Thursday, July 3, 2014

A Deposition Is a Business Records Subpoena Is a Deposition

Naser v. Lakeridge Athletic Club, No. A138353 (D1d5 June 27, 2014)

Losing plaintiff appeals denial of motion to tax costs. The court decides two issues: First, jury fees are recoverable costs even if the case doesn’t make it to jury trial. Code of Civil Procedure § 631, as recently amended, requires a non-refundable deposit of $150 in jury fees on before the first CMC. Since there
s no chance for a refund even if, for instance, the defendant wins on summary judgment, the fee that can be recovered as cost under § 1033.5(a)(1). Second, the defendant can recover the cost of subpoenaing documents under the provision that allows recovery of deposition costs. Somewhat anomalously, the Discovery Act calls a third party document subpoena where no testimony is sought a “deposition” subpoena. See § 2020.010. So, although it seems semantically wacky, costs incurred in issuing and enforcing such a subpoena are thus costs of “[t]aking, video recording, and transcribing necessary depositions including . . . travel expenses to attend depositions” under § 1033(a)(3).

Affirmed.

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