Non-testifying Physician Deposition Costs, Videotaped Deposition Costs, And “Real-Time” Deposition Transcript Costs Properly Awarded By Lower Court Below.
Leduc v. West Anaheim Medical Center, Case No. G049895 (4th Dist., Div. 3 Aug. 24, 2015) (unpublished) has a good discussion of routine trial costs awardable in the discretion of the trial judge. It discusses burden of proof, specific items, and substantiation in the process, all authored by Acting Presiding Justice Bedsworth on behalf of a 3-0 panel of the 4/3 DCA.
The essential backdrop is that plaintiff did not win her wrongful termination lawsuit and was hit with some routine costs after the defendant submitted a costs memorandum in the amount of $29,218, although some were granted and some were denied. Plaintiff requested that the entire costs memorandum be stricken as untimely filed, which was denied.
Plaintiff’s challenges on appeal were not persuasive.
As far as lateness, it was true the defense filed the costs memorandum too late, but the trial judge’s finding that she was not prejudiced and considering same in light of non-prejudice determination resolved the issue properly—given the time limits for filing a costs memorandum are not jurisdictional and a lower court has discretion to allow a late filing sans prejudice.
Because all of the costs were specifically awardable under the CCP, the burden of proving they were unreasonable or unnecessary fell on plaintiff. This burden issue is an important one that is iterated time and time again in both published and unpublished decisions.
Now, the appellate court turned to the specifics. With respect to non-testifying physician deposition costs, these are recoverable based on the “reasonable/necessary” discretionary standard. (Culbertson v. R.D. Werner Co., Inc., 190 Cal.App.3d 704, 711-712 (1987).) Videotaping deposition expenses are expressly allowable under CCP § 1033.5(a)(3), whether the deponent is available or not. “Real-time” deposition transcript expenses are permissible given that no proof was presented to show they were “more expensive than some other kind or even that in modern litigation practice some other kind of transcript is customarily available.” (Slip Op., p. 6.) Finally, there is no absolute requirement that copies of bills, invoices, or statements be attached to a costs memorandum unless the amounts have truly been put at issue, which was not the case in Leduc. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1267 (1998).)