited the arbitrator’s authority to decide only two issues – whether plaintiff was entitled to damages and the amount of those damages.  The arbitrator had no authority in this case to make a determination as to costs reimbursement.

            Trial court’s order reversed – with the matter remanded with instructions to consider whether plaintiff’s requested costs are recoverable and necessarily incurred pursuant to sections 998 and 1293.2.

Costs, Sanctions: Trial Court Properly Denied CCP § 128.7 Sanctions Even Though Opposition Evidence Was Not Overwhelming; However, Costs Had To Be Awarded To Attorney Obtaining Dismissal Of Ex-Client’s Malpractice Complaint

Prevailing Attorney Fell Within Mandatory Category Of A Routine Costs Grant.

            This next matter involved a contentious domestic, non-divorce temporary restraining order situation where an attorney sued for recovery of unpaid fees by one side (a male in a relationship with an ex-girlfriend) where there were malpractice allegations that the attorney had an affair with a former girlfriend of client/provided confidential information to the former girlfriend.  In the end, client’s malpractice action was dismissed on a demurrer, but the superior court clerk refused to enter a routine costs award based on the dismissal—after the trial judge refused to award CCP § 128.7 sanctions against client based on the salacious allegations in the ex-client’s case.

            The 4/1 DCA, in Kelly v. Rutman, Case No. D076022 (4^th Dist., Div. 1 July 21, 2020) (unpublished), affirmed the sanctions denial but reversed the refusal to award routine costs.

            Without going into all the specifics, the inferences from the attorney-former girlfriend relationship—although not overwhelming—did allow discretion to the trial judge to deny section 128.7 sanctions based on the overall circumstances.  Not the same result on the routine costs issue.  Here, attorney was a prevailing party when the malpractice action was dismissed—ex-client obtained no relief and a dismissal was entered in attorney’s favor (Code Civ. Proc., § 1032(a)(2)), a precise category allowing attorney recovery of routine costs.

Costs: Where Both Plaintiff And Cross-Complainant Did Not Prevail, CCP § 1032 Required An Award Of Winning Costs To the Successful Defendant

However, Appellate Court Strongly Suggested That Attorney’s Fees Were Not Automatic, Given The Lower Court Can Find No One Prevailed—Fee Standard Is Different.

            In The Real Estate Store v. Michel, Case No. B301771 (2d Dist., Div. 3 July 8, 2020) (unpublished), defendant obtained a reversal of a “each side bears its own costs and fees” ruling, where routine costs had to be awarded to the defense.  However, the appellate panel strongly suggested that a fee award was not automatic because the lower court employs a discretionary standard when there are mixed results as far as determining who is the prevailing side.

            Here, a jury returned a verdict in favor of defendant on a complaint and in favor of the cross-defendant on defendant’s cross-complaint.  The lower court ruled that each side was to bear its own costs and fees, prompting an appeal by the defense.

            The 2/4 DCA reversed, determining routine costs were mandatory.  Numerous cases confirmed that CCP § 1032(a)(4) required an award of such costs to a defendant in a situation where neither the plaintiff nor the cross-complainant obtained any relief.  (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn., 231 Cal.App.3d 1450, 1453-1455 (1991); Zintel Holdings, LLC v. McLean, 209 Cal.App.4^th 431, 438-440 (2012); Cussler v. Crusader Entertainment, LLC, 212 Cal.App.4^th 356, 370-372 (2012); Schrader v. Neville, 34 Cal.2d 112, 113-115 (1949).)  However, on remand, a fee award was not automatic because the routine costs standard for a “prevailing party” is not determinative, because Civil Code section 1717 allows the trial judge to determine no side prevailed especially in a “mixed results” scenario. 

Costs: Lemon Law Plaintiff Losing Case Properly Assessed With Certain Subpoena Fees, Expert Witness Fees, And Deposition Costs

On Appeal, Taxed Deposition Costs Were Additionally Awarded On Defense Cross-Appeal.

            In Nguyen v. House of Imports, Inc., Case Nos. G056789/G057216 (4^th Dist., Div. 3 June 25, 2020) (unpublished), plaintiff lost a consumer remedies/lemon law case after rejecting two CCP § 998 offers.  In the end, he was saddled with some routine costs.  Plaintiff appealed those cost losses, but he did not win anything.  The defense cross-appealed a refusal to award $7,742 in deposition costs, which actually resulted in a modification to allow these costs.

            Plaintiff challenged some defense witness service of process fees, but that challenge was rejected.  After all, “a trial is a fluid process, particularly for defendants, who present their case last.  Therefore, there may be occasions where it is necessary to subpoena witnesses who ultimately do not testify.”  Next, plaintiff contested $31,068.55 in expert witness fees as far as amount, but the expert’s trial witness preparation costs were not excessive given the expert was a key witness whose testimony was necessary to obtain a defense verdict.  Finally, the defense’s claim for $7,742 deposition costs was righteous, given that 11 of 13 depositions were taken by plaintiff and plaintiff failed to shift the burden from the verified costs memorandum as far as showing the costs were not reasonable or necessary in nature.  Costs award affirmed, plus another $7,742 to the defense.

            Acting Presiding Justice Moore authored the 3-0 panel decision. 

Civil Rights, Costs, Substantiation Of Reasonableness Of Fees, Reasonableness Of Fees: Except For Correction Of Routine Costs Math, FEHA Fee Award Of About $1.1M And Almost $107K In Costs Affirmed On Appeal Where Plaintiff Won $650K In Damages

Limited Success/Allocation Fee Challenges Rejected On Appeal; Expert Witness Fees Can Be Sought Through A Costs Memorandum. 

            In Abarca v. Citizens of Humanity, LLC, Case No. B290090 (2d Dist., Div. 3 June 18, 2020) (unpublished), a FEHA plaintiff won a jury verdict on disability discrimination/retaliation claims, although losing two other claims, to the tune of compensatory and punitive damages totaling $650,000 ($550,00 of which were punitive damages).  Plaintiff’s attorneys, under a liberal FEHA fee-shifting statute, moved to recover a fee lodestar of $1,652,255 plus a 2.0 positive multiplier (total fee request of $3,304,510) as well as costs of $142,299.92 (a lot of which were for depositions, expert witness fees, models/blowups, etc.).  In the end, the trial judge awarded $1,084,160 in fees after reducing hourly rates and denying the multiplier request and also awarded costs of around $116,000.

            The appellate court affirmed everything, except to modify routine costs down to about $107,000 based on some transparent math errors.

            The defense attacked reliance on reconstructed time, but this was a credibility determination for the lower court below.  As far as limited success or apportioning fees on unsuccessful claims, the appellate court found that (1) the $650,000 verdict was not limited success given that the defense only offered to initially settle the case for $149,999.99; and (2) the intertwined unsuccessful claims were not a reason to reduce the fee under the particular circumstances of the case.  With respect to routine costs, a lot of the defense opposition centered on whether expert fees needed to be claimed by noticed motion versus a cost memorandum, with plaintiff claiming through a cost memorandum.  As we see it, the appellate court seemed to endorse the view, based on an analogous CCP § 998 situation, that these fees could be claimed through a cost memorandum (Jonkey v. Carignan Construction Co., 139 Cal.App.4^th 20, 27 (2006), especially given no procedural specification under the FEHA cost-shifting statute to the contrary.  However, there was no need to really confront the issue, because no prejudice was shown—the defense did oppose the costs through a motion to tax with full briefing by everyone.  As far as models, blowups, and exhibit photocopies, courtroom technology has become more commonplace and less expensive such that earlier cases where the costs were exorbitant were not persuasive.  (Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 991 (2013).)  Everything affirmed, except for the appellate court to correct some minor arithmetic errors. 

Costs: 2/4 DCA Affirmed Routine Costs For Preparing Exhibits/Closing Demonstratives Not Used At Trial, For Second Defense Counsel’s Deposition Travel Expenses To Japan, And For Certain Deposition/Trial Interpreter Expenses

“Pragmatic Take” On Routine Costs Was Explained On Appeal, With Non-Used Exhibits Costs Allowable Despite Siding On A Split In Intermediate Appellate Thinking—If They Were Helpful.

            Segal v. ASICS America Corp., Case No. B299184 (2d Dist., Div. 4 June 15, 2020) (published) confronted allowing routine costs—although, given modern litigation expenses, maybe far from routine as maybe contemplated under the routine costs statutes—with respect to allowing costs for (1) exhibits and closing argument demonstratives not ultimately used at trial; (2) travel expenses for a second attorney to attend depositions in Japan; and (3) interpreter fees for Japanese depositions and trial testimony.  In the end, all of these costs were allowed, with the 2/4 DCA publishing to explain that a “pragmatic approach” should guide routine costs recovery in modern litigation, even though the exhibit category had resulted in a prior split in appellate thinking.

            Without getting too much into the weeds, the exhibit/demonstratives costs items was proper—despite a split in thinking (Seever/Ladas—not recoverable; Applegate/Benach—recoverable)—because litigation attorneys cannot be clairvoyant on what and what is not is admissible, so discretion is allowed to the lower court, with no definitive prohibition in light of what modern litigators have to prepare for and maybe present before jurors.  When it came to the travel costs to Japan by a second counsel to help with a deposition, this was not be unexpected given modern litigation where it is routine to send more than one attorney to defend or take a deposition in a complex case.  Then, when it came to interpreter fees, it would be tough to argue that a deponent not that proficient in English would have the expenses in translating as being a foreseen routine cost, whether in deposition or at trial (and it could be awardable as foreseen and reasonable).   So, in the end, pragmatism rules in this area—costs award affirmed in toto!