Judge: Blaine K. Bowman, Case: 37-2019-00040629-CU-PN-NC, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 26, 2023

10/27/2023  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Professional Negligence Motion Hearing (Civil) 37-2019-00040629-CU-PN-NC SAMANTHA CHILDS VS POLANSKY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 08/18/2023

The Motion to Strike brought by plaintiff Samantha Childs (Plaintiff) is DENIED. The Motion to Tax Costs brought by Plaintiff is GRANTED in part, as follows: --GRANTED as to the request to reduce the costs by half due to the fact that only one of the two defendants 'beat' the 998 Offer --DENIED as to the request to reduce the voluntary mediation fees --DENIED as to the request to reduce the hotel and travel expenses occurred by counsel who served as second chair at trial.

The final award of costs as reduced shall be: $26,708.73.

Request for Judicial Notice The Request for Judicial Notice brought by defendants Benjamin Polansky, DVM (Doctor Polansky) and VCA Animal Hospitals Inc. dba California Veterinary Specialists (the Veterinary Group) is GRANTED pursuant to Evidence Code § 451, et seq.

Background This is a veterinary malpractice case, with additional claims involving concealment of that alleged malpractice. Plaintiff sued both Doctor Polansky, the veterinarian who handled the procedure, and the Veterinary Group where he worked. Each of these defendants made a purported offer to compromise under Code of Civil Procedure § 998 on March 15, 2021. Doctor Polansky's offer was for $1,000.00. The Veterinary Group's offer was for $24,000.00. Both offers contained clause requiring a 'general release' from Plaintiff. Plaintiff now argues that that 'general release' invalidates the offers (at least as qualifying offers under Section 998) because they were not sufficiently definite and clear and because they pertained to matters not encompassed within the ambit of the legal issues raised in this lawsuit.

The case went to trial. At trial, the jury awarded $6,091.35, but not on the malpractice or negligence aspects of the case – on the theory of concealment. Defendants concede that this jury verdict 'beats' the amount that Doctor Polansky offered in settlement, such that Doctor Polansky cannot take advantage of the remedial provisions of Section 998. However, since the offer by the Veterinary Group does beat the jury verdict, Defendants argue that they are able to invoke the remedial provisions of Section 998 for costs incurred by the Veterinary Group. Incidentally, all of the costs incurred to litigate on behalf of the Veterinary Group appear to overlap entirely with the costs that were incurred to litigate on Calendar No.: Event ID:  TENTATIVE RULINGS

3010085 CASE NUMBER: CASE TITLE:  SAMANTHA CHILDS VS POLANSKY [IMAGED]  37-2019-00040629-CU-PN-NC behalf of Doctor Polansky.

Merits of Motion – re Striking Costs in Their Entirey Plaintiff seeks to strike the Veterinary Group's costs bill in its entirety on grounds that the 998 Offer made by the Veterinary Group was not sufficiently clear. Specifically, Plaintiff takes the position that the 'general release' provision in the offer takes it out of the ambit of Section 998. 'The burden of showing validity [of a 998 offer] is on the party making the offer.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 12:647.2, citing Smalley v. Subaru of America, Inc.

(2022) 87 Cal.5th 450, 455.) As such, the Veterinary Group has the burden of showing that its offer was a valid one under Section 998.

The Veterinary Group cites the case of Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899 for the proposition that settlement offers that contain a 'general release' can qualify under Section 998. The Practice Guide summarizes Goodstein as follows: 'majority upheld validity of § 998 offer by construing demand for 'general release' narrowly, to apply only to claims asserted in the litigation itself...' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Guide, 2023) ¶ 12:596.6, summarizing Goodstein, supra, 27 Cal.App.4th at 905, 907-908.) In light of the circumstances in this case, the Court concludes that the 'general release' language in the proposed 998 offer was sufficiently narrow to fall within the exception provided under Goodstein. As such, the Veterinary Group has met its burden of showing that the 998 offer was valid.

Merits of Motion – re Taxing Costs (Voluntary Mediation and Trial Hotel/Travel Expenses) Plaintiff also seeks to tax specific costs, namely, the costs associated with voluntary mediation and the costs associated with counsel who served as 'second chair' at trial.

With respect to voluntary mediation, the Court rejects the argument that this costs was incurred as a result of a court order. A trial court does not have the power to order parties to engage in private mediation, though a trial court does have the power to order some form of alternative dispute resolution (ADR) effort – such as a settlement conference with a bench officer at no cost to the parties. This Court routinely orders some form of ADR in the civil cases that come before it. This Court does not order parties to engage in private mediation; rather, when the issue of ADR is raised at a Case Management Conference, this Court inquires whether parties are open or amendable to private mediation, and, if the parties stipulate that they are amendable to such ADR, this Court merely orders that such ADR efforts be completed by a certain time frame. As such, Plaintiff's argument that the private mediation in this case was court ordered lacks merit.

With respect to the costs of having a 'second chair' attorney handle this case who is from Los Angeles and thus required hotel and travel expenses during trial, parties to litigation are ultimately free to select and retain legal counsel of their choosing. Though Plaintiff argues that her first chair counsel had other local associates who could have handled acting as second chair at trial, the attorney who was selected as second chair in this case was particularly familiar with the facts and prior history of the case, such that it was not unreasonable to have that attorney fill the 'second chair' role. Even if such selection may have been slightly more expensive or resulted in some additional cost, it remains within the realm of reason.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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