Segal v. ASICS America Corp.

IN THE SUPREME COURT OF

CALIFORNIA

MICKEY SEGAL et al.,

Plaintiffs and Appellants,

v.

ASICS AMERICA CORPORATION et al.,

Defendants and Respondents.

S263569

Second Appellate District, Division Four

B299184

Los Angeles County Superior Court

BC597769

January 13, 2022

Chief Justice Cantil-Sakauye authored the opinion of the Court,

in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and

Irion* concurred.

*

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division One, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

SEGAL v. ASICS AMERICA CORPORATION

S263569

Opinion of the Court by Cantil-Sakauye, C. J.

A prevailing party in civil litigation is entitled to recover

costs incurred in the litigation. (Code Civ. Proc., § 1032,

subd. (b).) Code of Civil Procedure section 1033.5 1 sets forth

specific items of costs that are allowed or prohibited. (§ 1033.5,

subds. (a), (b).) The statute also authorizes the trial court in its

discretion to award or deny an item of costs not mentioned in

this section. (§ 1033.5, subd. (c)(4).)

We granted review to resolve a conflict among the Courts

of Appeal regarding whether costs incurred in preparing

photocopies of exhibits and demonstrative aids for trial are

recoverable under section 1033.5 even if they were not

ultimately used at trial. In this case, the Court of Appeal held

that such exhibit-related costs are recoverable under section

1033.5, subdivision (a)(13) (hereinafter section 1033.5(a)(13)),

which allows the recuperation of costs for models, enlargements,

and photocopies of exhibits “if they were reasonably helpful to

aid the trier of fact.” The court further held that such costs may

be awarded in the trial court’s discretion under section 1033.5,

subdivision (c)(4) (hereinafter section 1033.5(c)(4)).

For the reasons set forth below, we conclude that costs

related to unused photocopies of trial exhibits and

1

All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

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demonstratives are not categorically recoverable under section

1033.5(a)(13), but they may still be awarded in the trial court’s

discretion pursuant to section 1033.5(c)(4). Accordingly, we

affirm the Court of Appeal, although on slightly narrower

grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Size It, LLC, and Mickey Segal (collectively,

plaintiffs) sued defendants ASICS America Corporation, ASICS

Corporation, Kevin Wulff, Kenji Sakai, Motoi Oyama, and

Katsumi Kato (collectively, defendants) for fraud. The case

proceeded to trial, and the jury rendered a verdict in defendants’

favor.

Defendants subsequently filed a memorandum of costs

pursuant to section 1032. Plaintiffs moved to tax costs; that is,

they asked the court to deny or reduce several of defendants’

claimed costs. As pertinent here, plaintiffs challenged the costs

associated with preparing photocopies of exhibits, exhibit

binders, and closing argument demonstrative aids that were

prepared for but ultimately not used at trial. Defendants

opposed the motion.

Following a hearing, the trial court granted plaintiffs’

motion in part and denied it in part. As relevant here, the court

allowed defendants to recover their costs associated with

photocopying trial exhibits, creating exhibit binders, and

preparing demonstrative boards and slides even though they

were not used at trial.

The Court of Appeal affirmed the ruling on the motion to

tax costs. (Segal v. ASICS America Corp. (2020) 50 Cal.App.5th

659, 667 (Segal).) It held that costs associated with unused

demonstratives and photocopies of trial exhibits are recoverable

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under section 1033.5(a)(13). (Segal, at pp. 666–667.) In

reaching its conclusion, the Court of Appeal expressly disagreed

with the analysis of section 1033.5(a)(13) set out in two prior

appellate court decisions — Seever v. Copley Press, Inc. (2006)

141 Cal.App.4th 1550 (Seever) and Ladas v. California State

Auto. Assn. (1993) 19 Cal.App.4th 761 (Ladas). (Segal, at

p. 667.) The Court of Appeal further held that these costs are

also allowable in the trial court’s discretion under section

1033.5(c)(4). (Segal, at p. 667.) The Court of Appeal’s

interpretation of section 1033.5(c)(4), although in conflict with

the Seever decision, was consistent with the holdings reached in

Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836

(Benach) and Applegate v. St. Francis Lutheran Church (1994)

23 Cal.App.4th 361 (Applegate).

As noted, we granted review to resolve the conflict.

II. DISCUSSION

Generally, a trial court’s award of costs is reviewed for

abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327,

1332.) Yet when the issue is one of statutory interpretation, it

presents a question of law that we review de novo. (Ibid.)

A prevailing party is entitled “as a matter of right” to

recover costs in any action or proceeding unless a statute

expressly provides otherwise. (§ 1032, subd. (b).) Section 1033.5

sets forth the types of expenses that are and are not allowable

as costs under section 1032. Specifically, subdivision (a) of

section 1033.5 describes items that are “allowable as costs,”

subdivision (b) describes items “not allowable as costs, except

when expressly authorized by law,” and section 1033.5(c)(4)

provides that “[i]tems not mentioned in this section and items

assessed upon application may be allowed or denied in the

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court’s discretion.” All costs, whether expressly permitted under

section 1033.5, subdivision (a) or awarded in the trial court’s

discretion pursuant to section 1033.5(c)(4), must be “reasonably

necessary to the conduct of the litigation rather than merely

convenient or beneficial to its preparation” (§ 1033.5,

subd. (c)(2)) and “reasonable in amount” (§ 1033.5, subd. (c)(3)).

Section 1033.5(a)(13) provides that costs for “[m]odels, the

enlargements of exhibits and photocopies of exhibits, and the

electronic presentation of exhibits, including costs of rental

equipment and electronic formatting, may be allowed if they

were reasonably helpful to aid the trier of fact.” As noted above,

there is a split of appellate authority regarding whether costs

associated with unused demonstratives and photocopies of trial

exhibits are recoverable, either categorically under section

1033.5(a)(13) or in the court’s discretion pursuant to section

1033.5(c)(4).

A. The Conflicting Appellate Court Decisions

In Ladas, the appellate court held that costs associated

with photocopies of exhibits, exhibit binders, blowups, and

transparencies prepared for but not used at trial are not

allowable as costs under section 1033.5(a)(13). (Ladas, supra,

19 Cal.App.4th at p. 775.) It observed: “Section 1033.5, [former]

subdivision (a)(12)[, now subdivision (a)(13),] provides that

expenses of trial exhibits ‘may be allowed if they were reasonably

helpful to aid the trier of fact.’ (Italics added.) It follows that

fees are not authorized for exhibits not used at trial.” (Ibid.)

The Ladas court concluded that because the case was dismissed

before trial, the prevailing party “failed to qualify for recovery of

exhibit costs under this standard.” (Ibid.)

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Subsequent to Ladas, however, the appellate court in

Applegate concluded that costs incurred in preparing unused

trial exhibits are allowable under a different provision of the

costs statute. (Applegate, supra, 23 Cal.App.4th at pp. 363–

364.) In Applegate, the plaintiff dismissed the action on the day

of trial. (Id., at p. 364.) Nevertheless, the reviewing court held

that the trial court did not abuse its discretion in allowing the

defendant to recover costs incurred in preparing such exhibits

under section 1033.5(c)(4). (Applegate, at p. 364.) It reasoned

that “[t]he exhibits prepared were ‘reasonably necessary to the

conduct of the litigation’ ” because they were made for a trial

that the defendants “were forced to continue preparing for” until

a dismissal was filed. (Ibid.) The Applegate court characterized

its holding as follows: “An experienced trial judge recognized

that it would be inequitable to deny as allowable costs exhibits

which a prudent attorney would prepare in advance of trial, and

which were not used only because the action was dismissed by

the opposing party on the day of trial.” (Ibid.) In a footnote, the

Applegate court acknowledged that the appellate court in Ladas

had disallowed such costs, but distinguished that decision on the

ground that “Ladas only considered whether the exhibit costs

were allowable under section 1033.5, [former] subdivision

(a)(12)[, now subdivision (a)(13)], not whether they could be

awarded in the trial court’s discretion under subdivision (c)(4).”

(Applegate, at p. 363, fn. 4.)

Yet after Applegate, another reviewing court held that

costs related to preparing unused trial exhibits are not

recoverable under section 1033.5(a)(13) or section 1033.5(c)(4).

(Seever, supra, 141 Cal.App.4th at pp. 1558–1560.) In Seever,

the appellate court concluded, as the Ladas court had, that the

statutory language of section 1033.5(a)(13) (then numbered as

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subdivision (a)(12)) “[o]n its face . . . excludes as a permissible

item of costs exhibits not used at trial, which obviously could not

have assisted the trier of fact.” (Seever, at p. 1557.) The Seever

court further determined that in light of the limiting language

of section 1033.5(a)(13), costs related to unused exhibits are also

not awardable in the trial court’s discretion under section

1033.5(c)(4). (Seever, at pp. 1558–1560.) The court reasoned

that by imposing express limitations regarding the type of

exhibit costs that are allowable under section 1033.5(a)(13)

(exhibits that were reasonably helpful to aid the trier of fact),

the Legislature sought to preclude courts from exercising

discretion to award costs for those items when the conditions in

section 1033.5(a)(13) are not met. (Seever, at pp. 1558–1560.)

Thus, the Seever court concluded, “[T]he discretion granted in

section 1033.5, subdivision (c)(4), to award costs for items not

mentioned in section 1033.5 is simply inapplicable” under the

circumstances. (Seever, at pp. 1559–1560.) In so ruling, the

Seever court expressly disagreed with Applegate’s holding that

only those costs items expressly prohibited by section 1033.5,

subdivision (b) are outside the scope of the trial court’s

discretionary authority under section 1033.5(c)(4). (Seever, at

pp. 1558–1559.)

The Seever court pointed to other provisions of section

1033.5, subdivision (a) that, by their terms, implicitly excluded

permissible items of costs, even though they were not expressly

prohibited under subdivision (b). (Seever, supra,

141 Cal.App.4th at p. 1559.) The court observed: “Perhaps most

obviously, Code of Civil Procedure section 1033.5, subdivision

(a)(10), provides attorney fees are allowable as costs when

authorized by contract, statute or law. Although section 1033.5,

subdivision (b), does not address attorney fees, no one would

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contend the trial court has discretion under section 1033.5,

subdivision (c)(4), to award attorney fees as costs in a case not

included within one of the three subdivision (a)(10) categories,

based on a showing the fees incurred were ‘reasonably necessary

to the conduct of the litigation.’ Similarly, section 1033.5,

subdivision (a)(3), authorizes the recovery of costs for taking,

videotaping, and transcribing necessary depositions (whether or

not actually used at trial), including an original and one copy of

depositions taken by the claimant and one copy of depositions

taken by the party against whom costs are allowed. Deposition

copies, therefore, are plainly not one of those ‘[i]tems not

mentioned in this section’: The Legislature has expressly stated

how many copies may be included as recoverable costs; and, in

our view, the trial court has no discretion under section 1033.5,

subdivision (c)(4), to permit recovery for additional copies even

if the prevailing party is able to demonstrate those copies were

reasonably necessary to the conduct of the litigation.” (Ibid.)

According to the Seever court, because section 1033.5(a)(13) has

expressly stated what is allowable, section 1033.5(c)(4) does not

apply. (Seever, at pp. 1559–1560.)

Nevertheless, just one year after Seever was decided, a

different division of the same appellate district held that costs

for unused trial exhibits are recoverable in the trial court’s

discretion under section 1033.5(c)(4). (Benach, supra,

149 Cal.App.4th at pp. 855–856.) In Benach, as in Applegate,

the reviewing court explained that it would be inequitable to

deny as allowable and recoverable those costs relating to

exhibits that any prudent counsel would prepare in advance of

trial. (Benach, at p. 856.) The Benach court noted that the

parties in that case had specifically agreed to and completed a

mutual exchange of exhibits before trial, and prepared exhibit

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binders for use by the court and witnesses. (Ibid.) The appellate

court also observed that nothing suggested the prevailing party

could have anticipated that many of its prepared exhibits would

not be used at trial. (Ibid.) The Benach court did not attempt

to distinguish or even acknowledge the Seever decision.

B. The Decision Below

In this case, the Court of Appeal held that costs incurred

in preparing photocopies of exhibits and demonstratives for trial

are recoverable as a matter of right under section 1033.5(a)(13)

and in the trial court’s discretion pursuant to section

1033.5(c)(4), even though they were not ultimately used at trial.

(Segal, supra, 50 Cal.App.5th at p. 667.) As a preliminary

matter, the Court of Appeal determined that the “interpretation

of section 1033.5, subdivision (a)(13) must reflect the reality of

how complicated cases are tried.” (Segal, at p. 666.) The court

emphasized that prudent counsel must prepare exhibits well in

advance of trial, and yet even the most experienced lawyers will

have difficulty guessing which exhibits and demonstrative aids

will actually be used due to the inherent unpredictability of

trial. (Ibid.) The Court of Appeal also emphasized that

applicable local rules may require the pretrial exchange and

premarking of all exhibits that might be used at trial, and, as in

this case, “the trial court’s own procedures often require counsel

to premark and prepare multiple copies of their exhibits.” (Ibid.)

The court further reasoned that even if exhibit binders contain

documents never offered or admitted at trial, their preparation

facilitates trial proceedings and helps avoid wasting jurors’

time. (Ibid.) Because the pretrial preparation of exhibit

photocopies, binders, and demonstrative aids allow trials to

proceed more efficiently, the court reasoned, “[T]hey are

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‘reasonably helpful to aid the trier of fact’ ” and therefore

recoverable under section 1033.5(a)(13). (Segal, at p. 666.)

In reaching this holding, the Court of Appeal expressly

disagreed with Ladas and Seever. (Segal, supra, 50 Cal.App.5th

at p. 667.) In the Court of Appeal’s view, the Seever and Ladas

courts had “ ‘ “ ‘ “read into the statute allowing costs a

restriction which has not been placed there.” ’ ” ’ ” (Segal, at

p. 667.) The Court of Appeal reiterated 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 which the trier

of fact is asked to perform that task.” (Ibid.)2

For the same reasons, the Court of Appeal also concluded

that costs incurred in preparing unused trial exhibits are

permitted in the trial court’s discretion under section

1033.5(c)(4). (Segal, supra, 50 Cal.App.5th at p. 667.)

C. Analysis

Plaintiffs maintain that defendants are not entitled to

recover costs for unused trial exhibits and demonstratives under

section 1033.5(a)(13) because the plain language of the statute

does not encompass such items. We agree.

“ ‘ “ ‘When we interpret a statute, “[o]ur fundamental

task . . . is to determine the Legislature’s intent so as to

effectuate the law’s purpose. We first examine the statutory

2

The Court of Appeal did not fully quote section

1033.5(a)(13), which allows the recovery of costs for certain

items that “were reasonably helpful to aid the trier of fact.”

(Italics added.)

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language, giving it a plain and commonsense meaning. We do

not examine that language in isolation, but in the context of the

statutory framework as a whole in order to determine its scope

and purpose and to harmonize the various parts of the

enactment. If the language is clear, courts must generally follow

its plain meaning unless a literal interpretation would result in

absurd consequences the Legislature did not intend. If the

statutory language permits more than one reasonable

interpretation, courts may consider other aids, such as the

statute’s purpose, legislative history, and public policy.”

[Citation.] “Furthermore, we consider portions of a statute in

the context of the entire statute and the statutory scheme of

which it is a part, giving significance to every word, phrase,

sentence, and part of an act in pursuance of the legislative

purpose.” ’ ” ’ [Citation.] The interpretation of a statute

presents a question of law that this court reviews de novo.”

(Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190.)

As observed earlier, section 1033.5(a)(13) provides that

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

of exhibits, and the electronic presentation of exhibits, including

costs of rental equipment and electronic formatting, may be

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

(Italics added.) The statutory language on its face excludes

unused demonstratives and photocopies of exhibits because they

did not assist the trier of fact. In describing which exhibit-

related costs are allowable, the Legislature used the past tense,

i.e., if the items “were reasonably helpful” (ibid., italics added) —

not if they “would be” or “could be” reasonably helpful. Because

this criterion is phrased in the past tense, it conveys that the

models, enlargements of exhibits, and photocopies of exhibits

must have, in fact, assisted the trier of fact. And the trier of fact

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engages in a determination of factual issues in a judicial

proceeding. According to Black’s Law Dictionary, the “trier of

fact,” also termed “fact-finder,” is “[o]ne or more persons who

hear testimony and review evidence to rule on a factual issue.”

(Black’s Law Dict. (11th ed. 2019) pp. 1815, 737; see id., at p. 737

[noting that “fact-finder” is termed “trier of fact” “in a judicial

proceeding” (italics omitted)].) We have similarly observed that

the term “trier of fact” “recognizes the factual, rather than

strictly legal, character of the inquiry[,]” and “is used

interchangeably to refer to a judge or jury.” (Cornette v.

Department of Transportation (2001) 26 Cal.4th 63, 75.) Thus,

costs for models, enlargements, and photocopies of exhibits are

allowable under section 1033.5(a)(13) only if they were put

before the trier of fact.3 Demonstratives and photocopies of trial

exhibits would not have assisted the trier of fact in resolving the

pertinent factual issues in a case if they were never used.

As stated, the Court of Appeal below took a broader view

of section 1033.5(a)(13). Explaining that the interpretation of

this provision “must reflect the reality of how complicated cases

are tried,” the court concluded that because the “pretrial

preparation of exhibit photocopies and demonstratives

reasonably anticipated for use at trial expedites the

proceedings,” allowing trials to proceed more efficiently, such

3

We recognize that the Court of Appeal recently addressed

the related, yet distinct issue of whether photocopies of exhibits

used in a non-trial proceeding are recoverable under section

1033.5(a)(13). (Rozanova v. Uribe (2021) 68 Cal.App.5th 392,

461–463.) Because the demonstratives and photocopied exhibits

in this case were prepared for trial, rather than some other

proceeding, we need not address this additional question.

Suffice it to say, photocopies of exhibits and demonstratives not

used at all are not allowable as costs under section 1033.5(a)(13).

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photocopies and demonstratives are reasonably helpful to aid

the trier of fact. (Segal, supra, 50 Cal.App.5th at p. 666.) But

the language of section 1033.5(a)(13) does not support such a

sweeping construction. As noted above, this provision requires

that the items were (in fact) reasonably helpful to aid the trier of

fact (a judge or jury in ruling on a factual issue). This language

is in tension with the Court of Appeal’s holding that all

photocopied exhibits and demonstratives “reasonably

anticipated” for use at trial (Segal, at p. 666) are recoverable

under section 1033.5(a)(13), even if the unused exhibits were not

in fact useful, even in a facilitative capacity.

Furthermore, the broad reading of section 1033.5(a)(13)

advanced by defendants and the Court of Appeal below renders

the “reasonably helpful to aid the trier of fact” phrase essentially

superfluous in the context of the costs recovery statute. Because

section 1033.5, subdivision (c)(2) already limits allowable costs

to expenses “reasonably necessary to the conduct of the

litigation rather than merely convenient or beneficial to its

preparation,” it is not clear how the Court of Appeal’s reading of

section 1033.5(a)(13) imposes any additional limits on exhibit

costs. Instead, the most natural reading of section 1033.5(a)(13)

and section 1033.5, subdivision (c)(2) is that the “reasonably

helpful to aid the trier of fact” clause (§ 1033.5(a)(13)) was not

meant to capture all exhibit-related costs that were in some way

helpful to the orderly and efficient conduct of the litigation — a

consideration already accounted for in subdivision (c)(2) — but

was instead more narrowly focused on the helpfulness of the

demonstratives and photocopied exhibits to the adjudication of

factual issues by the trier of fact.

Defendants offer a different interpretation of section

1033.5(a)(13). They maintain that the statute requires only that

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the method of preparing and displaying exhibits, such as

models, enlargements, or photocopies, must be “reasonably

helpful.” (§ 1033.5(a)(13).) The particular exhibits themselves,

defendants assert, need not be useful to aid the trier of fact, or,

indeed, used at all, so long as the method of preparing them is

useful. We conclude that neither the language of the statute nor

its history supports such an interpretation.

As noted, section 1033.5(a)(13) provides that “[m]odels,

the enlargements of exhibits and photocopies of exhibits . . . may

be allowed if they were reasonably helpful to aid the trier of

fact.” The syntax of the provision makes clear that the only

reasonable understanding of “they” as used in the statute is that

the word refers solely to the items themselves. Indeed, appellate

courts interpreting this provision have allowed the recovery of

costs under section 1033.5(a)(13) “only if the items ‘were

reasonably helpful to aid the trier of fact.’ ” (County of Riverside

v. City of Murrieta (1998) 65 Cal.App.4th 616, 629, italics

added.)

Nor do we perceive in the legislative history any indication

that section 1033.5(a)(13) allows costs so long as the method of

preparing exhibits is reasonably helpful. According to an

analysis of Assembly Bill No. 828 (2017–2018 Reg. Sess.), which

amended section 1033.5(a)(13) to include the electronic

presentation of exhibits, the then-existing provision already

required that “a party seeking to recover costs for models and

exhibits must show that the models and exhibits were

reasonably helpful to aid the trier of fact.” (Assem. Com. on

Judiciary, Analysis of Assem. Bill No. 828 (2017–2018 Reg.

Sess.) as introduced Feb. 16, 2017, p. 3, italics added.) The bill

analysis reiterated that “[w]hile this bill expands the list of

allowable recoverable costs to include electronic exhibits, this

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bill importantly maintains the requirement that such exhibits

must be reasonably helpful in aiding the trier of fact.” (Ibid.,

italics added.) Similarly, the Legislative Counsel’s Digest

described the then current version of section 1033.5(a)(13) as

“provid[ing] that costs for models and enlargements of exhibits

and photocopies of exhibits may be recovered if the items were

reasonably helpful to aid the trier of fact.” (Legis. Counsel’s

Dig., Assem. Bill No. 828 (2017–2018 Reg. Sess.), italics added.)

This history reflects legislators’ understanding that section

1033.5(a)(13) requires that the models and photocopied exhibits

themselves be reasonably helpful. Although “ ‘the Legislature’s

expressed views on the prior import of its statutes” are “neither

binding nor conclusive in construing the provision[,]” they are

“ ‘entitled to due consideration’ even if a ‘gulf of decades

separates’ the legislative declaration and the earlier

enactment.” (Jarman v. HCR ManorCare, Inc. (2020)

10 Cal.5th 375, 389–390.)

Based on the foregoing, we conclude that a prevailing

party is not entitled to recover costs associated with preparing

photocopies of exhibits and demonstratives under section

1033.5(a)(13) if the items were not presented to the trier of fact.

The issue remains, however, whether the trial court in its

discretion may award costs for such items under section

1033.5(c)(4).

Plaintiffs urge this court to apply the analysis set forth in

Seever — that a trial court may not exercise its discretion to

award costs when the Legislature has expressly qualified the

scope of allowable items in section 1033.5, subdivision (a) and

thereby implicitly prohibited the recovery of costs for similar

items that are not specifically enumerated in that provision.

(Seever, supra, 141 Cal.App.4th at pp. 1559–1560.) And yet,

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other courts have viewed the interplay of section 1033.5,

subdivisions (a), (b), and (c) differently.

In Science Applications Internat. Corp. v. Superior Court

(1995) 39 Cal.App.4th 1095, 1103, the Court of Appeal

interpreted section 1033.5 as follows: “Reading the two subparts

of subdivision (c) together with the rest of the cost statute, we

conclude, 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.’ ” (Science

Applications, at p. 1103, quoting § 1033.5, subd. (c)(2).) The

court elaborated: “The statutory scheme clearly establishes two

mutually exclusive sets of trial preparation expenses — one set

which is allowable as a matter of right (§§ 1033.5, subd. (a),

1032, subd. (b)) and one which is not (§§ 1033.5, subd. (b), 1032,

subd. (b)). Expenses which do not fit into either of these two

categories fall into a special statutory safety net: they may be

recovered but only at the discretion of the court (§ 1033.5, subd.

(c)).” (Science Applications, at p. 1103; see also Applegate, supra,

23 Cal.App.4th at pp. 363–364 [“Items not specifically allowable

under [section 1033.5,] subdivision (a) and not prohibited under

subdivision (b) may nevertheless be recoverable in the discretion

of the court if ‘reasonably necessary to the conduct of the

litigation rather than merely convenient or beneficial to its

preparation’ ”].)

We conclude that Science Applications and Applegate are

more consistent with the general principles of statutory

construction. As noted, section 1033.5, subdivision (a) lists

items specifically allowable as costs; subdivision (b) lists the

items that “are not allowable as costs, except when expressly

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authorized by law” (id., subd. (b)). The Seever court reasoned

that by imposing limits on certain categories of allowable costs

under subdivision (a), the Legislature also implicitly precluded

the recovery of additional subcategories of those same items,

even if they were not explicitly prohibited under subdivision (b).

(Seever, supra, 141 Cal.App.4th at pp. 1559–1560.) But other

provisions of the costs statute undermine Seever’s analysis and

demonstrate that when the Legislature intended to preclude

recovery of costs related to items described in subdivision (a), it

did so explicitly — and not implicitly.

For example, section 1033.5, subdivision (a)(8) expressly

provides that fees of expert witnesses ordered by the court are

allowable as costs. Under Seever’s logic, fees of expert witnesses

not ordered by the court would implicitly become not allowable.

And yet the Legislature expressly disallowed such costs in

subdivision (b)(1). Similarly, section 1033.5, subdivision (a)(9)

provides that transcripts of court proceedings ordered by the

court are allowable. Nevertheless, the Legislature expressly

prohibited the recovery of costs for transcripts of court

proceedings not ordered by the court under subdivision (b)(5).

Indeed, the Legislature specified in subdivision (b)(3) that

“photocopying charges, except for exhibits” (italics added) are not

allowable as costs, but it would make little sense to expressly

“except” such photocopying costs if, as plaintiffs contend, section

1033.5(a)(13) already implicitly precluded them. If the

Legislature had wished to exclude as costs exhibits that were

not reasonably helpful to aid the trier of fact, it could have done

so — and given its corresponding contemporaneous treatment

in related circumstances, presumably would have done so — by

including that prohibition in subdivision (b). Yet subdivision (b)

contains no such express prohibition.

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Opinion of the Court by Cantil-Sakauye, C. J.

We are also unpersuaded by Seever’s emphasis on section

1033.5, subdivision (a)(10), the attorney fees provision, in

support of its conclusion that the Legislature implicitly

precluded certain costs without expressly excluding them under

section 1033.5, subdivision (b). (Seever, supra, 141 Cal.App.4th

at p. 1559.) Section 1033.5, subdivision (a)(10) provides that

attorney fees are allowable as costs when authorized by

contract, statute, or law. Although we agree that attorney fees

not authorized by contract, statute, or law are not allowable,

despite section 1033.5, subdivision (b)’s silence concerning this

item, we are mindful that section 1033.5 is not the only

applicable set of constraints on a trial court’s discretion to award

attorney fees as costs. Section 1021 codifies the rule that “each

party to a lawsuit ordinarily pays its own attorney fees” unless

a statute or contract provides otherwise. (Mountain Air

Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th

744, 751; see § 1021 [“Except as attorney’s fees are specifically

provided for by statute, the measure and mode of compensation

of attorneys and counselors at law is left to the agreement,

express or implied, of the parties”].) Reading sections 1021 and

1033.5 together, 4 the limited circumstances in which attorney

fees may be awarded as costs identified in section 1033.5,

subdivision (a)(10) are necessarily exclusive. Meanwhile, no

similar background principles apply to restrict exhibit costs to

those allowed by section 1033.5(a)(13). Thus, we hesitate to

extrapolate Seever’s negative implication argument based solely

4

In the same bill that enacted section 1033.5, the

Legislature also considered and amended section 1021, further

suggesting that the two statutes should be harmonized and read

together. (See Stats. 1986, ch. 377, § 2, p. 1578 [amending

§ 1021]; id., § 13, p. 1579 [enacting § 1033.5].)

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SEGAL v. ASICS AMERICA CORPORATION

Opinion of the Court by Cantil-Sakauye, C. J.

on section 1033.5’s attorney fees provision to other items in the

costs statute.

Accordingly, we find no indication that the Legislature

intended to circumscribe the trial court’s discretionary authority

under section 1033.5(c)(4) to award costs incurred in preparing

demonstratives and photocopies of trial exhibits, even though

they were not ultimately used at trial, when such materials are

reasonably necessary to the conduct of litigation and reasonable

in amount. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129

[courts should not “ ‘ “ ‘ “read into the statute allowing costs a

restriction which has not been placed there” ’ ” ’ ”].) Instead, we

view section 1033.5 as being silent regarding demonstratives

and photocopied exhibits not presented to the trier of fact,

rendering them “[i]tems not mentioned in this section” that

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

(§ 1033.5(c)(4).) Hence, we agree with the Court of Appeal that

costs for such items are allowable in the trial court’s discretion

under section 1033.5(c)(4).

Plaintiffs’ remaining arguments are unconvincing. They

claim that allowing the prevailing party to recover costs for

photocopies of exhibits and demonstrative aids not put before

the trier of fact would “create a perverse incentive to litigants

(especially those well-funded) to over prepare highly prejudicial,

objectionable exhibits, slides and content that would never be

shown to a jury in order to drive up recoverable costs.” But

section 1033.5 instructs trial courts to strike costs that are not

“reasonably necessary to the conduct of the litigation” or

“reasonable in amount” (§ 1033.5, subd. (c)(2), (3)), and courts

have routinely done so, including costs for unused photocopies

of trial exhibits (e.g., Great Western Bank v. Converse

Consultants, Inc. (1997) 58 Cal.App.4th 609, 615). It bears

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SEGAL v. ASICS AMERICA CORPORATION

Opinion of the Court by Cantil-Sakauye, C. J.

repeating that any award of costs — whether categorically

recoverable under section 1033.5, subdivision (a) or allowable in

the court’s discretion under section 1033.5(c)(4) — must meet

the requirements of subdivision (c)(2) and (3). We are confident

that these statutory limitations will continue to guard against

the prospect of abuse.

Plaintiffs also maintain that it would be illogical to force a

party to pay for the costs of certain exhibit-related items, such

as demonstrative slides prepared for closing argument, that the

party successfully excluded from trial. The Legislature could

have spelled out a categorical prohibition against shifting costs

for inadmissible exhibits, but did not. In the absence of such a

bar, these are the type of costs that may be awarded in the trial

court’s discretion, and the Court of Appeal properly held that

the trial court did not abuse its discretion by doing so in this

case. (Segal, supra, 50 Cal.App.5th at p. 667.)

III. DISPOSITION

For the reasons set forth above, we conclude that the

Court of Appeal erred when it held that costs for demonstratives

and photocopies of exhibits prepared for, but ultimately not used

at, trial are categorically recoverable under section

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SEGAL v. ASICS AMERICA CORPORATION

Opinion of the Court by Cantil-Sakauye, C. J.

1033.5(a)(13), but it correctly determined that such costs are

recoverable in the trial court’s discretion under section

1033.5(c)(4). Accordingly, because the Court of Appeal’s

disposition was correct, we affirm its judgment.5

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

IRION, J.*

5

We disapprove the decision in Seever v. Copley Press, Inc.,

supra, 141 Cal.App.4th 1550 to the extent it is inconsistent with

this opinion.

*

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division One, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

20

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Segal v. ASICS America Corporation

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 50 Cal.App.5th 659

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S263569

Date Filed: January 13, 2022

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Elizabeth Allen White

__________________________________________________________

Counsel:

Greenspoon Marder, James H. Turken, Michael J. Dailey, Blake L.

Osborn; Norton Rose Fulbright and Rebecca Lawlor Calkins for

Plaintiffs and Appellants.

Sidley Austin, Jack S. Yeh, David R. Carpenter, Alexis Miller Buese,

Collin P. Wedel and Rara Kang for Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Rebecca Lawlor Calkins

Norton Rose Fulbright US LLP

555 South Flower Street, 41st Floor

Los Angeles, CA 90071

(213) 892-9357

David R. Carpenter

Sidley Austin LLP

555 West Fifth Street, Suite 4000

Los Angeles, CA 90013

(213) 896-6679