1/5 DCA Follows Two Other Appellate Decisions on Business Subpoena Costs.
In Naser v. Lakeridge Athletic Club, Case No. A138353 (1st Dist., Div. 5 June 27, 2014) (partially published; costs discussion published), the lower court allowed the defense prevailing on a summary judgment motion certain costs challenged by the losing plaintiff. However, plaintiff did not prevail on appeal as far as her costs challenges.
She first challenged the allowance of a $150 jury fee posting charge, arguing that it was unreasonable because a jury trial never took place. Nope, the defense had to pay the fee to preserve a jury trial and the summary judgment was granted way after the jury posting—so it was a reasonable charge even by hindsight analysis.
Losing plaintiff then challenged deposition costs for serving and processing business records subpoenas, even though no deposition was ever taken. She argued the expenses were not allowable photocopying costs under the routine costs statutes. Nope, again. Although there was no direct authority on the issue, the appellate court followed the lead of two other appellate courts by reasoning that a business records subpoena is a “deposition” allowable as costs, especially since it would be anomalous to deny costs to a litigant using a less economical procedure (where no deposition was taken) but to allow costs for a much more expensive actually-taken deposition. (Unzipped Apparel, LLC v. Bader, 156 Cal.App.4th 123, 127, 131 (2007); California Shellfish Inc. v. United Shellfish Co., 56 Cal.App.4th 16, 21, 23 (1997).)