Judge: Richard S. Whitney, Case: 37-2018-00041012-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/15/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2018-00041012-CU-PO-CTL ELSNER VS. SAN DIEGO GAS AND ELECTRIC COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFFS' MOTION TO STRIKE OR IN THE ALTERNATIVE TAX COSTS is DENIED.

Defendants SAN DIEGO GAS & ELECTRIC COMPANY and GEORGE WILLIAM DELUCAS, III ('Defendants') succeeded on their motion for summary judgment, which was granted on November 5, 2021. On December 6, 2019, Defendants served each Plaintiff with a CCP section 998 offer to compromise ('998 Offers'), offering to settle Plaintiffs' claims for $10,000 (each) and a waiver of costs.

Plaintiffs LINDA KAY ELSNER and KELSEY CARSON ELSNER's ('Plaintiffs') first argument is that the 998 Offers were not made in good faith and were unreasonable.

'The purpose of Code of Civil Procedure section 998 is to promote early resolution of litigation by encouraging parties to make-and accept-reasonable settlement offers.' (Chen v. BMW of North America, LLC (2022) 87 Cal.App.5th 957, 961.) '[T]he pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case.' (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) The 'reasonableness of such offers must be made in light of the circumstances existing at the time of the offer.' (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 264.) As a general rule, the reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant. It goes without saying that a defendant is not expected to predict the exact amount of his exposure. If an experienced attorney or judge, standing in defendant's shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable.

(Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) 'If the offer is found reasonable by the first test, it must then satisfy a second test: whether defendant's information was known or reasonably should have been known to plaintiff.' (Id.) 'An important factor in deciding whether a section 998 offer is unreasonable or in bad faith is whether the offeree was given a fair opportunity to intelligently evaluate the offer.' (Najera v. Huerta (2011) 191 Cal.App.4th 872, 878.) 'Normally, therefore, a token or nominal offer will not satisfy this good faith requirement....' (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) 'Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes Calendar No.: Event ID:  TENTATIVE RULINGS

2995392  72 CASE NUMBER: CASE TITLE:  ELSNER VS. SAN DIEGO GAS AND ELECTRIC COMPANY [IMAGED]  37-2018-00041012-CU-PO-CTL prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise.' (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152 [Citing Elrod v. Oregon Cummins Diesel, Inc.

(1987) 195 Cal.App.3d 692, 700.) Plaintiffs assert the 998 Offers were nominal in amount, citing the fact this is a wrongful death action where, at a minimum, the decedent's death caused loss of earnings exceeding $500,000. In Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53 the court found the liability of the offeror was 'tenuous indeed,' but that the 'enormous exposure' could lead the trial court to believe there was no expectation that an offer of $2,500 would be accepted. (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) Unlike in Pineda where the plaintiff sought $10 million, which could potentially be supported by the fact the decedent was a 'leading jockey,' Plaintiffs point to evidence that the amount of loss in earnings could have been more than $500,000. Defendants did not face the same 'enormous exposure.' Further, Plaintiffs should have known from the outset of the case that they would have to face very unfavorable disputed facts of how the accident occurred if they were to go to trial – Defendants contended decedent was drinking and driving and was in the road as a result of attempting to illegally pass a vehicle on a windy road. The plaintiff in Pineda did not confront a case of comparative negligence on top of a strong case for application of the sudden emergency doctrine.

In Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, the offer was made 'just 19 days' after the 'three-page,' 'bare bones' complaint was served, but the offer was 'within the 'range of reasonably possible results' at trial.' (Id. at 926-27.) Here, Defendants served the 998 Offers approximately a year and a half after the case was filed and after the parties had already conducted some discovery, including the depositions of two of the percipient witnesses-April Larue and Ryan Valverde. In Licudine no depositions had been taken. (Id. at 927.) Licudine is not analogous.

Plaintiffs do not dispute that the discovery and investigation up to the point of the 998 Offers was sufficient for Plaintiffs to know: (1) Decedent was travelling a curving two-lane mountainous road; (2) he was riding a motorcycle at an unsafe speed; (3) he was wearing a helmet that said 'psycho' in reverse so that word could be seen and read by motorists in their rear-view mirrors; (4) immediately before the accident, he illegally passed several cars on the left by crossing over the double-yellow center lines into the oncoming lane; (5) Decedent suddenly swerved to his right, back into his lane and managed to strike the left front of an automobile driven by Mr. Valverde, causing Decedent to lose control; (6) Decedent then swerved back into the oncoming lane where he struck a large dirt and rock embankment and became disengaged from his motorcycle and then he (and his motorcycle) slid back across the southbound lane immediately into the path of the oncoming SDG&E truck driven by Delucas; (7) who had just entered a blind curve; (8) Delucas was traveling below the posted speed limit; (9) when confronted with this sudden and unexpected emergency, Delucas slammed on his brakes, was unable to stop and instead tried to straddle Decedent with the SDG&E truck's tires; (9) eyewitness accounts described the accident as sudden and occurring in an instant; and (10) the medical examiner was unable to establish that Decedent had in fact been struck by the SDG&E truck.

While Plaintiffs contest that there is sufficient evidence that Decedent was under the influence of alcohol above the legal limit at the time of the incident, Plaintiffs do not provide any evidence to contradict the evidence referred to by Defendants. Considering the above, the Court finds Defendants' 998 Offers represents a reasonable prediction of the amount of money Defendant would have to pay Plaintiffs following a trial. The Court also finds the information above was known or reasonably should have been known to Plaintiffs at the time the 998 Offers were made. Therefore, the 998 Offers were made in good faith and were not unreasonable.

Plaintiffs also assert expert witness fees were not reasonably necessary such that they should be stricken.

If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are Calendar No.: Event ID:  TENTATIVE RULINGS

2995392  72 CASE NUMBER: CASE TITLE:  ELSNER VS. SAN DIEGO GAS AND ELECTRIC COMPANY [IMAGED]  37-2018-00041012-CU-PO-CTL properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.

(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 'An award of costs shall be subject to the following: ... (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount.' (Code Civ. Proc., § 1033.5(c)(2)-(3).) 'The burden of proof that the deposition was unnecessary or that the costs of taking the deposition were unreasonable is on the party seeking to have that item taxed or reduced.' (Republic Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 228 [Citation omitted].) This Court, as in Silver v. Gold (1989) 211 Cal.App.3d 17, is unaware of any authority that states a party is obligated to halt preparing its case for trial while a motion is pending. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 25–26.) The Court is unconvinced that expert fees incurred in anticipation of further litigation are not considered reasonably necessary even if they were not necessary to the motion for summary judgment that resulted in a judgment. The plain language of CCP section 998(c) permits the recovery of '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 arbitration, or during trial or arbitration, of the case by the defendant.' (Code Civ. Proc., § 998(c) [Emphasis added].) There is no limitation on costs incurred around the timing of a dispositive motion. Plaintiffs' argument in this regard fails.

'Although the statute refers to expert witnesses, courts have recognized that 'section 998 ... covers the cost of experts who aid in the preparation of the case for trial, even if they do not actually testify.'' (Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 222 [Citation omitted].) Defendants are entitled to recover expert costs incurred preparing for trial if they were reasonably necessary, even if the experts were not retained experts. Plaintiffs' argument in this regard fails.

The Court agrees Plaintiffs fail to meet their burden to object to the prima facie showing by Defendants.

''[M]ere statements' in a motion to strike and attorney declaration 'are insufficient to rebut the prima facie showing.'' (Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 896 [Citation omitted].) Plaintiffs state the invoices are not detailed enough, but they do not provide any analysis of the invoices themselves. Plaintiffs' argument in this regard fails.

Finally, Plaintiffs assert $13,099.25 in connection with deposition costs should be taxed because Defendants do not explain why they were necessary, and the majority were incurred after Defendants filed and served their notice of motion for summary judgment. As addressed above, the timing argument fails. The deposition costs are recoverable. (Cal. Code Civ. Proc., §1033.5(a)(3)(A).) 'The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial.' (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57.) Plaintiffs fail to acknowledge that the depositions of SDG&E's PMQs and Officer Harris took place because Plaintiffs noticed their depositions. The other deponents are parties to the litigation and Jared Grieshaber, a CHP officer who arrived on the scene. Plaintiffs have not met their burden to show the depositions were unnecessary or that the costs of taking the depositions were unreasonable.

The motion is denied.

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