Case Number: BC551002 Hearing Date: April 23, 2018 Dept: I

LESTER CAMACHO . BRENTWOOD HOLDINGS PARTNERS, LLC

BC551002

PLAINTIFF’S MOTION FOR A NEW TRIAL – Hearing: April 23, 2018

Following a three and one-half week trial, the jury in this matter awarded plaintiff, Lester Camacho, $450,000 for injuries he suffered in a fall that occurred in a stairway of the apartment building he lived in that was owned by the defendant Brentwood Holdings Partners, LLC and the Blue Jay Group (later determined to be Vista Associates). Mr. Camacho slipped on and fell backwards on the stairway hitting his head on a door at the bottom of the stairs, and claimed permanent traumatic brain injury resulting from the fall. Plaintiff now seeks a new trial on the issue of damages asserting 15 separate grounds of error in the trial proceedings. Plaintiff also suggests an additur of $1,000,000, broken down as $500,000 for loss of earnings capacity by the plaintiff and $500,000 for future medical care. Defendants oppose the motion arguing that none of the alleged grounds for a mistrial are supported by the record. The Court will deny the motion for a new trial and decline to order an additur.

1. ALLEGED INADEQUACY OF DAMAGES AWARDED BY THE JURY

A. Future Medical Care

Plaintiff’s counsel asked for approximately $6,000,000 in damages in his closing argument. [Motion at 2.] That figure included approximately $2,000,00 for future medical care, $815,000 for loss of future earning capacity, and several million dollars for non-economic damages. The jury actually awarded plaintiff $100,000 for future medical care, $200,000 for loss of future earning capacity, and $100,000 for general damages. [Plaintiff’s Motion at 3-5.] Plaintiff’s arguments regarding the claimed inadequacy of these damage awards is based exclusively on a recitation of evidence plaintiff presented at trial that is in some respects misleading and in many respects incomplete as shown by the defendants’ Opposition. For example, plaintiff argues that the future medical damages testimony he presented at trial was substantially “uncontroverted,” when actually that was a major area of dispute during the trial. [Defendants’ Opposition at 2.] As noted by defendants, defense experts presented substantial evidence that the plaintiff suffered no “long lasting symptoms or problems associated with the initial concussion (mild traumatic brain injury).” [Defendant’s Opposition at 2.]

While it is true that plaintiff’s life care plan expert, Jan Roughan, testified that plaintiff would incur approximately $6,000,000 in future medical costs over the rest of his life ($2 Million when reduced to present value), it is also true that the defense life care plan expert placed the actual figure of future medical care that plaintiff would need at $100,000. It was the jury’s job to decide who was more credible and it found for the defendants.

B. Loss of Earning Capacity

Plaintiff argues that the only evidence about his future lost earnings capacity camje from his expert, Philip Sidlow, who testified that his lost future earnings capacity totaled $815, 542. He argues therefore, that the jury’s award of only $200,000 was arbitrary and not based on evidence. However, as defendants point out in their opposition, Sidlow admitted that he used a method of calculation that ignored plaintiff’s actual earnings history, even though he conceded that past earnings history is a proper foundation for calculating future earnings capacity. Since the evidence established that plaintiff’s average earnings prior to the accident was only $12,000 per year and that he was working after the accident, the jury’s award of $200,000 for lost future earnings was justified by the evidence.

C. General Damages

The jury awarded plaintiff $100,000 for past pain and suffering and $50,000 for future pain and suffering. Plaintiff argues that this was inadequate because “. . . the overwhelming evidence was that Mr. Camacho sustained mild TBI with long lasting deficits and impairment.” [Plaintiff Memorandum at 5.] This argument ignores completely the evidence from defense experts that plaintiff’s mild TBI (otherwise known as a concussion) would have resolved completely within four to six weeks after the accident with no long lasting impact. Moreover, the jury was shown video of plaintiff engaging in various aspects of his life after the accident without any apparent difficulty. [Defendants’ Memorandum at 4.] The jury could have and apparently did credit this evidence.

2. The Admission of Medical Lien Evidence and Denial of Plaintiff’s Request to Withdraw from Stipulation Waiving Past Medical Expenses Was Correct

Plaintiff filed a motion In Limine seeking to exclude evidence of his the fact that some of his treating doctors had liens on his recovery, if any , in this case. Plaintiff also entered into a written Stipulation to withdraw his claim to past medical expenses before that motion had been ruled on. [Obberecht Decl. in support of Defendants’ Opposition, Exh. B.] The Court denied the motion in limine because evidence that a witness has a financial interest in the case clearly goes to that witness’ credibility. [See, Evidence Code Sec. 780; CACI .] When the Court denied the motion, plaintiff requested leave to retract his stipulation regarding the past medical claims. The Court denied that request, because defendants opposed the withdrawal of a stipulation they had relied on in preparing for trial. Plaintiff has cited no authority that the introduction of medical lien evidence was error or that the denial of his request to withdraw from a written stipulation he entered into knowing that the MIL was still to be ruled on was error.

3. Alleged Juror Misconduct During Voir Dire

Plaintiff argues that comments by three prospective jurors during voir dire critical of plaintiff’s attorney amounted to misconduct requiring reversal. [Plaintiff’s Memorandum at 7-9.] He also argues that the Court’s failure to intervene to stop these three prospective jurors from making those comments requires reversal. [Ibid.] And he argues that the court “yelled” at him concerning his attempts to discuss the damage claims in this case. [Ibid.] None of these claims has merit.

It is correct that three prospective jurors made disparaging comments about plaintiff’s counsel when be questioned about possible bias. As a result, the court immediately dismissed each of them. [See, Defendants’ Memorandum at 5-6.] The jurors’ comments were apparently triggered by the fact that the court had sustained several objections by defense counsel to plaintiff’s questions of jurors on the ground that he was attempting to precondition the jury about the facts of this case. [See, Defendants’ Memorandum at 6.] As noted by defendants, the court, at the request of plaintiff, examined every juror remaining on the panel of prospective jurors at this point to determine whether any of those jurors had formed any adverse opinions about plaintiff’s counsel of the case as a result of the dismissed jurors comments. [Defendants’ Memorandum at 6.] All of the remaining jurors indicated that they had not been affected by the comments of the dismissed jurors and could be fair and impartial. [Ibid.] It is not true that the court yelled at plaintiff’s counsel during the voir dire or at any other time during the trial. [Ibid.] Moreover, plaintiff has submitted no evidence that the jury was in any way affected by either the comments of the dismissed jurors or the court’s ruling on objections some of his voir dire questions.

4. Dr. Robert Bilder Gave Appropriate Opinion Testimony at the Trial

Dr. Robert Bilder was permitted to testify about the possible neuropsychological impacts of plaintiff’s injuries on plaintiff. He opined that plaintiff suffered no cognitive deficits as a result of the mild TBI he experienced as a result of his fall. Dr. Bilder was eminently qualified to render those opinions.

5. Use of An Article From The American College of Radiology by Defense Counsel

Plaintiff argues that it was error for the Court to allow defense counsel to cross-examine plaintiff’s experts, in part, with use of an article about functional MRI’s. Plaintiff notes that the article had not been produced during discovery. However, the article issued by the principal organization of American Radiologists was established as reliable authority and hence, its use in cross-examination was proper. Moreover, plaintiff produces no evidence that, even if improper, this portion of the trial testimony had any impact on the jury’s decision about damages or any other issue.

6. The Addition of Vista Associates as a Defendant during Voir Dire was Done at Plaintiff’s Request and Plaintiff Made No Other Objection

Plaintiff argues that he was prejudiced by learning just before trial that the Blue Jay Group had changed its name to Vista Associates. As the record reflects (see Plaintiff’s Motion , Aghabala Decl., Exh. 5), when plaintiff was informed of this fact, plaintiff moved the court to add Vista Associates as a defendant and the court granted that motion. Moreover, the defendants stipulated that any judgment against Brentwood Holdings Partners and Blue Jay Group would be treated as a judgment against Vista Associates. Plaintiff made no other request of the court. The claim that plaintiff’s discovery rights were somehow prejudiced by not learning of the name change earlier was never presented to the court. [See, Plaintiff’s Motion, Ahabala Decl., Exhibit 5.]

7. The Jury Instructions And Verdict Form were Agreed to by Plaintiff and Appropriate

Plaintiff also argues that the omission of Vista Associates form the jury instructions and verdict form warrant a new trial. However, plaintiff’s counsel fails to mention that he approved the instructions and the verdict form before they were given to the jury. [Defendants’ Memorandum at 8.] Since plaintiff admits that he earned of the Vista Associates name change during voir dire, he cannot now complain that jury instructions to which he did not object somehow warrants a new trial. Equally important, as the record shows, Blue Jay Group was the management company in charge of the property on which plaintiff fell at the time of the incident. The name change to Vista Associates occurred later. See, Plainitff’s Motion, Aghabala Decl., Ex. T at 32.] Thus, the inclusion of Vista Associates in the instructions and verdict form, in the absence of any evidence about its role would have been confusing to the jury and improper in light of the stipulation by defendants that a finding of liability against them would be treated as a finding of liability against Vista Associates.

8. Dr. Zackler Was Properly Excluded As an Expert For Plaintiff Because He was Never Properly Designated under C.C.P. sec. 2034

Plaintiff argues that it was error to exclude Dr. Zackler from testifying as an expert witness for him and that it was also improper to permit defense counsel to cross-examine plaintiff’s life care plan expert about her reliance on Dr. Zackler for some of her opinions. Neither argument has merit.

A. Plaintiff did not designate Dr. Lester Zackler as an expert witness in his Sec. 2034 designation. [Defendants’ Memorandum at 9.] Nor did plaintiff ever seek leave to amend or augment his expert designation, did not produce any record from Dr. Zackler and did not make him available for deposition. [Ibid.] Plainitff’s suggestion that his expert designation of “all treating physicians” was sufficient compliance with sec. 2034 is plainly wrong. Sec. 2034.210 requires the designation to include the “name and address of any natural person” the party intends to call as an expert. Section 2034.260(b)(1) contains the same requirement and section 2034(c) goes on to require the designating party to provide a brief statement of the expert’s qualification, a summary of the substance of his testimony, a statement that the expert will be prepared to testify to his opinions at a deposition and his fees. Plaintiff never attempted to comply with these requirements as to Dr. Zackler. Accordingly, the Court’s ruling granting defendant’s motion in limine to exclude Dr. Zackler as an expert was appropriate. [Sec. 2034.300.]

B Plaintiff’s argument that it was improper and prejudicial to permit the defense to cross-examine his expert life care planner, Jan Roughan, in part by asking about her reliance on Dr. Zackler’s diagnoses of plaintiff is also without merit. First, plaintiff never objected to the cross-examination on the grounds that it somehow violated the court’s ruling on the motion in limine regarding Dr. Zackler. [See, Plaintiff’s Motion, Aghabala Decl., Exh. 1.] Second, Ms. Roughan testified in response to questions from plaintiff’s counsel that she had relied on conversations with Dr. Zackler and his diagnosis and recommendations for plaintiff in crafting her life care plan opinions. [Id. at 15.] Accordingly, it was perfectly appropriate to allow the defense to cross-examine Ms. Roughan about the information she relied on from Dr. Zackler in forming her opinions and how she received that information.

9. Defense Counsel Did Not Engage in Misconduct by Commenting On Dr. Zackler During Closing Argument

Plaintiff argues that it was error for defense counsel to suggest that Dr. Zackler was not called to testify by plaintiff because of his opinion about plaintiff’s condition. It is true that it is improper to comment on the absence of a witness who is equally available to be subpoenaed by either party where that comment invites the jury to speculate about what that witness might have said. However, in this case, defense counsel did no such thing. Counsel’s only comment about the absence of Dr. Zackler as a witness related only to Dr. Zackler’s opinion that plaintiff suffered from a particular disorder that had been testified to by plaintiff’s life care planning expert, Jan Roughan.t [See, defendants’ Memorandum at 10.] Since that evidence came in through plaintiff’s own expert witness, there was no concern that, nor did the defense counsel suggest, that the jury speculate about that diagnosis.

10. Plaintiff’s Presented No Evidence That Any Juror Witnessed Or Was Prejudiced by the Court’s Communication with Lucille Hotnog

During the trial, the court had a brief conversation with a witness, Lucille Hotnog, during a recess after she had been excused as a witness. That conversation had nothing to do with Ms. Hotnog’s testimony and plaintiff has not suggested otherwise. Plaintiff’s speculation that jurors “may have overheard” the conversation is not supported by any evidence. Later, defense counsel informed the court that Ms. Hotnog had made a brief statement to a juror in the courtyard that “she looked very young.” [Defendants’ Memorandum at 11.] After that report, neither defense counsel nor plaintiff’s counsel requested any further action by the court with respect to Ms. Hotnog’s brief conversation with the court or her brief comment to a juror. Nor has plaintiff submitted any evidence that any juror was influenced in any way by either event. Accordingly, there is no basis for a new trial with respect to these events.

11. The Request For An Additur

As an alternative to plaintiff’s request for a new trial, plaintiff requests an additur of $1,000,000 to the judgment. As noted by defendants, plaintiff cites no authority for such an additur under the circumstances of this case, nor does plaintiff explain why an additur would be appropriate. C.C.P. Section 662.5(a)(1) gives the court discretion to order an addtur only where the court has found that granting a new trial would be proper on the ground of inadequate damages. Here, the court has not found that a new trial would be proper on that ground. Accordingly, plaintiff’s request for an additur is denied.

LESTER CAMACHO . BRENTWOOD HOLDINGS PARTNERS, LLC

BC551002

PLAINTIFF’S MOTION FOR COST OF PROOF SANCTIONS – Hearing: April 23, 2018

Plaintiff filed this action against Brentwood Holdings Partners, LLC on July 9, 2014. Brentwood Holdings Partner appeared in this case for the first time on April 23, 2015 by filing a Motion To Strike Potions of the Complaint. That motion was subsequently granted. Brentwood filed its Answer in this case on July 2, 2015. On October 23, 2015, Plaintiff served its First Set of Requests For Admissions on Brentwood. Brentwood responded on January 24, 2016 with objections and denials of most of the requests. Plaintiff subsequently went to trial seeking in excess of $10 million in damages from Brentwood and Blue Jay Group, added as a defendant months after the Requests For Admission were served and had been responded to by Brentwood. After trial, the jury rendered a verdict for plaintiff in the amount of $450,000. Plaintiff now seeks to recover all of its costs of pre-trial and trial work it performed in establishing liability on the part of Brentwood and Blue Jay in the amount of $168,391.84 pursuant to the provisions of C.C.P. sec. 2033.420. Brentwood argues that its denial of the Requests For Admission were reasonable in light of the early stage of the litigation when it was served with the requests and that no requests were ever served on Blue Jay. The Court will deny the motion.

THE LAW

Sec. 2033.420provides in pertinent part that:

“(a) If a party fails to admit the . . .truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the . . .truth of that matter, the party requesting the admission may move for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making the proof, including reasonable attorneys fees.

(b) The court shall make this order unless it finds any of the following”

…

(2) The request was of no substantial importance;

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.”

A party may deny requests for admission if, “ . . . despite reasonable investigation, facts were not known that allowed the party to admit at the time of denial.” [Brooks v. Am. Broadcasting Co. (1986) 179 Cal.App.3d 500, 509-10.] Moreover, “a court may reasonably consider whether at the time the denial was made the party making the denial held a reasonably entertained belief that the party would prevail at trial.” [Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.]

In this case, the defendants contested any liability on their part based on claims of lack of notice of a dangerous condition on the property and on plaintiff’s own possible contributory negligence. While the court has no doubt that the requests for admission relating to the defendants negligence (Request nos. 1-5) were matters of substantial importance, it is also clear that the defendants held reasonable beliefs that they could prevail on those claims. As defendants point out in their Opposition, the evidence showed that the plaintiff had used the stairway in question hundreds of times before the day of the accident without any incidents. [Opposition at 6.] Moreover, plaintiff himself testified at deposition and trial that he could see the stairway on the night of the accident. [Ibid.] While plaintiff unquestionably rolled his ankle and fell on the night of the incident, causing his injuries, plaintiff was never able to explain what caused him to fall. [Ibid.] Accordingly, defendants’ belief that they had a basis for good faith contesting of their liability was fully warranted in the Court’s view at the time they responded to plaintiff’s requests for admission, and, indeed up to the time of trial. As for the more specific factual requests cited in plaintiff’s motion (nos. 6 through 117) plaintiff presented no evidence that any of the specific requests facts were found to be true by the jury. While it is true that the jury found the defendants, Brentwood and Blue Jay to be negligent, it is impossible to tell from the verdict form the parties agreed to which facts were determinative of that finding. Accordingly, there is no basis for the court to award costs for proof of any of the specific facts denied by defendant Brentwood in its responses. Moreover, at the time Brentwood made its denials, discovery had just commenced and Brentwood had not had a reasonable opportunity to engage in discovery from plaintiff and Ms. Marroquin, the only witnesses to the incident. Under these facts, the Court finds that Brentwood had a reasonable basis for its denials of plaintiff’s requests for admissions.

As for Blue Jay, the requests that are the subject of this motion were never served on that defendant. Indeed, Blue Jay was not added as a defendant and did not make its first appearance in this case until March 8, 2017, more than one year after Brentwood had responded to the plaintiff’s requests.

For all of these reasons, the motion for cost of proof under C.C.P. section 2033.420 is denied.

LESTER CAMACHO . BRENTWOOD HOLDINGS PARTNERS, LLC

BC551002

TENTATIVE DECISION RE: DEFENDANTS’ MOTION TO TAX COSTS – Hearing: April 23, 2018

In this matter, plaintiff recovered a judgment of $450,000 following a lengthy jury trial. Subsequently, plaintiff filed his costs bill seeking costs in the amount of $75,871.31. Prior to trial. Defendants made two C.C.P. sec. 998 offers to settle the case. The first in the amount of $525,000 was made on October 13, 2017, approximately three and one-half months before the trial began. That offer was rejected by plaintiff the same day. On November 20, 2017, defendants made a second 998 offer in the amount of $750,001, also rejected by the plaintiff the same day. Plaintiff also made two 998 offers to the defendants. The first was made to Brentwood Holdings Partners in the amount of $2,000,000. The second was made to the defendant, Blue Jay Group, in the amount of $4,000,000. Defendants now seek to tax costs against plaintiff in the amount of $53,406.21 on the ground that plaintiff should not be allowed to recover costs incurred after the 998 offers because their judgment did not exceed either. [See C.C.P. sec. 998(c)(1). In addition, defendants object to plaintiff’s claim for expert witness fees incurred after service of his 998 offers on the ground that plaintiff failed to secure a judgment exceeding either offer. [See, C.C.P. sec. 998(d).] Plaintiff opposes the motion principally on the ground that, in his view, neither of defendants’ offers were reasonable at the time made. The Court will grant the motion.

THE LAW

C.C.P. sec. 998(c)(1)provides that a plaintiff that does not accept a defendant’s 998 offer to settle and fails to obtain a judgment in excess of the offer, “. . .shall not recover his or her post-offer costs . . .” Here, plaintiff failed to secure a judgment exceeding either of the defendants’ offers. Those offers are presumed to be reasonable because the judgment for plaintiff was less than either of their offers. [Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App 4th 632, 548.] While plaintiff argues that the offers were unreasonable in light of his assessment of the evidence favoring his side of this case, it is clear to the Court that both offers were reasonable in light of the evidence available to both parties at the time the offers were made. As carefully explained in the defendants’ Reply Memorandum, at the time of the first 998 offer, plaintiff had taken information from his discovery of the defense experts that suggested serious questions about the plaintiff’s claimed injuries, especially at to future medical damages, future pain and suffering damages, and future earnings claims. [See, Defendants’ Reply Memorandum at 4-6.]

In light of that information, plaintiff was in a position to carefully assess the risk of going forward with a trial. Plaintiff chose to take that risk knowing that he faced the possibility that he might nor secure a recovery greater than either of the defendants’ 998 offers.

Plaintiff also argues that the defendants cannot tax costs incurred between the dates of the two offers because the second offer extinguished the first. [See, Plaintiff’s Opposition at 5.] However, this argument has been expressly rejected by the California Supreme Court in Martinez v. Brownco Constr. Co. (2013) 56 Cal.4th 1014, 1027. Accordingly, defendants are entitled to tax all costs incurred by plaintiff after the date of the first 998 offer on October 13, 2017.

For these reasons, the Court taxes plaintiff’s costs in the amount of 53,406.21. The Clerk will amend the judgment to add allowable costs in the amount of $22,465.10