Recoverable Costs As Prevailing Party – Subpoenaed Medical Records

by Low, Ball & Lynch
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Naser  v. Lakeridge Athletic Club

Court of Appeal, Fifth Appellate District (June 27, 2014)

Pursuant to California Code of Civil Procedure (CCP) § 1032, a prevailing party is entitled to recover costs. The statute specifically allows for the recovery of costs associated with taking, video recording, and transcribing necessary depositions, and expressly disallows recovery of postage, telephone and photocopying costs, except for exhibits.  This case considered the extent to which subpoenaed medical records could be recovered after a successful summary judgment motion.

The plaintiff Zahra Naser slipped and fell in the locker room of the Lakeridge Athletic Club in El Sobrante. She filed a suit to recover personal injury damages. The trial court granted summary judgment for Lakeridge on the basis that the plaintiff had assumed the risk of harm in use of the health club facilities and had signed a contract with Lakeridge that included a valid release of liability. Naser filed an appeal as to the judgment and also challenged the trial court’s denial of her motion to tax costs awarded to Lakeridge.  Pursuant to its memorandum of costs, Lakeridge sought filing and motion fees (which were not contested), a $150 jury fee, and $8,602 in deposition costs. The plaintiff moved to tax costs arguing the jury fees were unwarranted as there was no jury trial in the case and that the bulk of the deposition costs should have been disallowed as “copying costs,” since they consisted of subpoenaed medical records.

Lakeridge asserted that the jury fee was a reasonable and necessary cost of litigation and that the contested deposition costs were allowable as costs of “serving and processing  depositions subpoenas” for production of business records in lieu of a personal appearance by the custodian of records pursuant to CCP §§ 2020.020 and 2020.410.  Even if the costs were not automatically allowable under the cost statute, Lakeridge argued that the court should exercise its discretion and allow them as the costs were reasonable and necessary to the conduct of the litigation and reasonable in amount. The court denied plaintiff’s motion to tax and awarded Lakeridge the requested amount.

The unpublished portion of the appellate opinion affirmed the grant of summary judgment.  The published portion of the opinion discussed the motion to tax costs.  The appellate court agreed the jury fee was reasonable and necessary to the conduct of litigation because Lakeridge was required to pay the fee in order to preserve its right to a jury trial. (CCP § 631(b), (c), (f)(5).)  Turning to the disputed deposition charges, the plaintiff claimed the charges were unallowable photocopying costs and were unnecessary to the scope of the summary judgment motion.  The court noted there was no direct authority on the issue. However, it found two court decisions that concluded the Civil Discovery Act contemplates that discovery conducted by way of a business records subpoena is a “deposition.” The court agreed with those decisions and noted that plaintiff’s medical records were clearly relevant to her personal injury claim. Although the scope of the summary judgment motion was narrower than the potential issues that might arise at trial, Lakeside was entitled to conduct discovery necessary to prepare for trial and to recover those costs after prevailing in the action.

The court affirmed the award of the costs for the jury fee and for obtaining the medical records as deposition costs.

COMMENT

The court’s decision clarifies the confusion as to whether a prevailing party is entitled to recover the costs associated with obtaining relevant records via subpoena, and confirms the ability to recover the jury fee parties are now required to post in order to retain the right to a jury trial.  The ruling should reduce the issues raised by non-prevailing parties when filing motions to tax costs and may prevent the need to file such motions in certain cases.

For a copy of the complete decision, see:

http://www.courts.ca.gov/opinions/documents/A138353.PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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