Judge: Kenneth J. Medel, Case: 37-2018-00051604-CU-MC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Misc Complaints - Other Motion Hearing (Civil) 37-2018-00051604-CU-MC-CTL OLSON VS LA JOLLA NEUROSURGICAL ASSOCIATES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 02/24/2023

The Court rules on defendants La Jolla Neurosurgical Assocs. and Frank Coufal, M.D.'s (sometimes collectively Defendants) motion for attorneys' fees and recoverable costs as follows: As a preliminary matter, the Court declines Plaintiff's request to strike Defendant's billing records.

Defendants bring this motion pursuant to Civil Code section 1788.30 subd. (c) (Section 1788.30(c)), California Rules of Court, rule 3.1702, and Code of Civil Procedure section 998 subd. (c)(1). Notably, Section 1788.30(c) provides, in relevant part, that 'attorney's fees may be awarded to a prevailing creditor upon a timely filing by the court that the debtor's prosecution or defense of the action was not in good faith.' Defendants presented evidence that Plaintiff and her counsel were made aware of the fact that it was a third-party billing service and not Defendants who sent Plaintiff invoices. They did so via a meet and confer letter and verified responses to Plaintiff's Requests for Admissions stating that WRS Health forwarded the invoices reflecting that surgical fees had yet to be paid by medical insurance. In addition, the Court agrees that Plaintiff's counsel's questions to Dr. Coufal were not reasonably calculated to lead to discovery of admissible evidence. Finally, even the Court of Appeal held that there was no factual basis for Plaintiff's claim. (See Olson v. La Jolla Neurological Associates (2022) 85 Cal.App.5th 723, 733, 737-738 (hereafter Olson).) Thus, Defendants shall be awarded attorney fees pursuant to Section 1788.30(c).

As to the reasonableness of the attorney fee requst, Defendants provided declarations and billing records. The motion was even continued to allow Plaintiff's counsel time to review Defendants' billing records and to object as it saw fit. Notably, Defendants conceded that 1.3 hours may not be related to this case and informed the Court that it was withdrawing this from Plaintiff's attorney fee request. Other than that, and after having considered the arguments of the parties, the Court finds that defense counsel's hourly rates and time spent to defend this action were reasonable under the circumstances.

Finally, as to the issue of costs, Code of Civil Procedure section 1032 subd. (b) states that a 'prevailing party is entitled as a matter of right to recover costs in any action or proceeding.' Furthermore, Section 1788.30(c) states that a 'prevailing party shall be entitled to costs of the action.' In addition, Code of Civil Procedure section 998 subd. (c)(1) states, in relevant part, that 'the court...in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses...actually incurred and reasonably necessary in...preparation for trial....' Calendar No.: Event ID:  TENTATIVE RULINGS

3018692  52 CASE NUMBER: CASE TITLE:  OLSON VS LA JOLLA NEUROSURGICAL ASSOCIATES  37-2018-00051604-CU-MC-CTL Here, Plaintiff did not timely file a motion to strike or tax costs pursuant to Code of Civil Procedure 3.1700 subd. (b)(1). In addition, Defendants proffered a 998 offer on October 14, 2019, to which Plaintiff did not respond. Finally, the Court finds that the 998 offer was not ambiguous and that the retained experts were reasonably necessary and were referenced by the Court of Appeal in its opinion in this action. (Olson, supra, 85 Cal.App.5th at p. 729.) Based on the foregoing, the motion is granted. Defendants shall be awarded costs in the amount of $11,663.74 and attorneys' fees in the amount of $71,203.00.

IT IS SO ORDERED.

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3018692  52