Can you recover costs of depositions if the depositions did not actually occur?

By Eric Ganci

Per California law, the prevailing party can seek to obtain costs from the losing side, if they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” This is per California Civil Code 1033.5 (c)(2).

Also per California Code of Civil Procedure 1033.5, the prevailing party can seek to recover costs for “[t]aking, video recording, and transcribing necessary depositions” as well as for “[s]ervice of process by a public officer, registered process server, or other means.” See California Civil Code 1033.5(a)(3)(A) and (a)(4).

Well, what happens if the deposition is noticed, but does not actually happen? Or if there are late cancellation fees assessed to the depositions? Can the prevailing party also seek to recover those costs? These are the issues from this recent January 2024 decision Garcia v. Tempur-Pedic North America, LLC, right now cited as 98 Cal.App.5th 819.

“Consumers brought tort claims against a mattress retailer and manufacturer for injuries allegedly suffered while sleeping on a mattress.” The Plaintiffs claimed the mattress “sagged, and that sleeping on it caused or exacerbated Vincent’s spine, back, neck, and jaw injuries.”

While the parties were conducting discovery, the plaintiffs settled with the retailer. The trial court then denied them leave to amend their complaint against the manufacturer [Tempur-Pedic], and they voluntarily dismissed those claims before filing a new lawsuit.

Tempur-Pedic “moved for costs as the prevailing party in the dismissed lawsuit. The trial court ordered the consumers to pay some of their costs, including the costs of depositions and service of process. On appeal, the consumers argue it was improper to award costs related to depositions that were noticed but did not occur.”

So the issue here was depositions. 8 depositions were noticed, and only 3 went forward for various reasons. After dismissal, Tempur-Pedic sought costs for noticing these depos against Plaintiffs. Plaintiffs sought to tax these costs, and the Trial Court held in favor of Defendants by holding to not tax the costs.

And the Court of Appeal here agrees “with the trial court that it is legally proper to award such costs.”

This is what Plaintiffs argued. And the Court here says “[t]here is no blanket reason to conclude that the costs for depositions that did not occur were unwarranted when they were noticed. It is no importance to the award of costs that the litigation terminated in Tempur-Pedic’s favor before the depositions were completed.” The Court here also says “courts routinely refuse to tax costs on the ground that a deponent did not end up testifying or providing useful testimony at trial.”

The Court here says these can also be recovered, saying “[w]e conclude a late cancellation fee paid to a reporter may likewise be recovered as an expense related to taking a deposition.”