Case Number: BC638802 Hearing Date: June 28, 2018 Dept: I

Defendant’s Motion for a New Trial

Defendant, The Bay Clubs Company (“Bay Clubs”), seeks a new trial or a remittitur of damages based on the arguments that the Court incorrectly allowed the plaintiff’s expert, Phillip Rosescu, to testify to alleged violations by the defendant of the Cal. Building Code, and that the jury’s award of non-economic damages was excessive. The Court will deny the motion.

The Facts

This personal injury case was tried to a jury resulting in a verdict for the plaintiff in the amount of $477,073.64 on May 14, 2018. The jury’s verdict was based in part on a finding that the Defendant had violated the California Building Code, (Defendant’s Motion, Exh. A at 2.) and that violation was a substantial factor in causing plaintiff’s injuries. The finding of Building Code violation was necessary in order for the plaintiff to prevail because she had signed a Release in favor of the Bay Clubs that permitted liability only for gross negligence or negligence per se. [Defendant’s Memorandum at 6-7.] Prior to trial, defendant filed a Motion In Limine to exclude the plaintiff’s expert, Phillip Rosescu, from testifying regarding the applicability of the California Building Code on the grounds that he was not qualified to render opinions regarding the applicability of or the alleged violation of the California Building Code and certain electrical codes to this case. The Court denied that motion.

At trial, Mr. Rosescu testified that the defendant’s placement of a wireway, a box containing electrical wires, in front of the exercise machines located at defendant’s business violated the California Building Code. [See, Plaintiff’s Opposition, Exh. 2 at 22-25.] While defendant vigorously contested that opinion at trial, the jury obviously accepted Rosescu’s testimony.

The challenge to Mr. Rosescu’s qualifications is based on certain deposition testimony that he gave before trial acknowledging that most of his professional career has been as an expert witness, and that he has little experience working as a civil engineer. However, after reviewing Mr. Rosescu’s resume and work history, the Court concluded that the plaintiff could present his testimony to the jury. Mr. Rosescu has both Bachelor of and Masters of Science degrees in civil engineering. At the time of trial, Mr. Rosescu had more than 9 years experience working as a Forensic Engineer at Wexco International, providing expert witness services in the field of civil engineering. [See, Plaintiff’s Oppoistion, Exh.7.]

The jury’s verdict awarded Ziegler $93,510.68 in past economic damages and $109,725 in future economic damages. The verdict also included awards of past non-economic damage of $161,850 and future non-economic damages of $271,012.50. Defendant’s Motion seeks a new trial or remittitur as to damages based on the argument that “The non-economic damages award was well out of proportion with the actual losses proven by Plaintiff at trial.” [Defendant’s Motion at 14.]

Discussion

The court’s decision to deny defendant’s Motion In Limine regarding the testimony of Rosescu was correct, and clearly not an abuse of discretion. Accordingly, there was no error in permitting Rosescu to testify at trial. Rosescu’s testimony, when considered in its entirety, fully supported the jury’s decision. [See, Plaintiff’s Opposition, Exh. 2.] Accordingly, there is no basis for a new trial on the grounds that Rosescu was permitted to testify as to the alleged Building Code violations.

As for the argument that the jury’s award of non-economic damages was excessive, the Court notes that Bay Clubs neither submits any evidence nor discusses any evidence admitted at trial to support its claim of non-proportionality. The Court is aware of no case law that would support a new trial based soley on a claim of a lack of proportionality of the non-economic damages to the economic damages. In any event, the Court does not believe that the jury’s award of non-economic damages was disproportionate to the economic damages the jury awarded.

For all ofthese reasons, the Bay Clubs Motion for a New trial is denied.

Defendant’s Motion to Tax Costs

Defendant, The Bay Clubs Company (“Bay Clubs”) seeks to tax two items of costs, expert witness fees and prejudgment interest, from Plaintiff’s Memorandum of Costs. Plaintiff, Patricia Ziegler (“Ziegler”), was the prevailing party after a jury awarded her a net recovery of $477,073.63 on her personal injury claim. Accordingly, Ziegler filed a Memorandum of Costs seeking a total of $53,769.45, including $18,307 for expert witness fees and $29,670.06 for prejudgment interest. Ziegler argues that the jury’s award exceeds both of her C.C.P. 998 offers when prejudgment costs are added to her verdict, so she is entitled to receive all of her post offer expert witness fees and prejudgment interest. Bay Clubs argues that the jury’s award does not exceed the second 998 offer made by Ziegler, so she is not entitled to recover either expert witness fees or prejudgment interest. The Court will grant Bay Club’s motion.

The Facts

Ziegler was injured when she tripped over a piece of equipment in the Bay Club’s gym where she was a member. Prior to trial, Ziegler made two 998 offers to settle this case. The first, made on September 11, 2017 was for $200,000. The second, made on March 14, 2018, was for $495,000. On April 26, 2018, the jury rendered a verdict setting Ziegler’s total damages at $636,098.18, but found Ziegler to 25% responsible for her injuries. Accordingly, judgment was entered in favor of Ziegler for $477,073.64. Ziegler timely filed her Memorandum of Costs on May 8, 2016.

Discussion

Bay Clubs argues that Ziegler is not entitled to recover either expert witness fees or prejudgment interest because the jury’s verdict did not exceed her second 998 offer. [See, Motion at 2.] Ziegler argues that the verdict obviously exceeds her first offer and, when recoverable costs are added to the verdict, exceed the second offer as well. [See, Opposition at 2.]

Bay Clubs relies primarily on the Second Appellate District’s opinion Palmer v. Schindler (2003) 108 Cal.App.4th 154, holding that a second 998 offer, even though procedurally improper extinguished the first offer and that a judgment that does not exceed the second offer precludes the prevailing party from recovering costs and prejudgment interest. Bay Clubs also relies Wilson v. Wal-Mart Stores (1999) 72 Cal.App.4th 382 for the same conclusion and for the further proposition that it is inappropriate to add prejudgment interest to a verdict for purposes of determining whether the judgment exceeds a 998 offer. [Motion at 6-7.] Ziegler, on the other hand, , relies on the Supreme Court’s recent decision in Martinez v. Brownco Construction Company, Inc. (2013) 56 Cal.4th 1014, which holds that application of the so-called last offer rule is inappropriate where the offering party’s recovery exceeds both 998 offers. Moreover, the Supreme Court expressly acknowledged that the calculation of prejudgment interest under Civil Code section 3291 is made by comparing the judgment to the date of the “first offer” under C.C.P. section 998. [Martinez, supra, at fn 8.] Here, Ziegler’s first offer of $200,000 was exceeded by the net verdict she received. Accordingly, Ziegler argues that she is entitled to recover prejudgment interest under Civil Code section 3291 from the date of the first offer, September11, 2017 through judgment.

The difficulty with Ziegler’s position is that it conflicts directly with the holding in Wilson v. Wal-Mart Stores, supra. In Wilson, the court established a “bright line rule” that a second 998 offer is controlling for purposes of determining whether a judgment is more favorable than a 998 offer. As the Wilson court noted:

In addition to the above considerations, the legislative purpose of section 998 is generally better served by a bright line rule in which the parties know that any judgment will be measured against a single valid statutory offer-i.e., the statutory offer most recently rejected-regardless of offers made earlier in the litigation. (See Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal. 3d 266, 272. [Wilson, supra at 391.]

Despite Ziegler’s argument to the contrary, nothing in the Supreme Court’s Martinez v. Brownco Construction Co., requires a different result. As Bay Clubs notes in its reply papers (Reply at 3), the Supreme Court assumed the propriety of the last-offer rule as set forth in the Distefano and in Wilson cases.

Ziegler’s net verdict was less than her second 998 offer. Nonetheless, she argues that, when pre-judgment interest is added, the judgment exceeds her second 998 offer. The difficulty with that argument is that the Wilson court also held that prejudgment interest cannot be added to the amount of the verdict for purposes of determining whether a judgment exceeds the effective 998 offer. [Wilson, supra at 393-94.] Martinez did not overrule that holding.

For the reasons stated above, Bay Clubs motion to tax costs is granted. The plaintiff’s costs are taxed in the amount of $47,977.06. The clerk is ordered to reduce the allowable costs by that amount and enter judgment for Ziegler awarding net costs in the amount of $5,792.39, resulting in a total judgment of $482,073.63.