Case Number: BC597023 Hearing Date: June 14, 2018 Dept: A

# 3. Hernan Osorio v. Wesley T. Williams, et al.

Case No.: BC597023

Matter on calendar for: Hearing on motions for attorney fees and prejudgment interest

Tentative ruling:

I. Background

In this personal injury action arising from a rental car backing into, and bumping, Plaintiff Hernan Osorio, the jury returned a verdict in favor of Plaintiff and against Defendants Wesley T. Williams and Allegis Group, Inc. The jury awarded:

· Past economic loss (lost earnings) of $76,360;

· Future economic loss (lost earnings) of $53,200.00;

· Past noneconomic loss (pain and suffering) of $158,000; and

· Future noneconomic loss (pain and suffering) of $665,000.

Plaintiff now moves for attorney fees under CCP § 2033.420 (failure to admit the truth of a matter) and prejudgment interest under CCP § 3291 (judgment greater than rejected CCP § 998 offer). Defendants oppose the motions.

II. Standard

a. CCP § 2033.420

CCP § 2033.420 states that if a party fails to admit the truth of any matter when requested to do so, and the requesting party thereafter proves the truth of the matter, the requesting party may move the court for reasonable expenses and reasonable attorney fees in making that proof. The court must make the order unless, in pertinent part, the party failing to make the admission had reasonable ground to believe that they would prevail on the matter or there was other good reason for the failure to admit.

b. Civil Code Section 3291 and CCP § 998

CCP § 998 allows for a party to serve a written offer to the other party before trial. Under Civil Code Section 3291, if the CCP § 998 offer is rejected and the plaintiff obtains a more favorable judgment, the plaintiff is entitled to 10% interest on the judgment dating from the time the § 998 offer was made. Interest accrues until satisfaction of the judgment.

III. Analysis

a. Attorney Fees under CCP § 2033.420

On July 26, 2016, Plaintiff requested Defendants “[a]dmit that on October 10, 2013 you ran over or struck Plaintiff while driving your rental car at the premises of Enterprise.” (Plaintiff Request for Admission, July 26, 2016, No. 3)(emphasis omitted.) The response was an unqualified denial. Plaintiff argues that this was unreasonable in light of the evidence at trial and the denial caused Plaintiff’s counsel to spend many hours proving the matter. Plaintiff argues the application of a lodestar multiplier of 1.5 for a total attorney fee request of $35,100.00.

Defendant argues that Plaintiff routinely synonymously used “ran over” and “struck” in the complaint and that, based on the phrasing of the request for admission, Defendant denied because he did not run over Plaintiff with his vehicle. Defendant also points out that Plaintiff’s fees are based on Plaintiff’s entire trial preparation time and time proving “causation and damages;” not just to prove the matter requested. (Mtn. Attorney Fees, pg. 12–13.)

In the Complaint, Plaintiff uses “ran over” and “struck” synonymously. On page 5, Plaintiff alleges: “While driving in the parking lot, Defendant Williams ran over plaintiff. After Defendant Williams struck plaintiff with the vehicle he was driving . . . .” (Complaint pg. 5.) Plaintiff repeats the language when alleging exemplary damages on page 6. That Plaintiff interchangeably using the terms “ran over” and “struck” creates ambiguity for Defendants and it was therefore reasonable for Defendants to deny the request for admission. The jury clearly found an impact, but it is not clear that the jury found that Plaintiff was run over or struck. Plaintiff had not defined the terms and used them in an inconsistent manner. Regardless of the disjunctive phrasing, in the context of the litigation between the parties, Defendant’s argument that it could prove it did not “run over” Plaintiff was reasonable.

The motion for attorney fees for proving a matter is denied.

b. Prejudgment Interest

Plaintiff also moves for prejudgment interest in the amount of $62,374.22. Plaintiff served Defendants with a CCP § 998 offer of settlement in the amount of $150,000. This was not accepted. Plaintiff then received a judgment of $952,560.00. Defendants oppose and argue that the § 998 offer was unapportioned between the Defendants and is therefore void.

When a plaintiff makes a CCP § 998 offer to multiple defendants, as Plaintiff has done here, it must be sufficiently specific to allow an individual defendant to evaluate it. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548.) The reasonableness of the offer is made in the light of circumstances at the time of the offer. (Id. (citations omitted).) Whether a plaintiff needs to apportion their § 998 offer between the defendants depends on whether the defendants have joint and several liability. (Taing, et al. v. Johnson Scaffolding Co., et al. (1992) 9 Cal.App.4th 579, 553–554.) If the offer was not apportioned between the defendants and they can potentially be found severally liable, the offer is void as lacking sufficient specificity. (Burch, supra, 109 Cal.App4th at 547.)

At the time of the CCP § 998 offer, Plaintiff was proceeding on two causes of action, intentional tort and negligence. The intentional tort was not dismissed until the first day of trial. (Mtn. Opp. Exh. A.) Defendants filed answers denying the allegations and asserted defenses on comparative fault and under Proposition 51. (Id. pg. 4.) Proposition 51 deems a defendant’s liability for noneconomic damages, based on principles of comparative fault, “shall be several only and shall not be joint.” (Civ. Code § 1431.2(a); Burch, supra, 109 Cal.App4th at 550.) The complaint alleged noneconomic damages and the jury awarded noneconomic damages. As Defendants could potentially have been held severally liable, the CCP § 998 offer needed to apportion the offer among the defendants. The offer did not do so. (Mtn. Interest Exh. 1.) Additionally, at the time of the offer, the parties had not stipulated to joint and several liability. The offer is therefore void.

The motion for prejudgment interest is denied.

IV. Ruling

The motion for attorney fees is denied.

The motion for prejudgment interest is denied.