Second District, Division 7 Clarifies Costs Discretionary “Safety Net.”
Frequently, we have litigated cases where opponents or trial courts are disposed to fight award of routine costs unless they are expressly allowable under Code of Civil Procedure section 1033.5(a). Well, believe it or not, that is not quite right. The next case puts things in proper perspective.
Philadelphia Indemnity Ins. v. Fire Ins. Exchange, Case No. B205732 (2d Dist., Div. 7 July 15, 2009) (unpublished) clarifies the scope of the routine cost statutory scheme. “When [CCP section 1033.5] subdivision (c) is read together with the rest of the statute, courts have concluded that if an expense is neither expressly allowable under subdivision (a) nor expressly prohibited under subdivision (b), it may nevertheless be recovered if, in the court’s discretion, it is ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ (Section 1033.5, subd. (c)(2); see also Science Applications International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095, 1103; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1622, 1623; Winston Square Homeowner’s Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 293.)” (Slip Opn., at p. 25.)
The Court of Appeal went on to affirm trial court determinations that ex parte application costs, counsel’s deposition travel time, and witness travel costs were justifiable costs to be awarded under the lower court’s discretionary subdivision (c) authority—which it labeled “a special statutory safety net.” (Slip Opn., at p. 29.)