gno.law

Thon v. Thompson

California Court of Appeal · D020273 · 1994-11-08 · Published · 29 Cal. App. 4th 1546 · 35 Cal. Rptr. 2d 346 · 29 Cal. App. 2d 1546 · 94 Cal. Daily Op. Serv. 8558 · 94 Daily Journal DAR 15811 · 1994 Cal. App. LEXIS 1127

RONALD P. THON Et Al., Plaintiffs and Appellants, v. RONALD THOMPSON Et Al., Defendants and Respondents

Area
civil
Panel
Kathryn Todd (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:28Z · confidence high

The trial court awarded post-judgment costs to the prevailing defendants, including the full amount for charter air travel to attend depositions. The Court of Appeal affirmed the award but modified it to reduce the travel costs by the difference between the charter price and the cost of commercial flights, finding the charter was not reasonably necessary.

Ruling reviewedStandardThe courtThe model
Award of travel expenses for out-of-county counsel to attend depositions in the county of jurisdiction.
“Section 1033.5, subdivision (a)(3) does not limit reimbursement for deposition travel to travel by attorneys practicing in the court’s jurisdiction.”
de novocorrectagree with court
The appellate court correctly applied the statute, noting that Code of Civil Procedure section 1033.5, subdivision (a)(3) authorizes travel expenses for depositions without limiting them to local counsel. The court relied on the principle that statutes should not be construed to add restrictions not contained in the text, citing Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal.App.3d 256. This interpretation is consistent with the plain language of the statute and prior California authority allowing reasonable travel costs for depositions regardless of the attorney's home county.
Award of the full cost of charter air travel ($13,888.31) rather than commercial flight costs ($5,100).
“This may have been economically convenient to Thompson and Wireman but was not reasonably necessary. The trial court erred in awarding costs for the difference between $13,888.31 and $5,100 ($8,788.31).”
abuse of discretionerroragree with court
The appellate court found that while the trial court has discretion to determine reasonableness, the specific choice of charter flight over a significantly cheaper commercial option was not 'reasonably necessary' to the litigation. The court noted that the defense counsel admitted the charter was chosen to save attorney fees, which is not a valid basis for shifting the excess cost to the opposing party. By modifying the award to reflect the commercial flight cost, the court ensured the costs awarded were reasonable in amount as required by Code of Civil Procedure section 1033.5.

Authorities

  • relied: Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238 — To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount.
  • relied: Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761 — Determination of whether a cost is reasonable is within the trial court’s discretion; a declaration is sufficient proof to support a finding of fact.
  • relied: Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal.App.3d 256 — Courts may not construe a statute to add a restriction it does not contain.
  • relied: Ross v. Superior Court (1977) 19 Cal.3d 899 — Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty.

The appellate opinion: sound — The opinion is sound because it correctly interprets the statutory language regarding travel expenses and applies the 'reasonably necessary' standard to the specific facts of the charter flight. It appropriately modifies the award to reflect the reasonable cost of commercial travel, ensuring the prevailing party does not recover excessive costs.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

After granting summary judgment to the Rainbow Municipal Water District board members Thompson and Wireman, the trial court awarded them costs under Code of Civil Procedure section 1033.5, including charter air travel, hotel and rental car expenses for their Bakersfield attorneys to attend depositions in San Diego, over Plaintiffs' motion to strike. The Court of Appeal held out-of-county deposition travel is recoverable and that the itemization and declaration sufficed, but found the charter-flight premium over commercial airfare was not reasonably necessary and modified the award downward by $8,788.31, affirming as modified.

Ruling reviewedStandardThe courtThe model
Award of deposition travel costs (air, hotel, rental car) to out-of-county (Bakersfield) defense counsel for depositions taken in San Diego County under section 1033.5, subdivision (a)(3).
“The trial court did not err in awarding costs incurred by Bakersfield attorneys to attend depositions in San Diego County.”
mixedcorrectagree with court
The court treated the question of whether out-of-county travel is categorically excluded as one of statutory construction and correctly declined to read a local-travel limitation into section 1033.5(a)(3), citing Rappenecker for the rule against adding restrictions the statute does not contain; the reasonableness of the amount was left to trial court discretion under Ladas. The statute's plain text supports this result.
Award of travel costs despite Plaintiffs' objection that the expenditures lacked sufficient detail and an explanation why less expensive travel was not used.
“Here, nothing in the record indicates the trial court failed to weigh the need in determining to award the travel costs for depositions.”
abuse of discretioncorrectagree with court
Defendants submitted a per-deposition itemization and a declaration explaining the costs; Ladas holds a declaration is sufficient evidence to support a finding, and Ross supports presuming the trial court performed its duty absent contrary indication. The court's application of these authorities is consistent with the record described.
Award of the full charter air travel cost ($13,888.31) rather than the cost of commercial airfare ($5,100).
“This may have been economically convenient to Thompson and Wireman but was not reasonably necessary. The trial court erred in awarding costs for the difference between $13,888.31 and $5,100 ($8,788.31).”
abuse of discretionerror (discretion)agree with court
Section 1033.5 requires costs to be reasonably necessary to the litigation and reasonable in amount, and counsel admitted the charter was chosen to save attorney fees, which is a convenience rather than a litigation necessity, so the conclusion is defensible. The court, however, did not expressly reconcile its own reweighing of reasonableness with the deferential abuse-of-discretion standard it had just invoked, and simply modified the award rather than remanding; the result is sound but the reasoning is thin on why the trial court's contrary determination was outside its discretion.

Authorities

  • relied: Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238 — To be recoverable, a cost must be reasonably necessary to the litigation and reasonable in amount.
  • relied: Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761 — Whether a cost is reasonable is within the trial court's discretion, and a declaration is sufficient proof to support a finding of fact on a cost item.
  • relied: Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal.App.3d 256 — A court may not construe a statute to add a restriction it does not contain.
  • relied: Ross v. Superior Court (1977) 19 Cal.3d 899 — Absent an explicit statement to the contrary, the trial court is presumed to have properly exercised its legal duty.

The appellate opinion: sound with gaps — The opinion correctly reads section 1033.5(a)(3) as not limiting deposition travel to local travel and properly relies on Ladas and Ross for the sufficiency of a declaration and the presumption of regularity. It reaches a defensible result on the charter-flight premium, but it does not explain how its independent determination that the charter was 'not reasonably necessary' squares with the abuse-of-discretion standard it announced, nor address the burden-shifting framework for contested cost items.

How this analysis was made · dispute it

Opinion — Todd

Opinion

TODD, Acting P. J.

Ronald P. and Carol Thon, Rolling Hills Estates, Ltd., Rolling Hills Sanitation, Inc., and Raymond Grimm, Sr. (Plaintiffs) *1548 appeal a postjudgment order awarding certain costs to Ronald Thompson and Jack Wireman.

After the Rainbow Municipal Water District (the District) rejected their proposed sewer plan in the Fallbrook area, Plaintiffs filed a complaint, followed by several amended complaints, in the superior court. They sued the District and its members, Thompson and Wireman (Defendants). Ultimately, the court granted summary judgment to Defendants. As the prevailing party, Defendants sought costs, including attorney travel and lodging to attend depositions. Plaintiffs moved to strike requests for deposition costs which included charter air travel from Bakersfield to San Diego, hotel bills incurred in San Diego and rental car costs.

Code of Civil Procedure 1 section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244 [5 Cal.Rptr.2d 470].) Plaintiffs recognize section 1033.5, subdivision (a)(3) specifically authorizes reimbursement of travel expenses to attend depositions but argue when the deposition is conducted in the county of jurisdiction, expenses incurred by out-of-county counsel should not be recoverable.

Determination of whether a cost is reasonable is within the trial court’s discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [23 Cal.Rptr.2d 810].) Plaintiffs ask us to read into the statute a provision it does not contain, i.e., limitation of travel expenses incurred in taking a deposition to local travel. We may not construe a statute to add a restriction it does not contain. (Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal.App.3d 256, 263 [155 Cal.Rptr. 516].) Section 1033.5, subdivision (a)(3) does not limit reimbursement for deposition travel to travel by attorneys practicing in the court’s jurisdiction. The trial court did not err in awarding costs incurred by Bakersfield attorneys to attend depositions in San Diego County.

Plaintiffs also argue the court erred in awarding costs absent sufficient detail of the expenditures and an explanation why a less expensive means of travel was not utilized. Before the court order here, Defendants provided an itemization of the travel expenses for each deposition and a declaration by defense counsel explaining the need and reason for the costs. Plaintiffs correctly state trial courts have a duty to determine whether a cost is reasonable in need and amount. However, absent an explicit statement by the trial court to the contrary, it is presumed the court *1549 properly exercised its legal duty. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [141 Cal.Rptr. 133, 569 P.2d 727].)

Here, nothing in the record indicates the trial court failed to weigh the need in determining to award the travel costs for depositions. A declaration is sufficient proof to support a finding of fact. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 776.) However, it cost $13,888.31 to fly by charter from Bakersfield to San Diego and $5,100 to fly a commercial fight. Counsel for Thompson and Wireman candidly admits he and cocounsel took chartered flights to save his client attorney fees. This may have been economically convenient to Thompson and Wireman but was not reasonably necessary. The trial court erred in awarding costs for the difference between $13,888.31 and $5,100 ($8,788.31). The trial court’s cost award is modified to reduce it by $8,788.31.

Order affirmed as modified.

Benke, J., and Huffman, J., concurred.

1

All statutory references are to the Code of Civil Procedure.

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