# Segal v. ASICS America Corp.

> California Supreme Court · January 13, 2022

URL: https://www.frixlaw.com/law-library/cases/6076514

## Case

- **Court:** California Supreme Court
- **Decided:** January 13, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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SEGAL v. ASICS AMERICA CORPORATION
Opinion of the Court by Cantil-Sakauye, C. J.

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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SEGAL v. ASICS AMERICA CORPORATION
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6076514. Public record. Not legal advice.