Case Number: BC577115 Hearing Date: December 11, 2018 Dept: I

LOEWEN V. OCHI

BC577115

Decision – Plaintiff’s Motion For Judgment Notwithstanding the Verdict

Plaintiff has moved for a judgment notwithstanding the verdict based on an unsupported summary of the evidence that conflicts with the Defendant’s and the Court’s recollection of the trial testimony. Plaintiff submitted no trial transcripts supporting her version of the testimony she argues justifies a JNOV. The defendant submitted his counsel’s Declaration setting froth the key evidence conflicting with plaintiff’s summary. Moreover, as the defendant notes (Opposition at 4-5), the Court is required to view the evidence in the light most favorable to sustaining the verdict. [Flanagan v. Flanagan (2002) 27 Cal.4th 766,769.] Here, the plaintiff has failed to demonstrate by any competent evidence that the jury’s unanimous verdict was not supported by substantial evidence. Accordingly, the motion is denied.

Defendant’s Objections to Plaintiff’s Reply Memorandum are sustained in full.

Decision – Plaintiff’s Motion For A New Trial

Plaintiff has moved for a new trail based on three claimed errors in the trial proceedings: 1) alleged prejudice from comments made by certain prospective jurors during voir dire relating to the fact that plaintiff’s attorney was her husband; 2) claimed surprise by certain testimony given by plaintiff’s expert, Dr. Tso; and 3) the Court’s order excluding evidence relating to plaintiff’s breach of contract action which had been dismissed per prior court order. None of these contentions has merit, so the motion will be denied.

Alleged Juror Misconduct

Plaintiff argues that since certain prospective jurors questioned why she was represented by her husband, and certain other jurors agreed that raised issues about the validity of plaintiff’s case. However, as noted by the defendant in his Opposition (Memorandum 3-6), all of the prospective jurors who made such comments were excused. Moreover, plaintiff’s counsel continued to ask other prospective jurors if that issue could prevent their being fair and impartial and all jurors ultimately seated on the jury agreed they could be fair and impartial. Moreover, plaintiff never requested any admonition from the Court to remaining jurors, any instructions to the jury concerning the relationship between plaintiff and her attorney, or any motion to dismiss the entire panel as a result of alleged possible prejudice.

Plaintiff has not and cannot show that the jury was actually prejudiced by any of the comments about which plaintiff now complains for the first time. As defendant notes in his Opposition, any claimed error regarding the comments made by excused prospective jurors was waived by plaintiff by her failure to raise the issue at the time of the comments or at any time during the trial. [People v. Ramos (2004) 34 Cal.4th 494.

Claim of Surprise

Plaintiff argues that a new trail is warranted because she was surprised her own expert’s alleged change in testimony from what he had said at his deposition. The alleged testimony dealt with a telephone conversation that the defendant had with Dr. Tso after treating plaintiff in which Dr. Tso purportedly told defendant that he should refund plaintiff’s money for the treatment because “she had a good case.” However, as defendant notes in his Opposition (Memorandum at 7-8), Dr. Tso did not testify at his deposition that defendant should refund plaintiff’s money or that she had a good case. Nor was his trial testimony inconsistent with his deposition testimony. Moreover, even if this alleged inconsistency had occurred, it relates to a collateral matter and plaintiff has failed to establish any prejudice as a result. Indeed, plaintiff has presented no evidence that the alleged inconsistency had a material effect on her case.

Exclusion of Evidence

Plaintiff argues that the Court’s order excluding certain evidence relating to promises defendant allegedly made to her regarding treatment were not true. Prior to trial and its assignment to the trial court, plaintiff’s cause of action for breach of contract was sustained without leave to amend. [Defendant’s Opposition, Ex. F.] Plaintiff filed in limine Motion No. 5 with the trial court seeking to exclude all evidence relating to the alleged breach of contract. [Id. at ex. G.] The Court granted that motion after plaintiff stipulated to it. [Ibid., at Ex. B to Motion In Limine No. 5.] Plaintiff argues that the excluded evidence would have been relevant to defendant’s credibility. However, plaintiff has shown no prejudice as a result of the exclusion of the proposed testimony.

Conclusion

For all the reasons stated above, the plaintiff’s motion for a new trial is denied.

Loewen v. Ochi

BC577115

Decision Re: Defendant’s Motion to Tax costs

This was tried to a jury resulting in a verdict in favor of the defendant, Ochi.. Ochi filed Memorandum of Costs seeking $15,236.40 in recoverable costs. Loewen has moved to tax that sum in the amount of $9,365.50 on the ground that that sum is related to expert costs and not recoverable because Loewen alleges that the 998 offer made by the defendant was not made in good faith. Loewen also challenges the claimed cost of $1,600.84 for electronic service on the ground that there is no evidence that other methods could not have been used. Ochi reduced his claimed costs in his Opposition by eliminating the request for electronic service fees of $1,600.84 nd lowering the expert witness fee to $6,250 from $8,387.50.

Ochi made a C.C.P. section 998 offer to the plaintiff in the amount of $30,000 on September 28, 2018. Plaintiff rejected that offer. Plaintiff has failed to present any evidence that the offer was made in bad faith. As Ochi points out in his Opposition, even modest offers can be reasonable when the party making it has a reasonable perception that he is likely to prevail. [Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App3d 704, 710-711.] Moreover, the fact that Ochi prevailed is prima facie evidence of the reasonableness of his offer. [Sanantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 117.] Here, Ochi prevailed. The Court finds that Ochi’s 998 offer was made in good faith and Loewen has failed to meet her burden of showing otherwise.

In light of Ochi’s reduction in his costs request, the Court awards costs to Ochi totaling $11,498.06. The Clerk will amend the judgment in favor of Ochi to add that amount as costs.