Segal v. ASICS America Corp. ( 2020 )

Filed 6/15/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MICKEY SEGAL et al., B299184
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC597769
v.
ASICS AMERICA
CORPORATION et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Elizabeth Allen White, Judge. Affirmed.
Greenspoon Marder, James H. Turken and Rebecca Lawlor
Calkins for Plaintiffs and Appellants.
Sidley Austin, Jack S. Yeh, David R. Carpenter, Alexis
Miller Buese, Collin P. Wedel, and Rara Kang for Defendants and
Respondents.
INTRODUCTION
Plaintiffs and appellants Mickey Segal and Size It, LLC
(collectively, Size It) appeal from the trial court’s order granting
in part and denying in part their motion to tax costs. Size It
contends the trial court erred by refusing to tax costs associated
with: (1) photocopies of exhibits and the creation of closing
argument demonstratives; (2) travel expenses for defense counsel
to attend the depositions of defendants Motoi Oyama and
Katsumi Kato, as well as fact witness Shiro Tamai, which were
taken in Japan; and (3) interpreter fees for Oyama’s and Tamai’s
depositions, as well as Oyama’s trial testimony.
We conclude Size It has not shown the trial court abused its
discretion. Accordingly, we affirm. We acknowledge a split in
authority over whether costs incurred in preparing models,
blowups, and photocopies of exhibits not used at trial may be
awarded under Code of Civil Procedure 1 section 1033.5,
subdivision (a)(13). We publish to explain why we have concluded
they may and include our pragmatic take on why having well-
prepared counsel is “reasonably helpful to aid the trier of fact”—
the test for cost recovery under the statute.
BACKGROUND
Size It brought an action for fraud against defendants and
respondents ASICS America Corporation, ASICS Corporation,
Kevin Wulff, Kenji Sakai, Oyama, and Kato (collectively, ASICS).
Following a trial, the jury rendered a verdict in ASICS’s favor.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
ASICS filed a memorandum of costs, seeking to recover
$384,773.96. Among the costs it sought to recover were: (1)
$34,166.79 for preparing photocopies of exhibits, exhibit binders,
and closing argument demonstratives referencing exhibits; (2)
$6,327.47, representing defense counsel’s travel expenses for
attending depositions in Japan of Oyama, Kato, and Tamai; and
(3) $29,240 in interpreter fees incurred at Tamai’s and Oyama’s
depositions and during Oyama’s trial testimony.
In response, Size It filed a motion to tax costs. Size It
contended ASICS improperly sought costs falling into “various
categories of expenses that are not allowed as a matter of law,”
were unreasonable, and “were not reasonably necessary in
defending this litigation.”
Following a hearing, the trial court granted Size It’s motion
in part and denied it in part. Although the court taxed ASICS’s
costs by $81,722.13, the court declined to tax the costs for the
three categories discussed above. Consequently, the court entered
an amended judgment in ASICS’s favor, awarding ASICS
$303,051.83 in costs.
Size It timely appealed.
DISCUSSION
I. Applicable Statutory Framework for Costs and
Standard of Review
Pursuant to section 1032, subdivision (b), “a prevailing
party is entitled as a matter of right to recover costs in any action
or proceeding.” “[S]ection 1033.5 sets forth the items that are and
are not allowable as the costs recoverable by a prevailing party
under section 1032[.]” (Chaaban v. Wet Seal, Inc. (2012) 203
Cal. App. 4th 49, 52.) Specifically, section 1033.5, subdivision (a)
enumerates the items that are allowable as costs, while
3
subdivision (b) lists the items for which costs may not be
recovered. (§ 1033.5, subds. (a) & (b).) Under section 1033.5,
subdivision (c)(4), however, cost items that are neither permitted
under subdivision (a) nor prohibited under subdivision (b) may
nevertheless be “allowed or denied in the court’s discretion.”
(§ 1033.5, subd. (c)(4); see also Applegate v. St. Francis Lutheran
Church (1994) 23 Cal. App. 4th 361, 363-364 (Applegate).) All costs
awarded, whether expressly permitted under subdivision (a) or
awardable in the trial court’s discretion under subdivision (c),
must be “reasonably necessary to the conduct of the litigation”
and be “reasonable in amount.” (§ 1033.5, subds. (c)(2) & (3).)
“Generally, the standard of review of an award of costs is
whether the trial court abused its discretion in making the
award. [Citation.] However, when the issue to be determined is
whether the criteria for an award of costs have been satisfied,
and that issue requires statutory construction, it presents a
question of law requiring de novo review. [Citation.]” (Berkeley
Cement, Inc. v. Regents of University of California (2019) 30
Cal. App. 5th 1133, 1139.) “‘“The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can be reasonably deduced
from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.”’ [Citations.]” (Brawley v.
J.C. Interiors, Inc. (2008) 161 Cal. App. 4th 1126, 1137-1138
(Brawley).)
II. Exhibit Photocopies and Demonstratives
Under section 1033.5, subdivision (a)(13), costs for
“[m]odels, the enlargements of exhibits and photocopies of
exhibits, and the electronic presentation of exhibits, including
4
costs of rental equipment and electronic formatting, may be
allowed if they were reasonably helpful to aid the trier of fact.”
Size It contends the trial court erred as a matter of law in
refusing to tax the costs ASICS incurred in photocopying
exhibits, preparing exhibit binders, and creating closing
argument demonstratives because most of ASICS’s exhibits were
not admitted into evidence. Consequently, Size It argues, ASICS
was not entitled to recover costs for preparing a majority of these
materials under section 1033.5, subdivision (a)(13), as most of
them were not shown to the jury, and thus were not “reasonably
helpful to aid the trier of fact.”
As noted above, there is a split in authority on whether
costs related to exhibits ultimately not used at trial are
recoverable. In the cases on which Size It relies, the reviewing
courts interpreted the language in section 1033.5, subdivision
(a)(13) requiring exhibits be “reasonably helpful to aid the trier of
fact” to “exclude[] as a permissible item of costs exhibits not used
at trial, which obviously could not have assisted the trier of fact.
[Citations.]” (Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th
1550, 1557-1558 (Seever); see also Ladas v. California State
Automobile Assn. (1993) 19 Cal. App. 4th 761, 775 (Ladas) [holding
“fees are not authorized for exhibits not used at trial” under
section 1033.5, subdivision (a)].) Moreover, in Seever, the court
further held costs for exhibits not used at trial are not awardable
in the trial court’s discretion under section 1033.5, subdivision
(c)(4). (Seever, supra, 141 Cal.App.4th at pp. 1559-1560.) The
Seever court reasoned that by allowing costs associated with
exhibits only where they are “reasonably helpful to aid the trier
of fact” under section 1033.5, subdivision (a)(13), the Legislature
intended to preclude courts from exercising discretion to award
5
costs for these items when the conditions in subdivision (a)(13)
are not met. (Ibid, italics omitted.)
By contrast, in the cases cited by ASICS, the reviewing
courts held costs related to exhibits not used at trial may be
awarded under section 1033.5, subdivision (c)(4). (Applegate,
supra, 23 Cal.App.4th at pp. 364-365; Benach v. County of Los
Angeles (2007) 149 Cal. App. 4th 836, 856-857 (Benach).) These
courts reasoned costs associated with unused exhibits were
awardable in the trial court’s discretion because “[a]n
experienced trial judge could recognize that it would be
inequitable to deny as allowable costs exhibits which a prudent
attorney would prepare in advance of trial.” (Applegate, supra, 23
Cal.App.4th at p. 364; Benach, supra, 149 Cal.App.4th at p. 856.)
We decline to follow the cases cited by Size It. In our view,
interpretation of section 1033.5, subdivision (a)(13) must reflect
the reality of how complicated cases are tried. As the Benach and
Applegate courts acknowledged, prudent counsel must prepare
exhibits and demonstratives well in advance of trial. Given that
trials are unpredictable, however, it is difficult for even the most
experienced trial lawyers to divine which exhibits and
demonstratives will in fact be used. Consequently, it is in
counsels’ (and their clients’) interests to come to trial with copies
of all exhibits and demonstratives reasonably anticipated for use
in hand. Indeed, an applicable local rule requires the pretrial
exchange and pre-marking of all exhibits that might be used at
trial (other than for impeachment). (Super. Ct. L.A. County,
Local Rules, rule 3.52.) Moreover, as in this case, the trial court’s
own procedures often require counsel to pre-mark and prepare
multiple copies of their exhibits, placing them into separate
binders, which are given to opposing counsel, placed on the stand
6
for review by witnesses, given to the judicial assistant or clerk,
and given to the trial judge for use in trial.
Counsel’s pretrial preparation of exhibit photocopies and
demonstratives reasonably anticipated for use at trial expedites
the proceedings. For example, it allows for efficient examination
of witnesses and facilitates prompt resolution of evidentiary
issues. This is especially important in lengthy jury trials, where
common courtesy and respect for the jurors’ time and sacrifice
requires that courts adopt policies and procedures to expedite the
proceedings.
Exhibit binders allow trials to proceed more quickly, thus
they are “reasonably helpful to aid the trier of fact[.]” Even if the
binders contain exhibits never offered or admitted at trial, their
preparation facilitates trial proceedings and helps avoid wasting
the jurors’ time. Similarly, precious time is saved if counsel
prepares digitized copies in advance of all potential exhibits and
demonstratives. In lieu of binders, monitors are placed on the
bench and witness stand, allowing the judge and the witness to
view the documents. Images of admitted exhibits and appropriate
demonstratives can also be viewed by the jury on large monitors,
projection screens, or other devices. The alternative to preparing
comprehensive pre-marked hardcopy and/or digitized collection of
potential exhibits is to waste everyone’s time by using the old
school method: counsel fumbles about finding the desired exhibit,
shows it to opposing counsel, hands copies to the clerk—including
one for the judge, asks to approach the witness to show the
document to the witness, does so, and then proceeds with
examination. This is the cumbersome procedure that must be
followed for documents that have not been pre-marked prior to
7
trial. (See Super. Ct. L.A. County, Local Rules, rules 3.149, 3.150,
3.151, & 3.155.).
Likewise, having all possible closing argument
demonstratives at the ready saves time. Counsel can close
immediately after the last witness has testified, rather than
requiring dead time while counsel prepares. This, too, is helpful
to the trier of fact—especially if the trier of fact is a jury—
because the jurors’ time is precious. Most demonstratives used in
closing argument (apart from replicas of exhibits introduced at
trial) are not admissible, yet surely they aid the jury, and it
would make no sense to exclude these from inclusion in
recoverable costs.
We owe jurors our respect and gratitude. Without their
willingness to serve, the cherished right to jury trial would be
lost. Judges and lawyers need to treat jurors with the courtesy
and dignity they deserve. This includes being mindful of their
time by starting proceedings on time, reducing juror down-time,
properly informing them of the trial schedule, keeping to that
time schedule to the extent reasonably possible, and streamlining
proceedings.
Accordingly, we disagree with Seever and Ladas. Courts
should not “‘“‘read into the statute allowing costs a restriction
which has not been placed there.’”’ [Citation.]” (LAOSD Asbestos
Cases (2018) 25 Cal. App. 5th 1116, 1124.) But by limiting the
application of section 1033.5, subdivision (a)(13) to materials
used at trial, the Seever and Ladas courts did just that. The
meaning of the phrase “reasonably helpful to the trier of fact” is
broader than the limited notion of helpfulness in the specific task
of finding facts, and encompasses as well the more general
concept of helpfulness in the form of efficiency in the trial in
8
which the trier of fact is asked to perform that task. For the
reasons discussed above, we hold costs incurred in preparing
models, blowups, and photocopies of exhibits may be awarded
under section 1033.5, subdivision (a)(13), even if these materials
were not used at trial. For the same reasons, we also conclude
these costs may be awarded under section 1033.5, subdivision
(c)(4).
The trial court therefore did not err in refusing to tax the
costs ASICS incurred in creating exhibit photocopies and closing
argument demonstratives, even though many were not used at
trial.
III. Deposition Travel Expenses
Size It contends the trial court should have taxed the travel
expenses ASICS’s counsel incurred in defending three depositions
taken in Osaka, Japan, because ASICS improperly sought
expenses for sending two lawyers to Kobe, Japan, to prepare
deponents for depositions a week before they took place.
Specifically, Size It contends ASICS’s request for these expenses
exceeded the scope of section 1033.5, subdivision (a)(3)(C) because
this provision permits recovery of travel expenses for only one
lawyer’s attendance at a deposition, and does not allow for
recovery of travel expenses associated with counsel’s preparation
of a deponent prior to his or her deposition. ASICS counters Size
It’s contentions are unsupported by legal authority and, in any
event, the travel expenses were properly awarded in the trial
court’s discretion under section 1033.5, subdivision (c)(4). We
agree with ASICS.
Under section 1033.5, subdivision (a)(3)(C), a prevailing
party may recover “[t]ravel expenses to attend depositions” as
9
costs (§ 1033.5, subd. (a)(3)(C).) As ASICS points out, Size It has
not cited—and we cannot find—any authority to support its
assertion that travel expenses may not be awarded for more than
one lawyer’s attendance at a deposition. Further, Size It does not
explain how its proffered limitation on costs awardable is
supported by the statute’s plain language or legislative history.
Thus, Size It appears to do nothing more than ask us to read into
section 1033.5, subdivision (a)(3)(C) a restriction that does not
exist. This we cannot do. (See LAOSD Asbestos Cases, supra, 25
Cal.App.5th at p. 1124.)
Size It’s argument is also unavailing because it would
require us to interpret section 1033.5, subdivision (a)(3)(C) in a
manner that does not reflect the reality of how complicated cases
are prepared for trial. It is common for a party to send more than
one attorney to take or defend a deposition. Indeed, in this case,
ASICS and Size It each sent two attorneys to attend the
depositions held in Japan. Thus, it makes little sense to restrict
recovery of travel expenses under this statute to those incurred
by one lawyer’s attendance at a deposition.
Additionally, even assuming ASICS was not entitled to
recover all the travel expenses associated with the depositions
taken in Japan under section 1033.5, subdivision (a)(3)(C)—such
as the expenses regarding the deponents’ pre-deposition
preparation in Kobe—Size It does not appear to dispute ASICS’s
contention that the court could properly award these costs in its
discretion under section 1033.5, subdivision (c)(4). Indeed, Size It
does not reference subdivision (c)(4) while challenging the court’s
award of travel expenses in its opening brief. Nor did Size It file a
reply brief to address the arguments based on subdivision (c)(4)
presented in ASICS’s brief.
10
In any event, we conclude the travel expenses at issue were
properly awardable under section 1033.5, subdivision (c)(4). The
depositions of Oyama, Kato, and Tamai were noticed by Size It
and ordered to be taken in Japan. All of the deponents lived in
Kobe, and two of them were defendants. Based on ASICS’s
unchallenged evidence, each of the depositions involved complex
topics and issues. Given these circumstances, and the fact that
Size It also sent two attorneys to attend these depositions, the
trial court could reasonably conclude it was appropriate for
ASICS to send two attorneys to Kobe to prepare the deponents
for their depositions a week before they were taken, and to
defend these depositions.
Accordingly, the trial court did not abuse its discretion
when it refused to tax ASICS’s travel expenses associated with
the depositions in Japan.
IV. Interpreter Fees
A. Deposition Interpreter Fees
Size It argues the trial court erred in awarding ASICS costs
for interpreter fees incurred at Oyama’s and Tamai’s depositions.
In particular, Size It contends the court lacked authority to
award these costs under section 1033.5, subdivision (a)(12), which
permits recovery of interpreter fees only “for an indigent person
represented by a qualified legal services project . . . or a pro bono
attorney[.]” (§ 1033.5, subd. (a)(12).) Consequently, Size It
asserts, because the record lacks evidence demonstrating Oyama
and Tamai were indigent, or that they were represented by pro
bono counsel, the court should have taxed these costs. ASICS
responds the court properly awarded the deposition interpreter
fees under section 1033.5, subdivision (a)(3)(B), which allows for
11
recovery of interpreter fees “for the deposition of a party or
witness who does not proficiently speak or understand the
English language.” (§ 1033.5, subd. (a)(3)(B).) Again, we agree
with ASICS.
As an initial matter, we note that even if the interpreter
fees incurred at Oyama’s and Tamai’s depositions were not
awardable under section 1033.5, subdivision (a)(12), Size It does
not dispute ASICS’s contention that these costs could
alternatively be recovered under section 1033.5, subdivision
(a)(3)(B). Size It also does not challenge the court’s ruling
awarding ASICS interpreter fees for Tamai’s deposition under
this provision, having found “it [was] not established that
[Tamai] could speak or understand the English language with
ease.” Nor does Size It identify any evidence in the record
indicating Tamai was proficient in English. Thus, we conclude
Size It has not shown the court erred in declining to tax the
interpreter fees for Tamai’s deposition.
With respect to the interpreter fees for Oyama’s deposition,
however, Size It suggests the court’s award of costs was improper
because Oyama testified at trial he could speak and read English.
While Size It correctly observes Oyama did testify he “speak[s]
and read[s] English with ease,” Size It’s argument is unavailing
because the record contains ample other evidence to support a
finding that Oyama could not “proficiently speak or understand
the English language.” At trial, Oyama testified Japanese was
his first language, and explained he was testifying with an
interpreter to ensure he could “hear the questions as accurately
as possible” and “answer [the questions] accurately with
appropriate expressions.” He also testified that while he could
speak, read, and write English, he regularly conducts business
12
with the assistance of English interpreters to “avoid making
mistakes when [he is] speaking” and to “confirm what [he is]
hearing.”
When reviewing a trial court’s decision for an abuse of
discretion, “we cannot reweigh evidence or pass upon witness
credibility.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley
(2003) 105 Cal. App. 4th 1414, 1420.) Additionally, when more
than one inference can be reasonably deduced from the facts, we
have no authority to substitute our decision for that of the trial
court. (Brawley, 161 Cal.App.4th at p. 1137.) Thus, because the
record reasonably supports the court’s finding that Oyama’s
deposition interpreter fees were properly awardable under
section 1033.5, subdivision (a)(3)(B), the trial court did not abuse
its discretion in refusing to tax these costs.
B. Trial Interpreter Fees
Finally, Size It contends the court abused its discretion in
awarding ASICS costs for Oyama’s interpreter fees at trial. In
support of its argument, Size It again emphasizes Oyama
testified he speaks English with ease. In response, ASICS
maintains the record reflects Oyama was not proficient in the
English language, and therefore the fees were properly
awardable in the trial court’s discretion under section 1033.5,
subdivision (c)(4).
For the same reasons we concluded the court did not abuse
its discretion declining to tax the costs for Oyama’s deposition
interpreter fees under section 1033.5, subdivision (a)(3)(B), we
conclude the court also did not err in refusing to tax the costs for
his trial interpreter fees under section 1033.5, subdivision (c)(4). 2
2 Though not entirely clear, Size It also appears to assert
the trial court erred in refusing to tax the interpreter fees at
13
DISPOSITION
The order granting in part and denying in part the motion
to tax costs is affirmed. ASICS is awarded its costs on appeal.
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
issue because the amount sought ($29,240.00) is unreasonable.
Because Size It’s assertion is unsupported by reasoned argument
or citation to authority, however, we conclude it has been
forfeited and decline to consider it. (Benach, 149 Cal.App.4th at p.
852.)
14