Judge Jill Feeney, Case 20STCV18156 2022-10-26 Tentative Ruling

On May 12, 2020, plaintiff Kimberly K. Higgins (“Plaintiff”) filed this action against defendants Does 1 to 10, alleging one cause of action for general negligence arising from a ladder striking Plaintiff. On September 1, 2020, Plaintiff amended her Complaint to substitute defendant Environmental Design Studio (“Defendant”) as the true name for the defendant sued under the fictitious name Doe 2.

The Complaint alleges the following. On or about June 17, 2018, Plaintiff was performing her customary duties as an Associate Designer at Restoration Hardware in West Hollywood, California. Suddenly and unexpectedly, a 12-foot ladder (last used by the defendants in the maintenance of a garden) fell and violently struck Plaintiff on her head. As a result, Plaintiff suffered traumatic brain damage and other severe and disabling physical and emotional injuries.

Defendant argues that (1) an order awarding cost of proof sanctions totaling $37,896.50 is appropriate on the grounds that Plaintiff denied the truth of EDS’s Request for Admission No. 1, which asked Plaintiff to admit that EDS was in no way negligent in connection with the accident and (2) an order awarding costs for expert witnesses in the amount of $11,664 is appropriate because EDS served a settlement offer under Code Civ. Pro 998 which Plaintiff rejected.

If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.

(Code Civ. Proc., § 2033.420, subd. (a).) Code of Civil Procedure section 2033.240 shifts costs and expenses of proof only where the responding party refused to admit, i.e., denied, a request. (See Code Civ. Proc., § 2033.240, subd. (a) [“If a party fails to admit . . . .”].)

If the responding party simply objected or gave an incomplete answer, the proponent must first move to compel further answers. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636.) A failure to do results in waiver. (See American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 268.)

“An RFA has substantial importance if it is central to disposition of the case. In evaluating whether a good reason exists for denying a request to admit, a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial. The determination of whether there were no good reasons for the denial, whether the requested admission was of substantial importance, and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court.” Doe v. Los Angeles County Dept. of Children & Family Services¿(2019) 37 Cal.App.5th 675, 690,¿as modified (July 18, 2019), reh’g denied (Aug. 9, 2019), review filed (Aug. 27, 2019). (internal quotations and citations omitted).

“When a party denies an RFA, [t]he question is not whether a reasonable litigant would have denied the RFAs. Nor is the question simply whether the litigant had some minimum quantum of evidence to support its denial (i.e., ‘probable cause’). The relevant question is whether the litigant had a reasonable, good faith belief he or she would¿prevail¿on the issue at trial. Consideration of this question requires not only an assessment of the substantiality of the evidence for and against the issue known or available to the party, but also the credibility of that evidence, the likelihood that it would be admissible at trial and persuasive to the trier of fact, the relationship of the issue to other issues anticipated to be part of trial (including the issue’s importance), the party’s efforts to investigate the issue and obtain further evidence, and the overall state of discovery at the time of the denials and thereafter.”¿ (Samsky v. State Farm Mutual Automobile Ins. Co.¿(2019) 37 Cal.App.5th 517, 526,¿as modified on denial of reh’g (July 23, 2019), review denied (Sept. 11, 2019) (internal citations and quotations omitted).)

"If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs." (Code Civ. Proc., section 998, subd. (d).)

998 offers must be made in good faith, and “[a] token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) However, “[w]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.” (Ibid.) The pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. (See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) Whether a 998 offer is reasonable also depends on whether the adverse party knows, or reasonably should know, the information that makes the offer reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.)

Defendant seeks recovery of attorney’s fees under Code Civ. Proc., § 2033.420 on the grounds that Plaintiff failed to admit RFA no. 1, which reads “ENIRONMENTAL DESIGN STUDIO was in no way negligent in connection with the accident that gives rise to this lawsuit.” Plaintiff answered “Deny.” (Bubion Decl., Exh. B.)

It appears that Plaintiff did deny the RFA at issue. Since Plaintiff’s Complaint alleged that Defendant was negligent in storing the ladder that struck her, the RFA was of substantial importance. The remaining issues are whether Plaintiff had a good reason to deny the RFA and/or there was other good reason for the failure to admit.

A review of the evidence Plaintiff submitted in support of her opposition to Defendant’s motion for summary judgment shows that Plaintiff relied solely on her own declaration to show that Defendant was negligent in storing the ladder that struck her.

However, this Court must consider the state of play at the time of the request for admission. Here, the lawsuit was filed on May 12, 2020. Defendant served the RFA in question on November 3, 2020 and the verified response was served on December 21, 2020. In this scenario, where the RFA was served fairly early in the case and required plaintiff to essentially concede that she could not prevail at trial, a denial of this sanction is within the discretion of the Court. (Pappas v. Chang (2022) 75 CA5th 975, 994.)

Defendant alleges it incurred $11,664 in costs for the services of expert witness Dr. Dana Chidekel. (Motion, p.6.) Dr. Chidekel performed a neuropsychological examination of Plaintiff and reviewed her records. (Id.) She also conducted test scoring and prepared a 42-page examination report setting forth her expert opinions and conclusions. (Id.) Plaintiff’s Complaint placed her mental state at issue by alleging Plaintiff suffered severe traumatic brain damage and other severe and disabling physical and emotional injuries. (Comp., p. 4.) The expert cost is allowable under Code Civ. Proc. section 998(d) because it was a necessary cost incurred in preparation for trial after Plaintiff’s refusal of a 998 settlement offer.