Appellate Court Also Has Specific Discussion On Reasonable Photocopy Expenses, PowerPoint Technician Costs, And Court Reporter Fee Charges
We have to say that the 2/2 DCA’s unpublished decision in Haroun v. BMW of North America, LLC, Case No. B272279 (2d Dist., Div. 2 Sept. 5, 2017) (unpublished) has a great discussion of general routine costs principles as well as specific guidance on exhibit photocopying, PowerPoint technician, and court reporter fee expenses which are recoverable.
In this one, BMW defensed a suing plaintiff in a Song-Beverly Consumer Warranty Act “lemon law” suit after a jury exonerated BMW, with BMW moving to recoup $23,682 in routine costs. The trial judge eventually awarded BMV $23,329 in costs, prompting an appeal. The 2/2 DCA affirmed, but reduced the routine costs by $4,200.
Initially, the Court of Appeal “set the stage” for what routine costs are recoverable by a prevailing party under Code of Civil Procedure section 1033.5, nixing losing plaintiff’s suggestion that some exception should be carved out for “lemon law” cases: (1) certain costs are expressly allowable if reasonably necessary for the litigation and reasonable in amount; (2) certain costs are not expressly allowable; and (2) costs not expressly enumerated as allowable or not allowable are awardable in the trial court’s discretion. As far as burdens are concerned in a cost proceeding, the prevailing party bears the initial burden to establish the costs are allowable based on a verified cost bill appearing “proper on its face.” If this burden is met, then it shifts to the losing party to refute the propriety of claimed costs, with a simple objection not doing the trick. On appeal, the appellate court reviews any interpretation of the costs statutes de novo, reviews findings that a cost is reasonably necessary and reasonable in amount for substantial evidence, and reviews any award of discretionary costs for an abuse of discretion.
Now we get to the specifics.
Trial exhibit photocopying charges. These are expressly allowable under CCP § 1033.5(a)(13) even if the trial exhibits were not used at trial but were potentially helpful to the trier of fact. In deciding that the trial judge properly allowed exhibit photocopying expenses, the appellate court disagreed with Seever v. Copley Press, Inc., 141 Cal.App.4th 1550 (2006) to the extent that a lower court cannot award costs even if the exhibits are not admitted into evidence. It also indicated that black and white copying charges of 15 cents per page were reasonable, and sustained color copy charges of 65 cents per page.
PowerPoint trial technician expenses. Based on reasoning from Bender v. County of Los Angeles, 217 Cal.App.4th 968, 990-991 (2013), the 2/2 DCA panel concluded that PowerPoint technician expenses during trial were recoverable—noting that use of such technology has become commonplace in modern trials.
Private court reporter expenses for court reporters used during trials. Although reducing for an earlier deposit to avoid a “double dip” for expenses, the Court of Appeal did allow for private court reporter fees during trial given that court reporter fees (whether private or court-provided, with everyone acknowledging the latter is not usually present given budgetary concerns in California state courts) are different from transcripts produced by those reporters—with only court-ordered transcripts being allowable. As far as the amount of court reporter fees, the government caps applicable to court-provided reporters did not apply to private reports, a tip which should be useful to prevailing parties in costs proceedings.