Judge Richard S. Whitney, Case 37-2020-00015799-CU-PA-CTL 2023-12-22 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2020-00015799-CU-PA-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 21, 2023

12/22/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2020-00015799-CU-PA-CTL SOLIS VS HURMIZ [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT'S MOTION TO STRIKE AND/OR TAX PLAINTIFF'S COSTS is GRANTED, in part.

Defendant KHAIRI HURMIZ ('Defendant') seeks to strike and/or tax Plaintiff CLEMENTE SOLIS JUNIOR's ('Plaintiff') costs. Defendant asserts, inter alia, that Plaintiff's CCP section 998 offer to compromise ('998 Offer') of $250,000, was 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 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.

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3022907 48 CASE NUMBER: CASE TITLE: SOLIS VS HURMIZ [IMAGED] 37-2020-00015799-CU-PA-CTL (1987) 195 Cal.App.3d 692, 700.) 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.) Unlike in Licudine, where the offer was found to be made in bad faith, Plaintiff negotiated with Defendant's insurer and provided informal discovery, Plaintiff agreed to submit to an independent medical examination, and waited for his fusion surgery. Plaintiff treated the 998 Offer as being extended by Defendant's requests for more information. The Court finds Plaintiff's policy-limits demand was a reasonable estimate of what Plaintiff could achieve at trial and, indeed, Plaintiff obtained more than the 998 Offer by approximately double.

The Court also finds that Defendant had enough information at the time of Defendant's own 998 offer of $100,000, to properly evaluate Plaintiff's 998 Offer. Defendant does not provide evidence that the 998 Offer was not extended. While Defendant had not obtained discovery as to all aspects of the case, including future medical costs, at the time of the 998 Offer, CCP section 998 does not require all discovery be conducted. CCP section 998 offers are intended to reduce the costs of litigation, including discovery costs. The Court finds Plaintiff has not met his burden to demonstrate the 998 Offer was made in bad faith and/or that it was unreasonable.

Defendant challenges all of Plaintiff's costs based on the failure to provide documentation.

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 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).) 'Once costs claimed in the memorandum are challenged via a motion to tax, '[d]ocumentation must be submitted' to sustain the burden.'' (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265 [Citation omitted.) After Defendant filed this motion, Plaintiff provided documentation. The Court agrees Defendant has not sufficiently demonstrated the expert fees are unreasonable. Defendant merely pointed to the lack of documentation. In reply, Defendant does not demonstrate the documentation does not support the amount of expert fees. However, Plaintiff does acknowledge and waive $46,481.26 in expert fees which were included as a result of clerical error.

As to the remainder of the costs as issue, the Court finds Defendant's arguments unpersuasive with the following exceptions. The Court agrees $323.22 for easels and trial supplies were not reasonably necessary (the Court will strike the $2,249.23 for 'Trial Costs' as Plaintiff agrees to waive the remainder). The Court also agrees a 'nurse observer' at an independent medical examination was not a reasonably necessary cost to be borne by Defendant (the Court will strike $425). The Court finds the costs in Exhibit 24 should be taxed by $1,300 as the amounts for the dinners were not reasonably necessary. The Court also finds that the jury consulting fees were not reasonably necessary (the Court will strike the amount of $56,025.00, which includes the amount Plaintiff agreed to waive).

Defendant argues that prejudgment interest should be stricken in an amount to account for COVID-19.

The Court disagrees. Emergency rule 10 allowed for the extension of the time to bring a case to trial under CCP section 583.320 by six months (not 2 years as Plaintiff suggests). This suggests, at most, the Court should consider six months as period the case could not be properly brough to trial. But more importantly, this case could have moved forward during the infancy of the case even if trials would not have been possible at that time. Defendant has failed to show the case could have been brought to trial earlier were it not for COVID-19. Defendant's argument fails.

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3022907 48 CASE NUMBER: CASE TITLE: SOLIS VS HURMIZ [IMAGED] 37-2020-00015799-CU-PA-CTL In addition to the above, Plaintiff waives the following costs: $3,037.19 and $1,275.00 for summary and research costs, $7.96 in postage costs, $109.19 for Uber travel fees, and $80.69 for mileage or CNK. In total, including the amounts Plaintiff agreed to waive, the Court taxes the costs by $110,990.52. The motion is granted, in part, in that Plaintiff's costs are taxed in the total amount of $110,990.52.

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