Metropolitan News-Enterprise


Wednesday, June 17, 2020


Page 1


Court of Appeal:

Prevailing Party Entitled to Costs of Exhibits Not Used at Trial

Two Opinions From This District Are Examined; 2006 Decision From Div. Seven Is Spurned, 2007 View Of Div. Eight Is Embraced, but Expanded Upon; Currey Takes Expansive View of Word ‘Helpful’  


By a MetNews Staff Writer


Div. Four of this district’s Court of Appeal has voiced its agreement with Div. Eight that a party prevailing at trial may be entitled to the costs of preparing demonstrative aids that are not shown to the jury, disagreeing with the contrary view of Div. Seven.

Justice Brian S. Currey authored Div. Four’s opinion, filed Monday. It affirms an order by Los Angeles Superior Court Judge Elizabeth Allen White in which she declined to tax costs in connection with visual aids prepared by ASICS America Corporation and others who won a jury verdict in a fraud action brought against them by Mickey Segal and Size It, LLC.

“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 section 1033.5, subdivision (a)(13),” Currey wrote. “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.”

Sec. 1033.5 deals with costs. Subd. (a) enumerates allowable costs and subd. (d) sets forth costs which may not be awarded.

Sec. 1033.5(a)(13) specifies that costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”

There’s no mention in either subd. (a) or (b) of exhibits or other aids that were paid for but not used at trial.

Div. Seven’s View

Div. Seven of this district declared in its 2006 decision in Seever v. Copley Press, Inc. that an award of such costs is barred. Then-Justice Fred Woods (now retired) said:

“On its face this statutory language excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.”

The same conclusion had been reached in 1993 by the First District in Ladas v. California State Automobile Assn.

Div. Eight’s Assessment

Div. Eight of this district in 2007 expressed a contrary view. Justice Paul Boland (since deceased) said in Benach v. County of Los Angeles:

“The authority for an award of the photocopying and exhibit costs is Code of Civil Procedure section 1033.5, subdivision (c)(4).”

 Boland’s view was in accord with that expressed in 1994 by the First District in Applegate v. St. Francis Lutheran Church.

Sec. 1033.5(c)(4) provides:

“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

Monday’s opinion agrees with Boland that §1033.5(c)(4) provides authority for the award of costs for unused exhibits, but it also finds support in §1033.5(a)(13), reasoning that it is “reasonably helpful to aid the trier of fact” if demonstrative aids are prepared, disclosed and pre-marked prior to trial, expediting proceedings.

Currey’s Opinion

Currey took this position:

“[P]rudent 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.”

Pointing to Los Angeles Superior Court Local Rules, rule 3.52, he said:

“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)…. 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 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.”

Criticizes Seever, Ladas

The jurist cited the precept expressed in cases that courts should not “read into the statute allowing costs a restriction which has not been placed there,” remarking:

“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 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).”

Currey’s opinion finds no fault with any other aspect of White’s ruling on costs. It rejects the contention that it was unreasonable to send two lawyers to Osaka, Japan to attend three depositions conducted by the plaintiffs and to prepare the deponents, and saw no basis for taxing costs for interpreters’ fees.

The case is Segal v. ASICS America Corp., 2020 S.O.S. 2849.

Attorneys on appeal were James H. Turken and Rebecca Lawlor Calkins of Greenspoon Marder for Segal and Size It, LLC and Jack S. Yeh, David R. Carpenter, Alexis Miller Buese, Collin P. Wedel, and Rara Kang of Sidley Austin for ASICS.

Underlying Lawsuit

The plaintiffs were investors in Windsor Financial Group LLC. They contended in their lawsuit that ASICS America Corp., a Japanese sportswear company, granted Windsor a 20-year exclusive license to operate ASICS-branded retail stores in the United States, Canada, and Puerto Rico, then failed to supply inventory, forcing all 13 stores to close.

The complaint set forth:

“ASICS reneged on each of its promises and instead…set out to financially destroy Windsor so ASICS could swoop in and take over its network of retail stores for pennies on the dollar. In doing so, ASICS rendered plaintiffs’ investment in Windsor worthless, causing them to lose millions of dollars.”

ASICS countered that it terminated the licensing agreement because Windsor failed to pay the licensing fee.

The jury rendered its verdict in favor of the defendants on Feb. 8, 2019.


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