Ruling On Voluntary Mediation Costs Show It Is Likely A Discretionary Issue For Trial Judge.
Co-contributor Mike litigated a case in Stockton County Superior Court before Judge Elizabeth Humphreys in which the defense prevailed, filing a memorandum of costs for certain expenses. We now describe how she ruled on certain issues to demonstrate how they are pragmatically evaluated in a state court case on a motion to tax certain category of costs by the losing plaintiff:
- Hotel Expenses For Out-of-Venue Counsel Participating In a Deposition: The trial judge found the expenses were compensable under Thon v. Thompson, 29 Cal.App.4th 1546, 1548 (1994), dismissing challenges to the reasonableness of the claimed hotel expenses.
- Service Expenses On Opponent’s Damages Expert: Although finding they were compensable, the trial judge reduced the amount based on evidence from the opponent that service could have been effectuated more cheaply by a local service organization. (NOTE: This is somewhat interesting, given that out-of-venue attorneys may use service arrangements through their law firm providers in a foreign venue, but this ruling suggests that more competitive arrangements may need to be assessed. However, we would note that more recent legislation has likely mooted this issue, given that an expert noticed for a deposition must provide expert information in advance of a deposition, unlike the subpoena procedure which had to be used in this case before enactment of the more recent legislation. See Code Civ. Proc., § 2034.415.)
- Trial Court Reporter Appearance Fees: The trial judge determined this was expressly allowed by Code of Civil Procedure section 1033.5(a)(11), especially given that the defense was not seeking reimbursement of court reporter trial transcripts not ordered by the court.
- Voluntary Mediation Expenses Incurred by the Defense: The trial judge noted that this expense is “an apparently undecided question of law” on entitlement, based on Gibson v. Bobroff, 49 Cal.App.4th 1202, 120 n. 7 (1996) and Sanford v. Rasnick, 246 Cal.App.4th 1121, 1133 (2016). However, Judge Humphreys believed this was a costs item which she could allow in her discretion. She did tax the mediator fees expended by the defense based on the view that the defense did not establish whether this was necessary versus merely convenient, although noting that the mediation confidentiality protections could make it difficult to show that it was absolutely necessary. (NOTE: Given that our judicial system promotes settlement, increasingly through voluntary ADR procedures, the Legislature might want to contemplate an amendment to allow these expenses as expressly allowable. Otherwise, the mediation confidentiality protections likely will not make these costs recoverable in nature if the party claiming costs has to justify them as necessary).