Mickey Segal v. Asics America Corporation

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 Code of Civil Procedure1 section 1033.5,

subdivision (a)(13). We publish to explain why we have concluded

they may and include our pragmatic take on why having wellprepared counsel is “reasonably helpful to aid the trier of fact”—

the test for cost recovery under the statute.

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.

1 All further undesignated statutory references are to the

Code of Civil Procedure.

3

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 not allowed as a matter of law,”

were unreasonable, and “were not reasonably necessary in

defending this litigation.”

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 section 1032, subdivision (b), “a prevailing

party is entitled as a matter of right to recover costs in any action

or proceeding.” “[S]ection 1033.5 sets forth the items that are and

are not allowable as the costs recoverable by a prevailing party

under section 1032[.]” (Chaaban v. Wet Seal, Inc. (2012) 203

Cal.App.4th 49, 52.) Specifically, section 1033.5, subdivision (a)

enumerates the items that are allowable as costs, while

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subdivision (b) lists the items for which costs may not be

recovered. (§ 1033.5, subds. (a) & (b).) Under section 1033.5,

subdivision (c)(4), however, cost items that are neither permitted

under subdivision (a) nor prohibited under subdivision (b) may

nevertheless be “allowed or denied in the court’s discretion.”

(§ 1033.5, subd. (c)(4); see also Applegate v. St. Francis Lutheran

Church (1994) 23 Cal.App.4th 361, 363-364 (Applegate).) All costs

awarded, whether expressly permitted under subdivision (a) or

awardable in the trial court’s discretion under subdivision (c),

must be “reasonably necessary to the conduct of the litigation”

and be “reasonable in amount.” (§ 1033.5, subds. (c)(2) & (3).)

“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.]” (Brawley v.

J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137-1138

(Brawley).)

II. Exhibit Photocopies and Demonstratives

Under section 1033.5, subdivision (a)(13), costs for

“[m]odels, the enlargements of exhibits and photocopies of

exhibits, and the electronic presentation of exhibits, including

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costs of rental equipment and electronic formatting, may be

allowed if they were reasonably helpful to aid the trier of fact.”

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 section 1033.5, subdivision (a)(13), as most of

them were not shown to the jury, and thus were not “reasonably

helpful to aid the trier of fact.”

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 section 1033.5, subdivision

(a)(13) requiring exhibits be “reasonably helpful to aid the trier of

fact” to “exclude[] as a permissible item of costs exhibits not used

at trial, which obviously could not have assisted the trier of fact.

[Citations.]” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th

1550, 1557-1558 (Seever); see also Ladas v. California State

Automobile Assn. (1993) 19 Cal.App.4th 761, 775 (Ladas) [holding

“fees are not authorized for exhibits not used at trial” under

section 1033.5, subdivision (a)].) Moreover, in Seever, the court

further held costs for exhibits not used at trial are not awardable

in the trial court’s discretion under section 1033.5, subdivision

(c)(4). (Seever, supra, 141 Cal.App.4th at pp. 1559-1560.) The

Seever court reasoned that by allowing costs associated with

exhibits only where they are “reasonably helpful to aid the trier

of fact” under section 1033.5, subdivision (a)(13), the Legislature

intended to preclude courts from exercising discretion to award

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costs for these items when the conditions in subdivision (a)(13)

are not met. (Ibid, italics omitted.)

By contrast, in the cases cited by ASICS, the reviewing

courts held costs related to exhibits not used at trial may be

awarded under section 1033.5, subdivision (c)(4). (Applegate,

supra, 23 Cal.App.4th at pp. 364-365; Benach v. County of Los

Angeles (2007) 149 Cal.App.4th 836, 856-857 (Benach).) These

courts reasoned costs associated with unused exhibits were

awardable in the trial court’s discretion because “[a]n

experienced trial judge could recognize that it would be

inequitable to deny as allowable costs exhibits which a prudent

attorney would prepare in advance of trial.” (Applegate, supra, 23

Cal.App.4th at p. 364; Benach, supra, 149 Cal.App.4th at p. 856.)

We decline to follow the cases cited by Size It. In our view,

interpretation of section 1033.5, subdivision (a)(13) must reflect

the reality of how complicated cases are tried. As the Benach and

Applegate courts acknowledged, prudent 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. 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). (Super. Ct. L.A. County,

Local Rules, rule 3.52.) 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

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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.

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, does so, and then proceeds with

examination. This is the cumbersome procedure that must be

followed for documents that have not been pre-marked prior to

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trial. (See Super. Ct. L.A. County, Local Rules, rules 3.149, 3.150,

3.151, & 3.155.).

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 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

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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).

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, Japan, because ASICS improperly sought

expenses for sending two lawyers to Kobe, Japan, to prepare

deponents for depositions a week before they took place.

Specifically, Size It contends ASICS’s request for these expenses

exceeded the scope of section 1033.5, subdivision (a)(3)(C) because

this provision permits recovery of travel expenses for only one

lawyer’s attendance at a deposition, and does not allow for

recovery of travel expenses associated with counsel’s preparation

of a deponent prior to his or her deposition. ASICS counters Size

It’s contentions are unsupported by legal authority and, in any

event, the travel expenses were properly awarded in the trial

court’s discretion under section 1033.5, subdivision (c)(4). We

agree with ASICS.

Under section 1033.5, subdivision (a)(3)(C), a prevailing

party may recover “[t]ravel expenses to attend depositions” as

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costs (§ 1033.5, subd. (a)(3)(C).) As ASICS points out, Size It has

not cited—and we cannot find—any authority to support its

assertion that travel expenses may not be awarded for more than

one lawyer’s attendance at a deposition. Further, Size It does not

explain how its proffered limitation on costs awardable is

supported by the statute’s plain language or legislative history.

Thus, Size It appears to do nothing more than ask us to read into

section 1033.5, subdivision (a)(3)(C) a restriction that does not

exist. This we cannot do. (See LAOSD Asbestos Cases, supra, 25

Cal.App.5th at p. 1124.)

Size It’s argument is also unavailing because it would

require us to interpret section 1033.5, subdivision (a)(3)(C) in a

manner that does not reflect the reality of how complicated cases

are prepared for trial. It is common for a party to send more than

one attorney to take or defend a deposition. Indeed, in this case,

ASICS and Size It each sent two attorneys to attend the

depositions held in Japan. Thus, it makes little sense to restrict

recovery of travel expenses under this statute to those incurred

by one lawyer’s attendance at a deposition.

Additionally, even assuming ASICS was not entitled to

recover all the travel expenses associated with the depositions

taken in Japan under section 1033.5, subdivision (a)(3)(C)—such

as the expenses regarding the deponents’ pre-deposition

preparation in Kobe—Size It does not appear to dispute ASICS’s

contention that the court could properly award these costs in its

discretion under section 1033.5, subdivision (c)(4). Indeed, Size It

does not reference subdivision (c)(4) while challenging the court’s

award of travel expenses in its opening brief. Nor did Size It file a

reply brief to address the arguments based on subdivision (c)(4)

presented in ASICS’s brief.

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In any event, we conclude the travel expenses at issue were

properly awardable under section 1033.5, subdivision (c)(4). The

depositions of Oyama, Kato, and Tamai were noticed by Size It

and ordered to be taken in Japan. All of the deponents lived in

Kobe, and two of them were defendants. Based on ASICS’s

unchallenged evidence, each of the depositions involved complex

topics and issues. Given these circumstances, and the fact that

Size It also sent two attorneys to attend these depositions, the

trial court could reasonably conclude it was appropriate for

ASICS to send two attorneys to Kobe to prepare the deponents

for their depositions a week before they were taken, and to

defend these depositions.

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 section 1033.5, subdivision (a)(12), which

permits recovery of interpreter fees only “for an indigent person

represented by a qualified legal services project . . . or a pro bono

attorney[.]” (§ 1033.5, subd. (a)(12).) Consequently, Size It

asserts, because the record lacks evidence demonstrating Oyama

and Tamai were indigent, or that they were represented by pro

bono counsel, the court should have taxed these costs. ASICS

responds the court properly awarded the deposition interpreter

fees under section 1033.5, subdivision (a)(3)(B), which allows for

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recovery of interpreter fees “for the deposition of a party or

witness who does not proficiently speak or understand the

English language.” (§ 1033.5, subd. (a)(3)(B).) Again, we agree

with ASICS.

As an initial matter, we note that even if the interpreter

fees incurred at Oyama’s and Tamai’s depositions were not

awardable under section 1033.5, subdivision (a)(12), Size It does

not dispute ASICS’s contention that these costs could

alternatively be recovered under section 1033.5, subdivision

(a)(3)(B). Size It also does not challenge the court’s ruling

awarding ASICS interpreter fees for Tamai’s deposition under

this provision, having found “it [was] not established that

[Tamai] could speak or understand the English language with

ease.” Nor does Size It identify any evidence in the record

indicating Tamai was proficient in English. Thus, we conclude

Size It has not shown the court erred in declining to tax the

interpreter fees for Tamai’s deposition.

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 at trial he could speak and read English.

While Size It correctly observes Oyama did testify he “speak[s]

and read[s] English with ease,” Size It’s argument is unavailing

because the record contains ample other evidence to support a

finding that Oyama could not “proficiently speak or understand

the English language.” At trial, Oyama testified Japanese was

his first language, and explained he was testifying with an

interpreter to ensure he could “hear the questions as accurately

as possible” and “answer [the questions] accurately with

appropriate expressions.” He also testified that while he could

speak, read, and write English, he regularly conducts business

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with the assistance of English interpreters to “avoid making

mistakes when [he is] speaking” and to “confirm what [he is]

hearing.”

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

section 1033.5, subdivision (a)(3)(B), the trial court did not abuse

its discretion in refusing to tax these costs.

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 section 1033.5,

subdivision (c)(4).

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 section 1033.5, subdivision (a)(3)(B), we

conclude the court also did not err in refusing to tax the costs for

his trial interpreter fees under section 1033.5, subdivision (c)(4).2

2 Though not entirely clear, Size It also appears to assert

the trial court erred in refusing to tax the interpreter fees at

The order granting in part and denying in part the motion

to tax costs is affirmed. ASICS is awarded its costs on appeal.