Can a Judge award CCP 1032 costs against a losing party even if the Party did not use the costed materials?

by Eric Ganci

First, a little background to set up the discussion regarding this January 13, 2022 California Supreme Court decision Segal v. ASICS, cited as 12 Cal.5th 651.

In California, if you file a lawsuit against another party, if the case does not resolve, the case may go to trial. For example, us as personal injury attorneys: we file suits against many insurance companies. If we do not reach settlement with the insurance company, then the case may proceed to a trial.

Filing lawsuits and going to trial costs money (shocking, I know). This begs the question, if you go to trial and win against the other side, can you recover certain costs against the losing party?

The answer is yes, per California Code of Civil Procedure 1032(b): “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

There is a much to consider with how to define “costs” although California Code of Civil Procedure 1033.5 lists specific costs allowed and prohibited.

Alright, background aside: the next question is what if the lawyer spends money for trial as a “cost” but ultimately does not use that item for trial? And this is what Segal is about.

In Segal, one party paid to make “photocopies of exhibits, exhibit binders, and closing argument demonstrative aids” which ultimately the attorneys did not use at the actual trial. So the Jurors never saw these exhibits and copies. That led to the question: if the lawyer did not actually use the exhibit at trial, is that a cost recoverable per CCP 1032?

The answer is yes, it may be recoverable…but the Cal Supremes needed to step through the weeds (or tulips?) a little to conclude this.

The first legal question was whether “unused photocopies of trial exhibits and demonstratives [were] categorically recoverable under section 1033.5(a)(13)….” The Court concludes these specific costs are not categorically recoverable.

Let’s dive a little deeper. Specifically, CCP 1033.5(a)(13) allows for costs of “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting…if they were reasonably helpful to aid the trier of fact.”

That language at the end, that was a talking point: is something created but not used “reasonably helpful”? Again, the Court says categorically the answer is no.

Ah, ok. But is this the end? Nope: the next question is even if these costs are not categorically recoverable, can the Judge still make the other side pay for these same costs. The answer here is yes, a Judge may. These specific costs “may still be awarded in the trial court’s discretion pursuant to section 1033.5(c)(4).”