Judge Rafael A. Ongkeko, Case 20STCV12764 2023-02-10 Tentative Ruling

Note:
The court's tentative rulings, as posted, will not have the same formatting "look" as the court's original Word version.
A pdf version of the latter will be available in court to those appearing in person or by email upon request made to the clerk before the hearing for those appearing remotely.
Dept. D contact information:
Email: samdeptd@lacourt.org.
Phone: (310) 255-2483

Counsel for plaintiff Jonathan Choto:
Savin Bursk Law, by Brian J. Kim; Maureen Hennessey; Casey Gerry LLP, by
Jeremy Robinson.

Counsel for defendant Dorothy D. Inc.: Mavredakis Phillips Cranert, by Erin A. Chang;
Buchalter, APC, by Harry W.R. Chamberlain II, Robert M. Dato, and Efrat M. Cogan.

1.
Defendant’s Motion for a new trial and/or alternatively seeking a remittitur
(filed 1/3/23)

1.
Defendant’s motion for new trial
is CONDITIONALLY GRANTED as to the amount of past and future noneconomic damages
only unless Plaintiff Jonathan Choto consents to reductions in the damages
judgment to reflect only the reduced amounts as to such damages, in which event
the motion for new trial will be denied.
All other damage awards stand
unchanged.

The ground for the conditional
grant of new trial is the verdicts for past and future noneconomic damages were
excessive (CCP § 657(5)).

b.
Future
noneconomic damages                        ~~$16,000,000~~
        $7,050,000

            TOTAL NONECONOMIC
DAMAGES                       ~~$17,773,900~~
$8,400,000

This ruling shall suffice as the
Order thereon. Accordingly, the judgment
is vacated.

PLAINTIFF’S
FILING DEADLINE to accept or reject the remittitur: MARCH 1, 2023 (not to exceed 30 days from the date the
clerk serves notice of entry of this order; CCP § 662.5(b)) If Plaintiff
accepts the court’s remittitur, Plaintiff is directed to prepare and serve a
Notice of Acceptance and a proposed amended judgment.

The court sets a non-appearance hearing date re status
of remittitur and/or entry of amended judgment for March 10, 2023
at 8:30 a.m. in Dept. D. The hearing
date will be vacated if Plaintiff files a notice of acceptance of the
remittitur and the amended judgment has been filed and entered.

2.
Defendant’s motion to strike/tax
costs: GRANTED in part and
DENIED in part. Defendant’s motion to tax
998-related costs in Item #8 (post-offer expert witness costs) and Item #16 are
DENIED. Defendant’s motion to tax is
GRANTED as to deposition costs (Item no. 4) in the amount of $590.50; preoffer
expert costs (Item no. 8) in the amount of $5,500; and certain other costs
(Item no. 16) in the amount of $10,210.

The parties are ordered to meet
and confer within 10 days and submit a joint stipulation and order regarding
the costs motion consistent with the court’s final rulings made at the hearing. The final costs amount shall be inserted in
the amended judgment.

After three and one-half trial days between 11/14/22 and 11/17/22,
and following their deliberations over a three-hour period, on 11/17/22, the
jury rendered its special verdict in favor of Plaintiff. On 12/6/22, the Judgment on Special Verdict
was entered and notice of its entry was served on the parties.

Before
the court are Defendant’s post-trial motions as noted above. Both motions were timely filed unless
otherwise discussed herein. Pursuant to
CCP § 660, the 75^th day following the clerk’s notice of entry of
judgment for the court to rule on the new trial motion is 2/19/23, a
Sunday. Because the next day, 2/20/23,
is Presidents’ Day, a court holiday, the court has until 2/21/2023 to
enter its order on the new trial motion.

*The following
items of noneconomic damages were listed on the special verdict following each
question:

“physical pain, mental suffering,
loss of enjoyment of life, disfigurement, physical impairment, inconvenience,
grief, anxiety, humiliation, and emotional distress”

Defendant seeks a new trial/remittitur on the sole ground that the
verdicts as to noneconomic damages are excessive (CCP § 657(5).[1] Specifically, Defendant’s memorandum asks the
court to “order a new trial or a substantial reduction of the award of
non-economic damages.” (18:7-8) [2]

For verdicts following jury trials,
CCP § 657 further provides:

“A new trial shall not be granted upon the ground of insufficiency of the
evidence to justify the verdict..., nor upon the ground of excessive or
inadequate damages, unless after weighing the evidence the court is convinced
from the entire record, including reasonable inferences therefrom, that the ...
jury clearly should have reached a different verdict or decision.”

In ruling on a new trial motion, a trial court sits as an
independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22
Cal.4th 405, 412.) Accordingly, a judge
ruling on the motion for new trial on the ground of excessive damages may
reweigh the evidence. (Ryan v. Crown Castle NG Networks, Inc. (2016) 6
Cal.App.5^th 775, 784.)

Plaintiff’s
objection to excerpts from the Moldower deposition: SUSTAINED.
However, the objection appears to have been cured by the subsequent
Chang declaration submitted with the Reply.
Neither party has submitted the excerpts from the Moldower videotaped
deposition which was played back to the jury on 11/14/22. Even if these specific excerpts were somehow not
in fact played back, whether inadvertently or otherwise, there was other
evidence received throughout the trial that tended to corroborate Moldower’s use
of the term “permanent” to describe Plaintiff’s condition. For example, Moldower himself testified that Plaintiff
could still have a re-herniation; that he still needed physical therapy; and
should have a 25-pound lifting limitation.
Plaintiff had not, and has not yet, returned to his pre-injury work as a
camera operator.

Defendant’s sole ground for new trial: Noneconomic damages ($17,773,900) are
excessive.

“Noneconomic damages compensate
an injured plaintiff for nonpecuniary injuries … .” (Citation.) Such injuries
include pain and suffering, emotional distress, as well as “such items as
invasion of a person's bodily integrity (i.e., the fact of the injury itself),
disfigurement, disability, impaired enjoyment of life, susceptibility to future
harm or injury, and a shortened life expectancy.” (Citation.) “The amount of [noneconomic] damages is a
fact question, first committed to the discretion of the jury and next to the
discretion of the trial judge on a motion for new trial.” (Citation.) Determining the amount of money a plaintiff
is to be awarded as compensation for noneconomic injuries is “[o]ne of the most
difficult tasks imposed on a fact finder.” (Citation.) “The inquiry is inherently subjective and not
easily amenable to concrete measurement.” (Citation.) Naturally, therefore, the appropriate amount
of noneconomic damages is “‘a matter on which there legitimately may be a wide
difference of opinion.’” (Citation.)”
(Burchell v. Faculty Physicians & Surgeons etc. (2020)
54 Cal.App.5th 515, 526-527; all internal citations omitted.)

The present motion has forced each
side to take extreme positions in attacking or defending the verdicts. Defendant looks at the best possible outcome
through rose-colored glasses. Plaintiff uses
a doom-and-gloom scenario in support of the worst possible outcome. What is reasonable lies somewhere between
those two extremes.

Defendant’s reasons in support of motion. In concluding that “the jury was
swayed by passion and prejudice” (18:6-7), Defendant argues these points: Plaintiff “was not incapacitated,” citing
three jury verdicts in more serious injury cases with lower awards.[3] Improper emphasis was placed on the emotional
effect of having the spinal cord stimulator (SCS) as a damage component because,
like other medical implants, they have a therapeutic purpose. No competent evidence supported a likelihood
that the SCS would pose a future problem. Having disclaimed loss of earnings, it was
improper for Plaintiff to utilize his pre-injury “dream job” compensation of
$45/hour, which Plaintiff further extended to an unreasonable 24/7 period, from
the incident date until the end of his life expectancy, a mathematically
enormous 51-plus years in total.[4] Further, the resulting hourly measure of his
noneconomic damages was unreasonable because he did have preexisting permanent
work restrictions before this incident, precluding his previous return to such physically
demanding work. He was able to do light
duty studio work; was not in 24/7 pain; and, by his own admission, felt the Moldower
surgery and SCS gave him new leases on life.
Finally, Plaintiff’s various arguments improperly used loss of work; eviction;
separation from family and pets; etc. resulting in an inflammatory and
duplicative effect on damages for pain and suffering and loss of enjoyment of
life.

Plaintiff’s opposition. Plaintiff’s
opposition essentially repeats and tracks counsel’s very effective opening
statement and closing argument, with references to the evidence.[5]

The jury’s noneconomic damage awards were excessive. The court does not find the “per
diem” argument improper per se. However,
it injected passion and prejudice in the jury’s deliberations, leading to the
excessive damages. Although Plaintiff did
not blame Defendant for his loss of earnings/earning capacity as an assistant camera
operator, the loss of Plaintiff’s previous $45 per hour job became a de
facto damage item that counsel argued should be the jury’s guide in determining
noneconomic damages. This line of
argument resulted in a clearly excessive award that shocks the conscience given
the plaintiff’s and the jury’s apparent attempt to replace what he had already
decided not to claim, and then inject the waived claim under the guise of
noneconomic damages. Not surprisingly, because
the alleged pain and suffering was claimed to be of the 24/7 variety, his
$45/hour in lost earnings was the cross he would bear every hour and every
minute of his life, to the tune of $1,080 a day, or almost $400,000 per year
until the end of his life expectancy, even well into his 80s. Argued in this manner, not only would the
jury be compensating Plaintiff for his 8 hours lost every day as a camera
operator, but for the additional 16 hours lost using the same measure of
damages. This calculation was not
reasonable nor supported by the evidence and clearly resulted in excessive
noneconomic damage verdicts.

To highlight the excessive award, the evidence of severe pain and
suffering did not reflect the blanket 24/7 per diem argument. Plaintiff’s own testimony impeached his own
mother’s “can’t-do-anything” testimony, acknowledging he was not that helpless
and really not experiencing debilitating 24/7 pain. The court finds that the evidence was
insufficient to support an every-minute pain and suffering case of that scale
and magnitude. However, as discussed
below, the court does find the SCS implant supports a proper monetary basis for
other elements of noneconomic damage, such as disfigurement, humiliation, and
anxiety.

While the trial was in progress, the court did not observe any
pain or discomfort on the part of Plaintiff.
He seemed comfortable sitting at counsel table and was never in any
physical distress while present in the courtroom during the trial. True, Plaintiff’s counsel pre-warned the jury
that this was not a visible pain case.
If so, and based on what the court observed, one might reasonably
conclude that Plaintiff did not suffer 24/7 pain at the severity and frequency
that one might expect from the size of the damages. Similarly, Ashley Reyes’ testimony did not
support the 24/7 argument.

Past noneconomic damages are excessive. In the court’s view, Plaintiff’s
4.5 year post-accident pretrial condition (i.e., May 2018 until the Nov. 2022 trial)
justifies a significant past noneconomic award, but the current amount was
infected with the improper per diem argument, as well as other reasons
discussed here, and cannot stand. A new
trial is justified because the roughly $1.8 million award for this period is clearly
excessive.

Future noneconomic damages are excessive. It is ironic that Defendant has
benefited from Plaintiff’s pretrial decision to have the SCS implant.
The SCS was effective and avoids even more invasive spine surgeries. As Defendant points out, the undisputed SCS-related
economic damages, both past and future, are already part of the jury’s
award. With proper management as
Plaintiff himself has been able to do, the SCS should thus serve to reduce
future pain and suffering throughout his remaining life. There is ample evidence to that effect. Having been awarded economic compensation for
the pain-alleviating therapeutic device, without more, it is not reasonable to continue
to claim ongoing SCS-related problems on a 24/7 basis for the next 47 years.

Plaintiff showed and explained the SCS/belt/remote function and
testified that he lowered it at night. He
was concerned for its future effectiveness on elevated pain levels because he
did not know what its upper limit would be.
This concession leaves a gap in the future pain aspect of this
case. It is thus reasonable to infer
that since the SCS, Plaintiff has not had elevated debilitating pain levels
that the SCS could not address. Consistent
with Ashley Reyes’ similar testimony on the subject, the court does not recall
seeing Plaintiff remotely adjusting the SCS during the trial or testifying that
he needed to do that at any point during the trial due to pain. Only once did his close friend, Olivier
Alerte, see Plaintiff use the remote in his presence. In the court’s view, Plaintiff’s emotional
concerns relating to having to adjust the SCS to meet ongoing pain levels
during his regular day were often more theoretical than actual, undermining the
reasonableness of Plaintiff’s “half-man, half-robot” feeling over a 24/7 basis.
“Forever damages” relating to that concern
played to the jury’s passion and sympathies. To his benefit, as a patient who was cleared
psychologically for the procedure during a week-long trial of the device, Plaintiff
has learned to live within the limits and inconvenience of the SCS and has
credited it with giving him another new lease on life.

Given the jury’s near one-to-one adoption of the per-diem argument
for both past and future noneconomic damages, the court would also have to
conclude that the jury was swayed by passion and prejudice based on what
happened to Plaintiff in his hoped-for profession, and in his financial and
personal lives where he lost many material possessions (his dream career; his home;
his dogs; his Disneyland trips; his Comecon events; workouts, etc.). But, in doing so without significant
reduction, the jury must have ignored his prior work injury, Moldower’s guarded
prognosis and permanent work restrictions, initially requiring Plaintiff take
“baby steps” upon his return to work; and the acknowledged beneficial effects
of the surgeries he went through.

With the exception of readjustments and new battery or generator
replacements, even the future question marks involving the SCS implant (the
wiring, infections, etc.) were not sufficiently certain to result in the
future.” (Civil Code § 3283; CACI 3905A.) Despite the obvious disfigurement,
discomfort, inconvenience, and embarrassment with having the SCS, there was
plenty of evidence that Plaintiff worked out almost daily with no apparent
difficulties; appears to have a similar physique as he did in the images before
his fall; was still employed; and now is positively motivated by his new child
and family.

Notwithstanding the problems with the jury’s $16 million verdict
on future noneconomic damage, the court does find that there was sufficient
evidence to support significant noneconomic damages based on Plaintiff’s
theories of susceptibility and aggravation of preexisting condition, loss of
enjoyment of life, and his physical pain.
However, given the clearly excessive verdict, a new trial on future
noneconomic damages as well is appropriate.

Having presided over the trial, having observed all the witnesses
testify, and after weighing all the evidence, the court is convinced from the entire record, including
reasonable inferences therefrom, that the jury clearly should have reached a
different verdict on Plaintiff’s past and future noneconomic damages.

Unless plaintiff accepts a remittitur (see discussion following), the
court GRANTS a partial new trial limited to Plaintiff’s past and future
noneconomic damages. If the remittitur
is accepted, the order granting a new trial is denied.

“Code of Civil Procedure section 662.5, subd. (a)(2), authorizes a court that has decided it would
be proper to order a new trial limited to the issue of damages to issue a
conditional order granting the new trial unless the party in whose favor the
verdict has been rendered consents to a reduction of the award in an amount
‘the court in its independent judgment determines from the evidence to be fair
and reasonable.’ A court
exercising this authority acts as an independent trier of fact. (Citation); see Collins v. Union Pac. RR Co. (2012) 207
Cal.App.4^th 867, 882 [trial court sits as 13th juror in determining
whether damage award was excessive]…” Pearl v. City of Los Angeles (2019) 36 Cal.App.5^th 475, 485.

“One of the most difficult tasks
imposed on a fact finder is to determine the amount of money the plaintiff is
to be awarded as compensation for pain and suffering. (Citations omitted.) The inquiry is inherently subjective and not
easily amenable to concrete measurement. (See Beagle v. Vasold (1966) 65 Cal.2d 166, 172 [“‘[t]ranslating pain
and anguish into dollars can, at best, be only an arbitrary allowance, and not
a process of measurement’”; the court can only instruct the jury to “‘allow
such amount as in their discretion they may consider reasonable’” for that
purpose].)” Pearl, supra, at
491-492.

As the court instructed the jury, although “no fixed standard
exists” for deciding an award for past and future physical pain, mental
suffering, etc., the award must be reasonable in amount based on the evidence
and the jury’s common sense. (CACI
3905A).

In Capelouto v. Kaiser Foundation Hospitals (1972)
7 Cal.3d 889 the court noted that “even in the absence of any explicit evidence
showing pain, the jury may infer such pain, if the injury is such that the jury
in its common experience knows it is normally accompanied by pain.” Id.,
at 896. Moreover, “[n]oneconomic damages
do not consist of only emotional distress and pain and suffering. They also
consist of such items as invasion of a person's bodily integrity (i.e., the
fact of the injury itself), disfigurement, disability, impaired enjoyment of
life, susceptibility to future harm or injury, and a shortened life
expectancy.” (Buell-Wilson v. Ford Motor Co. (2006)
141 Cal.App.4th 525, 549, judg. vacated on other grounds sub nom. Ford Motor Co. v. Buell-Wilson (2007)
550 U.S. 931.

The present case involved a significant
major injury which changed the life of Plaintiff Jonathan Choto. His spine was susceptible to further injury
and exacerbation of a pre-existing low back condition for which he had already undergone
spine surgery. There was overwhelming medical
evidence of aggravation of that condition attributable to the fall on
Defendant’s premises. He pursued a
course of treatment to alleviate his severe back pain and only when
conservative treatment failed, did he opt to have the SCS implant, a medical
device that he will have for the rest of his life that needs undisputed further
invasive surgeries every 7 years for battery/generator replacement.

Remittitur- past noneconomic damage. The 4.5 year period for past noneconomic
damage includes months Plaintiff did not seek treatment but there was
sufficient evidence to support his ongoing pain and his attempts to live with
the injury without treatment. Because this
period involved more acute elements of pain and suffering than the post-trial
period, the court finds an annual amount of $300,000 per year is reasonable. Defendant’s $200,000 per year is too low;
Plaintiff’s almost $400,000 per year is too high. Past economic damages shall be reduced to a
reasonable amount of $1,350,000.

Remittitur- future noneconomic
damage. It is not reasonable to conclude
that Plaintiff will experience the same types of noneconomic
damages on a continuous and unchanging basis for the next 47 years. His younger years will be qualitatively
different from his middle, and later years.
He will have good days and bad days. Not all his bad days will be due to the
sequelae of his fall at the Lomita McDonalds.
The court finds that a blended annual damage amount is a fair and
reasonable measure of his future noneconomic damages over his life expectancy. That amount is $150,000 per year. Over 47 years, the total is $7,050,000. Future noneconomic damage shall be reduced to
$7,050,000.

Defendants’ motion for new trial is conditionally granted as to the amounts of past
and future noneconomic damages, unless Plaintiff Jonathan Choto consents to a
reduction in the noneconomic damage judgment to reflect a remittitur by the
court from as as noted above, in which event the motion for new trial will be
denied.

Prevailing party.
There is no dispute that Plaintiff is the prevailing party and is
entitled to seek costs as allowed by law. (CCP § 1032(b))

Plaintiff’s Objection to the timeliness of service
of Defendant’s motion.
Defendant contends Plaintiff’s motion, which was e-filed on 4:59 p.m. on
1/6/23, the last day under CRC Rule 3.1700(b)(1), was not served until 1/8/23
(a Sunday), 2 days after the Friday, 1/6/23, deadline. Plaintiff’s metadata expert opined that
service by email was not made until 1/8/23.

The failure to timely file and serve a motion to tax or strike
costs constitutes a waiver of the right to object to costs, unless the court in
its discretion grants relief under CCP § 473, such as based upon a finding of
excusable neglect. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; see also Cal.
Rules of Court, rule 3.1700(b)(3) [“The party claiming costs and the party
contesting costs may agree to extend the time for serving and filing the cost
memorandum and a motion to strike or tax costs.
This agreement must be confirmed in writing, specify the extended date
for service, and be filed with the clerk.
In the absence of an agreement, the court may extend the times for
serving and filing the cost memorandum or the notice of motion to strike or tax
costs for a period not to exceed 30 days.”].)

Here, Defendant’s motion to strike/tax was timely filed on the
last day, but the parties dispute the date Defendant served the motion. Defense counsel’s legal secretary attests to
her service and provides a copy of her email which shows it was sent from her
computer on 1/6/23 at 3:55 p.m. This
service is consistent with the timely filing of the motion that occurred about
an hour later according to the court’s electronic docket. Her 1/6/23 email was sent to several people
on both sides, one side (Plaintiff’s counsel) offering metadata-supported evidence
rebutting the secretary’s declaration by showing the email could not have been
sent on 1/6/23, but was sent on 1/8/23 at 11:00
a.m. Of some interest, no one on
the receiving defense end of the secretary’s email submitted proof that they
received the email earlier than 1/8/23.
In fact, the defense can now only say there must have been an
unexplained “glitch” after the legal secretary sent her email on 1/6/23 that
caused the delay in the email, showing a 1/8/23 transmission. Whatever happened, and assuming even the two-day
delay (on a weekend no less), the court finds Plaintiff was not prejudiced and
there is more than adequate good cause to grant 473 relief as permitted by
(b)(3).

Accordingly, Plaintiff’s timeliness objection
is overruled; his motion to strike Defendant’s motion on that basis is denied.

Plaintiff’s memorandum of costs. Plaintiff’s memorandum of costs lists ten
categories of costs totaling $933,117.14, the bulk of which consist of expert
witness fees (#8) and prejudgment interest (#16) based on Plaintiff’s obtaining
a verdict that exceeded his CCP § 998 offer (998) served on Defendant about
four months before trial, as discussed below.

The court discusses the disputed categories in the same numerical
order as presented in the memorandum, with the exception of Items 8 and 16,
which are discussed last in conjunction with the 998 issue.

Defendant objects to the post-offer costs of experts as an invalid
998 cost item based on a lack of a good faith 998, discussed below. As discussed below, Plaintiff is entitled to
all his postoffer expert witness costs in accordance with the court’s finding
the 998 offer valid.

16. Other. Prejudgment interest per CCP 998; Mediation;
Witness Location Services

· Prejudgment
interest (on the original Judgment amount):
$5,149.07 daily interest from 7/1/22 to 12/6/22 $828,912.13
- $10,210= $818,702.13

Defendant argues Plaintiff is not
entitled to claim prejudgment interest (presumably made under Civil Code § 3291)
and moves to tax/strike this item based on an invalid 998 offer “not in good
faith” (Motion ii:6-7 and passim).
As in the post-offer expert costs, this is the sole ground raised
against this item. As discussed below,
Plaintiff is entitled to prejudgment interest based on a valid 998 offer.

(d) If an offer made by a plaintiff is not accepted and the defendant
fails to obtain a more favorable judgment or award…, the court…, in its
discretion, may require the defendant to pay a reasonable sum to cover
postoffer 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 during trial…, of the case by the
plaintiff, in addition to plaintiff’s costs.

If the plaintiff makes an offer pursuant to Section 998 of the
Code of Civil Procedure which the defendant does not accept prior to trial or
within 30 days, whichever occurs first, and the plaintiff obtains a more
favorable judgment, the judgment shall
bear interest at the legal rate of 10 percent per annum calculated from
the date of the plaintiff's first offer pursuant to Section 998 of the Code of
Civil Procedure which is exceeded by the judgment, and interest shall accrue
until the satisfaction of judgment.

On 11/17/22, Jonathan Choto obtained a verdict in his favor in the
amount of $18,794,132.14. Because the
verdict exceeded his earlier offer to compromise of $2 million under CCP § 998
(served on 7/1/22, before the then-scheduled trial date of 8/18/22), he claims
entitlement to the above two categories of costs in items 8 (postoffer expert
witness fees) and 16 (prejudgment interest on the verdict from the date of the
offer until the underlying judgment has been satisfied). This case requires the court to consider the
totality of the circumstances as of the date when Plaintiff’s $2 million
settlement demand was made.

Because Plaintiff obtained a more
favorable result than his 998 offer, he has met his initial prima facie burden
to show the offer was within the “range of reasonably possible results” at trial,
entitling him to claim 998 costs. (Licudine
v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5^th 918, 926,
citing Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692,
700.) As the offeree, Defendant “bears
the burden of showing that an otherwise valid 998 offer was not made in good
faith.” (Id.)

Defendant has offered essentially just one reason why the 998 was
not made in good faith on 7/1/22: it
could not properly evaluate the $2 million 998 because Plaintiff did not tell
Defendant early enough that Plaintiff had decided to go through with the SCS
trial on 7/26/22. However, Plaintiff’s
evidence clearly shows (see Hennessey declaration), Defendant did nothing in
the face of obvious verified information regarding the possibility of the SCS
and Plaintiff’s decision to go through with it, all before the 998 expired. (Compare,
e.g.., Hennessey decl. ¶¶11-12, with ¶5 of the Phillips declaration.) It is noteworthy that Defendant does not state
what it did or tried to do on its own to follow through on this 7-figure demand
in the face of these disclosures. Defendant’s claim that it had no knowledge
“the treatment was being contemplated” or any knowledge of the permanent SCS until
after it received Dr. Miller’s files in late September 2022 (Motion, 3:9-17;
¶4, Chang moving declaration), though unsupported, does not absolve Defendant’s
abject failure to act diligently in light of what Plaintiff had already
disclosed well before September 2022. Given
its lack of discovery, and minimization of Plaintiff’s fall-related injuries
all the way through trial, it is reasonable to infer that Defendant made a
conscious decision to let the 998 time elapse without undertaking any action on
its part and without concern with whether or not the SCS came to fruition. Defendant has not shown that it would ever
have seriously considered a 7-figure demand had it known that the SCS was in
place.

One also could easily argue that the SCS information was not even
all that necessary to determine the good faith of a low 7-figure offer at the
time it was made.[6] In fact, Plaintiff’s offer pre-dated his
visit with Miller on 7/6/22 when the decision to go ahead with the SCS trial
was made. Plaintiff had undergone major
surgery after the accident, had sought further treatment and diagnostic tests, had
permanent nerve injury; and was still having serious pain issues, all of which were
already known to Defendant. According to
Plaintiff’s evidence, Defendant did nothing during the discovery period to
evaluate fairly even those pre-SCS claims.

Unlike the defendant in Licudine,
who had “very little information” (Licudine, supra, at 927) when the 998
was served (in Licudine just 19 days after service of the complaint),
here, so close to trial, Defendant had or should have had a good handle on the potential
value of the case. Liability was never seriously
in dispute and the amount of past and future damages for the various injuries and
medical expenses should well have shown the 998 offer was reasonable when
made. Defendant did not contact
Plaintiff to request more information or time, and until the very end, disputed
Plaintiff’s nature and extent of injuries (via its expert Feuerman). The
absence of this “third” Licudine factor (Licudine, supra, at 926;
“Third, did the [offeree] alert the offeror that it lacked sufficient
information to evaluate the offer and, if so, how did the offeror respond?”)
further supports a finding that there was no bad faith or deception on
Plaintiff’s part.

To conclude, the court finds that Plaintiff’s CCP § 998 offer of
$2 million was a valid offer at the time it was made on 7/1/2022. Having considered all the relevant
circumstances existing as of 7/1/22, the court finds that Defendant has not met
its burden to show that Plaintiff’s 998 offer was not made in
good faith. Thus, the court denies the
motion to tax the 998-related items in items 8 and 16.

Plaintiff is entitled to prejudgment interest
claimed in Item 16 from 7/1/22 until the underlying judgment is satisfied, but
the actual daily amount shall be determined after Defendant’s new
trial/remittitur motion when the final judgment amount will have been
determined.

[1] Defendant
has not disagreed with Plaintiff’s characterization of its grounds for new
trial as limited to only one ground (Opp. 12:2-3). Though unstated, CCP § 657 (6), insufficiency
of the evidence to justify the verdict and verdict against the law, is an
available ground.

[2] At
trial, Defendant’s closing argument offered the jury two scenarios. If the jury accepted Plaintiff’s causation
argument, Defendant valued Plaintiff’s future noneconomic damage at $100,000
and past noneconomic damages at $200,000 per year for three years, giving
itself a discount of one year or so ostensibly because Plaintiff did not treat
with anyone. Assuming the jury found no
causal connection, and only a sprain/strain injury, Defendant’s second scenario
offered a verdict of $50,000 in past noneconomic and zero for future noneconomic.
Defendant’s motion does not propose any
specific amounts.

[3] The
court does not find verdicts either side offers in factually dissimilar
unpublished cases helpful when the court ultimately has to make its own
independent finding from the evidence in this case.

[4]
Plaintiff’s closing argument for future noneconomic damages asked for $18.5
million over Plaintiff’s 47-year life expectancy. As Plaintiff points out, the
jury awarded less, $16 million, which Defendant still equates to roughly
$45/hour over a 40 year period and roughly $39/hour over the longer
lifespan. On the other hand, it is more than
coincidental that the jury adopted Plaintiff’s past noneconomic damage
calculation as Defendant calculated in its motion. (See motion, at 12, fn. 8)

[5] In
stark contrast, the defense’s unconvincing closing argument at trial relied on
the preposterous medical opinions of its expert, Feuerman, and compounded the
problem by repeating his sprain/strain diagnosis and advancing even more
preposterous low-ball damage amounts mentioned during closing, with zero
damages for future pain and suffering. Despite
admitting liability and causation, the defense seriously undervalued this case. (See fn. 2
herein.)

[6] No
doubt the timing of the 998 had something to do with the upcoming trial date in
August, but the court does not see any evidence of a nefarious scheme to keep
it secret or sandbag the defense.