Last month, the Second District Court of Appeal published a new decision addressing this issue. To find out what they decided, watch the video and read my one-paragraph case summary below.
New CA Civil Procedure Case
Vargas v. Gallizzi (2023) _ Cal.App.5th _ , 2023 WL 6781376: The Court of Appeal affirmed in part, and reversed in part, the trial court’s post-trial orders, following a jury trial in a personal injury case where the jury awarded plaintiffs $15,125 in damages. The trial court denied plaintiffs’ request for $350,000 in attorney fees and costs pursuant to Code of Civil Procedure section 2033.420 based on defendant’s failure to admit requests for admission regarding the medical records, a timeline of treatment, and causation, and awarded defendant $28,547.66 in costs pursuant to Code of Civil Procedure section 998. The Court of Appeal disagreed, concluding that the trial court erred by denying plaintiffs’ motion for expenses pursuant to section 2033.420. Code of Civil Procedure, section 2033.420(a), provides expenses shall be awarded if the party requesting the admission “thereafter proves the genuineness of that document or the truth of that matter” and the statute contains no requirement the proof be made at trial. During a pretrial hearing the trial court ruled the medical records would be considered business records and plaintiffs therefore proved the matter. The trial court erred by finding plaintiffs were precluded from receiving cost-of-proof expenses because defendant, after the pre-trial ruling, had not disputed the medical records’ status as business records at trial. Having found plaintiffs proved the medical records were business records, section 2033.420 required expenses be awarded unless one of the exceptions was established. The Court of Appeal concluded that none were. Although plaintiffs' counsel had failed to establish the medical records were business records in a prior trial, defendant had no reasonably held good faith belief she could prevail on the merits of the business records issue. The Court of Appeal affirmed the trial court’s award of costs to defendant section 998. The case was remanded for the trial court to determine the amount to which plaintiffs were entitled for proving the medical records were business records. (C.A. 2nd, October 13, 2023.)
I still take a few select civil cases where I represent plaintiffs or defendants in business, insurance bad faith, personal injury, real property and wrongful death actions. Using my experience as a California civil trial lawyer since 1980, and a member of the American Board of Trial Advocates since 1995, my goal is to get each client the best possible result. My clients get the benefit of big firm experience with small firm attention and reasonable rates. To discuss a potential case, email me at [email protected], or call me at (619) 990-4312.
I train attorneys to become excellent trial lawyers, and I train law firm associates to quickly become excellent attorneys. To start working with me email me at [email protected] or call me at (619) 990-4312.
Trial Alchemy™ Podcast
In my Trial Alchemy™ Podcast I interview outstanding plaintiff and defense lawyers, who are members of the American Board of Trial Advocates (ABOTA), about what works and what doesn't work in civil jury trials. This is a great way for less experienced lawyers to learn from the masters to become excellent trial lawyers. To hear the most recent podcast episode, click here.
I help attorneys and their clients by serving as a mediator, arbitrator and referee at ADR Services, Inc., handling cases in the areas of business, commercial, employment, insurance bad faith, insurance coverage, landlord-tenant (commercial and residential), legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule an ADR matter with me, contact my case managers at ADR services, Haward Cho, [email protected], (213) 683-1600, or Rachael Boughan, [email protected], (619) 233-1323.
Until my next blog post, stay safe and healthy.
Monty A. McIntyre, Esq.
Civil Trial Attorney
Master Lawyer Mentoring™
Podcaster: Trial Alchemy™
Publisher: California Case Summaries™
CA Civil Trial Attorney Since 1980
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312. Email: [email protected]