Segal v. ASICS America Corp., 502 P.3d 389

Plaintiffs Size It, LLC and Mickey Segal sued ASICS and individuals for fraud; a jury returned a defense verdict.
Defendants filed a memorandum of costs claiming, among other items, copying/assembly of exhibit binders and demonstrative aids prepared for trial but not actually used.
The trial court allowed recovery of those unused photocopies, binders, and demonstratives; plaintiffs moved to tax costs and appealed.
The Court of Appeal affirmed, holding such unused exhibit-related costs recoverable under Code Civ. Proc. § 1033.5(a)(13) and, alternatively, within the trial court’s discretion under § 1033.5(c)(4).
The California Supreme Court agreed the trial court did not abuse its discretion but reversed the Court of Appeal to the extent it held unused exhibits categorically recoverable under § 1033.5(a)(13). It held unused items are not recoverable as a matter of right under (a)(13) but may be awarded in the trial court’s discretion under (c)(4) if reasonably necessary and reasonable in amount.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether costs for photocopies/bind ers and demonstratives prepared for trial but not shown to the trier of fact are recoverable as a matter of right under §1033.5(a)(13)	Ladas/Seever: (a)(13) requires the items "were reasonably helpful to aid the trier of fact," so unused items cannot qualify	Broader reading: (a)(13) covers methods (models/photocopies) reasonably helpful; pretrial preparations that facilitate trial are covered even if not used	No. (a)(13) requires the items actually have been helpful to the trier of fact; unused items are not categorically recoverable under (a)(13).
Whether the trial court may nonetheless award such costs in its discretion under §1033.5(c)(4)	Plaintiffs: Seever—Legislature’s limits in (a) implicitly remove discretion to award similar unenumerated subcategories	Defendants: Section (c)(4) and other precedents allow discretionary awards for items neither expressly allowed nor prohibited when reasonably necessary	Yes. The Court held (c)(4) permits discretionary awards for unused exhibit-related items that are reasonably necessary to conduct litigation and reasonable in amount; Seever is disapproved to that extent.

Seever v. Copley Press, Inc., 141 Cal.App.4th 1550 (2006) (held unused exhibit-copy costs not recoverable under §1033.5(a)(13) and that (c)(4) did not authorize them)
Ladas v. California State Automobile Assn., 19 Cal.App.4th 761 (1993) (held exhibit costs prepared but not used at trial were not allowable under (a)(13))
Applegate v. St. Francis Lutheran Church, 23 Cal.App.4th 361 (1994) (upheld discretionary recovery under (c)(4) for exhibits prepared for trial but not used)
Benach v. County of Los Angeles, 149 Cal.App.4th 836 (2007) (approved discretionary awards for exhibit binders/exchange where preparation was prudent and unforeseeably unused)
Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4th 1095 (1995) (recognized items neither expressly allowed nor prohibited may be recoverable in the court’s discretion under §1033.5(c))
County of Riverside v. City of Murrieta, 65 Cal.App.4th 616 (1998) (interpreting §1033.5(a)(13) to allow recovery only if items "were reasonably helpful to aid the trier of fact")
Nelson v. Anderson, 72 Cal.App.4th 111 (1999) (standards for costs recoveries and limits on abuses)