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Litigants must pay for deposition costs even if they are not used, the Court of Appeal, Fourth Appellate District, Division Two ruled Jan. 8.

The ruling comes from a torts case brought by Riverside County consumers that claimed the mattress they bought from Tempur-Pedic was defective, and caused injuries while they slept.

The litigants settled their case before trial.

Vincent Garcia, who brought the case, was ordered to pay for Tempur-Pedic’s costs because they were the prevailing party. This included $5,174 for depositions of doctors and $2,491 for service of process.

Tempur-Pedic had racked up two depositions at the costs of $527 and $818, and $2,053 for service-of-process fees for six doctors. 

Garcia moved to strike the costs of the service-of-process fees because Tempur-Pedic had actually deposed only three of the eight witnesses.

One of Tempur-Pedic’s doctors did not appear for his deposition, another died before he was served, a third was chosen by the company to be taken off the calendar. Two of the experts were not deposed, with no reason given by Garcia. One of the doctors was accidentally served twice by Tempur-Pedic.

Garcia contested $1,346 in deposition costs and $2,054 in costs of service.

The court awarded all of the costs, disagreeing with Garcia. Garcia appealed.

The Court of Appeal agreed with the trial court.

“(The Garcias) ask us to hold it is always improper to award costs incurred for depositions that did not occur. We agree with the trial court that it is legally proper to award such costs,” they wrote.

“There is no blanket reason to conclude that the costs for depositions that did not occur were unwarranted when they were noticed. It is (of) no importance to the award of costs that the litigation terminated in Tempur-Pedic’s favor before the depositions were completed,” the ruling says.

Case information

Justice Michael Raphael wrote the opinion, which Justices Manuel Ramirez and Douglas Miller joined.

Kerry P. Zeiler of Zeiler Law Group represented Garcia.

Clint Robison, Vickie Grasu and Angeli Aragon of O’Hagan Meyer represented Tempur-Pedic.

Riverside Superior Judge Godofredo Magno presided.

Superior Court Case No. RIC1902570

Appellate Case No. E079859

Read the ruling here.

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