Judge: Stephen I. Goorvitch, Case: 20STCV36230, Date: 2023-11-13 Tentative Ruling

Case Number: 20STCV36230    Hearing Date: February 9, 2024    Dept: 39

Dr. James Isaacs v. Pathway Vet Alliance, et al.

Case No. 20STCV36230

Order #1 of 2

Motion for New Trial

            Plaintiff Dr. James J. Isaacs (“Plaintiff”) filed this action against Pathway Vet Alliance (“Defendant”).  At trial, Plaintiff presented evidence that he boarded his cat, Little Tiger, with Defendant when his family and he visited San Francisco.  While in Defendant’s care, Little Tiger suffered an injury to his eye, which eventually led to his death.  Plaintiff proceeded to trial on claims for intentional infliction of emotional distress, negligence, and trespass to chattels.  The Court granted Defendant’s motion for nonsuit on the claim for intentional infliction of emotional distress.  The jury returned a verdict in favor of Plaintiff on the remaining causes of action and awarded a total of $255,000 in damages based upon $5,000 in economic damages, $150,000 in past non-economic damages, and $100,000 in future non-economic damages. 

            Defendant moves for a new trial.  “The right to a new trial is purely statutory . . . .”  (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)  Defendant cites Code of Civil Procedure section 662.5, which establishes the procedure if the Court grants a motion for new trial based on excessive damages.  Defendant references the insufficiency of the evidence.  Therefore, the Court construes this motion as having been filed under Code of Civil Procedure section 657, subdivisions (5) and (6).  The Court may grant a new trial based on “[e]xcessive or inadequate damages” or “[i]nsufficiency of the evidence to justify the verdict or other decision[.]”  (Code Civ. Proc., § 657, subds. (5), (6).)  “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, . . . unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”  (Code Civ. Proc., § 657.)  If the damages are excessive, the Court may grant a remittitur.  (Code Civ. Proc., § 662.5(a)(2).)

            The Court cannot conclude that the jury’s award of emotional distress damages was excessive.  By definition, emotional distress is difficult to quantify.  The fact that the jury only awarded $250,000 makes clear that the jury considered only Plaintiff’s emotional distress and did not base the award on damages to family members who were not plaintiffs to this action.

Nor can the Court conclude that the evidence did not support the verdict.  The Court cannot weigh the evidence or determine the credibility of witnesses on motions for judgment notwithstanding the verdict.  (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)  Plaintiff is “entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor.”  (Castro v. State of Calif. (1981) 114 Cal.App.3d 503, 507.)  Defendant’s counsel argues that the jury could not award emotional distress damages based upon an injury to Plaintiff’s cat.  The law in California does not support that argument, as the Court previously ruled: A plaintiff may recover emotional distress damages for injury to an animal that forms the basis of a claim for trespass to chattel.  (See, e.g., Plotnick v. Meihaus (2012) 208 Cal.App.4th 1590, 1607-1608.)  The Court finds that there was sufficient evidence to support the verdict, especially considering Civil Code section 1838:

“If a thing is . . . injured during its deposit, and the depositary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully . . . permitted the . . . injury to occur.”

(Civ. Code, § 1838.)  Based upon the record, the jury reasonably could have found that Defendant was not forthcoming about the circumstances of Little Tiger’s injury or willfully misrepresented its culpability.

            Based upon the foregoing, the Court denies Defendant’s motion for new trial.  The Court’s clerk shall provide notice.      

Order #2 of 2

Motion to Tax Costs

            Plaintiff submitted a memorandum of costs in the amount of $7,472.19.  Defendant challenges the following costs: (1) Filing fees of $2,881.17, (2) Attachment costs of $527.11, and (3) Costs for models, enlargements, and photocopies in the amount of $2,085.96.  Plaintiff’s opposition contains no documentation to support these requests, but according to Defendant’s counsel’s declaration, filed on January 16, 2024, Plaintiff submitted documentation directly to him.  The Court rules as follows: 

            1.         Filing Fees – Plaintiff’s request includes payment for messenger services, which the Court may approve.  (See Code Civ. Proc., § 1033.5(c)(4).)  The Court finds that these services were reasonably necessary to Plaintiff’s prosecution of this case.  The Court approves $1,235.89 and taxes Plaintiff’s costs in the amount of $1,645.28.

            2.         Attachment Costs – There were no attachment proceedings, and the Court cannot determine whether these costs are proper and reasonably related to the prosecution of this case.  Therefore, the Court taxes this cost of $527.11.

3.         Models/Enlargements/Photocopies - “Models and enlargements of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.”  (Code Civ. Proc., § 1033.5, subd. (a)(13).)  The costs Plaintiff seeks include $227.24 for enlargements, $430.85 for enlargements and $299.25 for exhibit books, which the Court considered reasonably helpful.  “[I]t would be inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial.”  (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.)  However, Plaintiff does not explain the $1,058.65 in costs Plaintiff incurred for printing.  Accordingly, the Court approves $1,027.31 and taxes Plaintiff’s costs in the amount of $1,058.65.

4.         Conclusion and Order – Defendant’s motion to tax costs is granted in part and denied in part.  The Court taxes costs in the total amount of $3,231.04.  Plaintiff shall recover $4,241.15 in costs.  The Court’s clerk shall provide notice.