MICKEY SEGAL et al., Plaintiffs and Appellants, v. ASICS AMERICA CORPORATION et al., Defendants and Respondents.
B299184
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 6/15/20
CERTIFIED FOR PUBLICATION; Los Angeles County Super. Ct. No. BC597769
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.
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
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.
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
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
“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.]”
II. Exhibit Photocopies and Demonstratives
Under
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
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
By contrast, in the cases cited by ASICS, the reviewing courts held costs related to exhibits not used at trial may be awarded under
We decline to follow the cases cited by Size It. In our view, interpretation of
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,
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
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,
Under
Size It‘s argument is also unavailing because it would require us to interpret
Additionally, even assuming ASICS was not entitled to recover all the travel expenses associated with the depositions taken in Japan under
In any event, we conclude the travel expenses at issue were properly awardable under
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
As an initial matter, we note that even if the interpreter fees incurred at Oyama‘s and Tamai‘s depositions were not awardable under
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
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
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
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
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.