Plaintiffs' Notice of Motion And Motion To Tax Costs Submitted By Defendant Thomas Lee, Md; Declaration of Jeffrey MilmanMotionCal. Super. - 4th Dist.April 2, 201510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey A. Milman, Esq., SBN 99072 HODES MILMAN LIEBECK, LLP 9210 Irvine Center Drive Irvine, California 92618 (949) 640-8222 Fax: (949) 336-8114 Attorneys for Plaintiffs, MARCELO FRANZETTI and KRISTEN FRANZETTI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MARCELO FRANZETTI and KRISTEN FRANZETTI, Case No.: 30-2015-00780697) ) ) Hon. Thierry Patrick Colaw Plaintiffs, ) Department CX105 ) \2 ) PLAINTIFFS’ NOTICE OF MOTION AND ) MOTION TO TAX COSTS SUBMITTED BY] PLACENTIA LINDA HOSPITAL; BRYAN ) DEFENDANT THOMAS H. LEE, M.D.; C. HOYNAK, M.D.; BRIAN DOYLE, M.D.; ) DECLARATION OF JEFFREY A. MILMAN and DOES 1 through 100, Inclusive, ) ) Date: December 15,2017 ) Time: 10:30 a.m. ) ) ) ) ) Dept.: CX105 Defendants. Action filed: 4/2/2015 PLEASE TAKE NOTICE that on December 15, 2017 at 10:30 a.m. or as soon thereafter as the matter may be heard in Department CX105 of the above-entitled Court, located at 751 W. Santa Ana Blvd., Santa Ana, CA 92701, Plaintiffs MARCELO FRANZETTI and KRISTEN FRANZETTI will and hereby do move for an order taxing the costs claimed by Defendant THOMAS H. LEE, M.D. per his Memorandum of Costs. This Motion is brought pursuant to Code of Civil Procedure section 1033.5 and California Rules of Court Rule 3.1700. 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion is based on this Notice and following Memorandum of Points and Authorities, the Declaration of Jeffrey A. Milman, Esq. and all exhibits thereto, all papers, pleadings and records onfile herein, and upon such further evidence as may be considered by the Court at or before the hearing ofthis Motion. DATED: NOVEMBER 9, 2017 HODES MILMAN LIEBECK, LLP By: ATTORNEY FOR PL MARCELO FRANZ 1 AND KRISTEN FRANZETTI JEFFREY A. MI P\ESQ. IFRS, 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L FACTUAL AND PROCEDURAL BACKGROUND Thisis a medical negligence action involving treatment PlaintiffMARCELO FRANZETTI underwent at Placentia Linda Hospital, which included the interpretation of a CT scan by two ofthe defendants herein, including THOMAS H. LEE, M.D.Trial herein took place in September and October 2017 and resulted in a defense verdict. Thereafter, on October 23, 2017, Defendant THOMAS H. LEE, M.D. served a Memorandum of Costs on Plaintiff via U.S. Mail wherein said Defendant seeks to recover a variety of costs, including expert fees pursuant to Code of Civil Procedure section 998. (See Memorandum of Costsfiled herein by Defendant Lee.) As such, Plaintiffs present the instant Motion. IL ARGUMENT A. General Rules on Motions to Tax. The right to recover costs is entirely statutory. (Davis v. K-Go-T.V., Inc. (1998) 17 Cal.4th 436, 439.) The procedures for claiming and challenging costs are governed by the Judicial Council Rules. (Cal. Rules of Court, rule 3.1700.) Provided the statutory requirements are met, the prevailing party in an action is entitled as a matter ofright to recover costs of suit. (Code ofCiv. Proc. § 1032(b).) The prevailing party is only entitled to recover “allowable” cost items “reasonably necessary” to the conductofthe litigation, and reasonable in amount. (Code ofCiv. Proc. § 1033.5(c).) Costs “merely convenient or beneficial” to a party’s preparation are disallowed. (/bid.) Thus, even costs “allowable as a matter of right” may be disallowed if they are not found “reasonably necessary[,]” and the Court may further reduce any allowable cost item to an amount that is reasonable. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Plaintiff only has a burden on this Motion as to costs claimed that are proper on their face. (Ladas v. California State Auto Ass'n (1993) 19 Cal.App.4th 761, 774-76.) Defendant has 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the burden ofproofto demonstrate the reasonability and necessity of any cost item objected to. (Ibid) Defendant’s claimed costs items will be addressed serially below. Code ofCivil Procedure section 1033.5 provides that a prevailing party may recover certain statutorily-enumerated costs. Claimed costs must be both reasonable in amount, and reasonably necessary to the conduct ofthe litigation. (Code ofCiv. Proc. § 1033.5(c).) Costs “merely convenient or beneficial” to preparation ofthe litigation are disallowed. (Ibid.; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132-33.) Even costs “allowable as a matter of right” may be disallowed if the Court determines they were not “reasonably necessary.” Likewise, the Court has the powerto reduce the amount of any cost item to an amount that is reasonable. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245-intent and effect of section 1033.5 is to authorize the Court to strike any cost incurred unnecessarily.) B. Costs Objected To The Motion is brought pursuant to Code of Civil Procedure section 1033.5 and 3.1700(b) ofthe California Rules of Court on the grounds that the following items of costs claimed in Defendant’s Memorandum of costs were unnecessary, excessive, and/or unrecoverable: Item No. 4: Deposition costs. Defendant's cost memorandum seeks reimbursement of $11,204.81 for "deposition costs." However, some ofthe deposition costs that Defendant seeks to recover are improper. Specifically, the $430.75 cost for “taking” Dr. Pal’s is improper to the extent it includes Dr. Pal’s “customary hourly or daily fees” that must be paid under Code of Civil Procedure section 2034.430. Pursuant to Code of Civil procedure section 1033.5(a)(7), the prevailing party in tort litigation may recoveras costs the "ordinary witness fees" that were incurred in deposing a witness ($35 per day plus mileage pursuant to Government Code§ 68093 and Code of Civil Procedure § 1986.5). However, “ordinary witness fees do not include a treating physician's reasonable and customary hourly or daily fees which must be paid under [Code of Civil Procedure] section 2034, subdivision (i)(2) [now§ 2034.430] in order to take the deposition of 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 the treating physician." (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 593.) Here, Dr. Pal was one ofPlaintiff Marcelo Franzetti’s treating healthcare providers and he was notlisted as a retained expert by any party to this case. (Declaration of Jeffrey A. Milman (“Milman Dec.”) § 2.) Thus, to the extent the $430.75 paid by Defendant Lee to “take” Dr. Pal’s deposition includes Dr. Pal’s customary hourly or daily fee pursuant to Code of Civil Procedure section 2034.430, those amounts are not recoverable costs under Code of Civil Procedure section 1033.5. The only amount that Defendant can recover for “taking” Dr. Pal’s deposition is the ordinary witness fee of $35 plus mileage. For this reason, Plaintiff asks that the court strike any witness fees for Dr. Pal above and beyond the ordinary $35 fee plus mileage. Item No. 8(b): Expert fees (per Code of Civil Procedure section 998.) Defendant seeks reimbursement of $35,087.00 in expert fees pursuant to Code of Civil Procedure section 998. Defendant served section 998 offers on the Plaintiffs herein on March 25, 2016, both ofwhich offered a waiver of costs and a covenant not to sue Plaintiffs for malicious prosecution in exchange for dismissal ofthe case. (See Exhibits 1 and 2 to Milman Dec.) Plaintiffs contend that Defendant is not entitled to the requested expert fees under Code of Civil Procedure section 998 for several reasons. Namely, Plaintiffs contend that the March 25, 2016 section 998 offers were invalid, as they were not made in good faith. An ineffective 998 offer will not work to shift costs, as further discussed below. Thus, this cost item should be taxed in its entirety. 1. Defendant’s 998 Offer was Not Made in Good Faith and Therefore Defendant Cannot Shift 998 Penalty Costs to Plaintiffs The mandatory and discretionary penalties associated with 998 offers require that 1) a valid, unrevoked, and unaccepted offer pursuant to Code of Civil Procedure section 998 was made and 2) the receiving party failed to achieve a result more favorable than the amountset forth in the offer. (See Code of Civ. Proc. § 998.) The mandatory penalties associated with section 998 include Defendant's post-offer costs. The Court may also orderthe Plaintiff to pay a 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable sum to cover postoffer costs of the services of the Defendant's expert witnesses. (Code of Civ. Proc. § 998(c); Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55.) Section 998 fosterssettlement by providing "a financial incentive to make reasonable settlement offers." (Bank ofSan Pedro v. Sup. Ct. (Goodstein) (1992) 3 Cal.4th 797, 804.) To effect the purpose ofthe statute, the penalties associated with section 998 are only triggered where a 998 offer is made in good faith; that is, realistically reasonable under the circumstances ofthe particular case. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1112.) A "token" or "nominal" offer does not satisfy the good faith requirement and therefore cannot be the basis for any award of expert witness fees and costs. (Wear v. Calderon (1981) 121Cal.App.3d818, 821.) "The offer must carry with it some reasonable prospect of acceptance. One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purposes oflater recovering large expert witness fees." (People ex rel. Lockyer v. Fremon Gen. Corp. (2001) 89 Cal.App.4th 1260, 1271.) A nominal offer will not - satisfy the good faith requirement, unless as ofthe time ofthe offerit is "absolutely clear that no reasonable possibility exists that the defendant will be held liable." (Wear, supra, 212 Cal.App.4th at p. 821.) A reasonable section 998 settlement offer is one that “represents a reasonable prediction of the amount of money,ifany, [the offeror] would have to pay [the offeree] following a trial, discounted by an appropriate factor for receipt ofmoney by [the offeree] before trial.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) The reasonableness of a section 998 settlement offeris evaluated in light of "what the offeree knows or does not know at the time the offer is made," along with what the offeror knew or should have known about facts bearing on the offer's reasonableness. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 119.) 111 111 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendant’s 998 Offer was a Zero Dollar Offer with No Real Value, Despite Its Reference to a Mutual Cost Waiver Generally, defense costs are not considered in determining whether a 998 offer is made in goodfaith; if there is a reasonable possibility ofliability, defendants cannot justify a settlement solely on the basis of anticipated defense costs. (Weil & Brown, California Practice Guide: Civ. Proc. Before Trial (2016 ed.) § 12:725.) However, where a defendant's offer includes a waiver of costs, the court may consider that the waiver adds significant value to the amount ofthe offer. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.) Here, while Defendant's offers did include cost waivers, Defendant's costs as of the date of his 998 offers were de minimis when compared to his potential exposure, which consisted of $250,000 for each Plaintiff in general damages (due to the MICRA cap) plus special damages. Namely, according to Defendant’s section 998 offers, he had incurred a total of approximately $5,000 in costs as of the date of the offers. (See Exhibits 1 and 2.) Thus, even when considering the cost waiver, Defendant's offers were essentially valueless, no-risk offers made solely for the prohibited purpose oftriggering 998 penalties. (Lockyer, supra, 89 Cal.App.4th at p. 1271.) “As a generalrule, the reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt ofmoney by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.” (Elrod, supra, 195 Cal.App.3d at p. 699.) “If the offer is found reasonable by the first test, it must then satisfy a second test: whether defendant's information was known or reasonably should have been known to plaintiff. This second test is necessary because the section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree has no reason to know the offeris reasonable, then the offeree cannot be expected to accept the offer. (/bid.) 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As of March 25, 2016, the day Defendant Lee’s section 998 offers were served herein, Defendant claimed to have incurred approximately $5,000.00 in costs. (See Exhibits 1 and 2.) However, apart from that small bit of information, Plaintiff cannot definitively say what the state of Defendant’s knowledge regarding the value of the case was at the time the section 998 offers were served. What Plaintiffs did know at the time Defendant Lee served his section 998 offers onl March 25, 2016 was that Plaintiffs had experts supportive of all aspects of their case. However, experts had not yet been designated, no expert depositions had taken place, only the parties had been deposed, and neither Defendant Lee nor Defendant Jackson had filed a Motion for Summary Judgment. Thus, as of March 25, 2016, Defendant Lee could not have been aware of Plaintiffs’ experts’ opinions beyond what may have been hinted at in contentions listed in response to written discovery, and Plaintiff was not aware of, and could not have reasonably known,the details of Defendant Lee’s experts’ opinions. (Milman Dec. q 3.) In light ofthe fact that this case was essentially in its infancy at the time Defendant Lee served his section 998 offers, it is Plaintiffs’ contention that Defendant Lee’s offers were unreasonable under the circumstances ofthe case at the time the offers were made. (Milman Dec. 9 4.) Defendant could not have had any expectation that Plaintiffs would accept of waiver of costs with a value of approximately $5,000.00 in exchange for dismissal oftheir case. No reasonable Plaintiff would have taken the risk of entering judgment for the Defendant for that small amount in light of the information known at the time ofthe offer, including the possible damages. Ultimately, the $35,087.00 in expert feeslisted in Defendant’s Memorandum of Costs should be stricken as a whole, as Defendant’s section 998 offer was not made in good faith. 3. Defendantis Not Entitled to Reimbursement of Pre-Offer Expert Fees In the eventthat this Court does not strike Defendant’s requested expert fees in their entirety, Plaintiffs request that this Court reduce Defendant’srequest for reimbursement of expert fees to the extent they include pre-offer expert fees. Code of Civil Procedure section 998(c)(1) allows a Defendant to recover “a reasonable sum to cover postoffer costs of the 8 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 services of expert witnesses....” Here, Defendant Lee’s Memorandum of Costs does not state whether his claimed expert fees are pre or post offer. Thus, Plaintiff respectfully requests that the Court require Defendant Lee to provide documentation ofhis claimed expert fees, determine if any ofthose fees were incurred prior to the date Defendant served his section 998 offers, and reduce Defendant’s cost award by the amount of any pre-offer expert fees included in the claimed $35,087.00 III. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court tax Defendant Lee’s Memorandum ofcosts in the amount of$35,087.00 (consisting of all expert fees) plus Defendant’s cost for “taking” Dr. Pal’s deposition to the extent said cost includes Dr. Pal’s “customary hourly or daily fees” that must be paid under Code of Civil Procedure section 2034.430. In the eventthat the Court does not tax Defendant Lee’s requested expert fees in their entirety, Plaintiff requests that the Court require Defendant Lee to provide documentation ofhis claimed expert fees, determineifany ofthose fees were incurred prior to the date Defendant served his section 998 offers, and reduce Defendant’s cost award by the amount ofany pre-offer expert fees included in the claimed $35,087.00 DATED: NOVEMBER 9, 2017 HODES MILMAN LIEBECK, LLP By: JEFF .MILMAN, ESQ. ATTOR OR PLAINTIFFS, MARC FRANZETTI AND KRISTEN FRANZETTI 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JEFFREY A. MILMAN, ESQ. 1. I am an attorney at law duly licensed to practice before the courts ofthe State of California. I am a partnerin the law firm ofHodes Milman Liebeck, LLP, counsel of record for the Plaintiffsin this case. I make this declaration on my own personal knowledge and if called uponto testify as a witness I could and would competently testify to the truth of the matters set forth herein. 2. Dr. Pal was one of Plaintiff Marcelo Franzetti’s treating healthcare providers and he was not listed as a retained expert by any party to this case. 3. What Plaintiffs knew at the time Defendant Lee served his section 998 offers on March 25, 2016 was that Plaintiffs had experts supportive of all aspects oftheir case. However, experts had not yet been designated, no expert depositions had taken place, only the parties had been deposed, and neither Defendant Lee nor Defendant Jackson had filed a Motion for Summary Judgment. Thus, as of March 25, 2016, Defendant Lee could not have been aware of Plaintiffs’ experts’ opinions beyond what may have been hinted at in contentionslisted in response to written discovery, and Plaintiff was not aware of, and could not have reasonably known, the details of Defendant Lee’s experts’ opinions. 4. In light of the factthat this case was essentially in its infancy at the time Defendant Lee served his section 998 offers, it is Plaintiffs’ contention that Defendant Lee’s offers were unreasonable under the circumstances of the case at the time the offers were made. 5. Attached hereto as Exhibit 1 is a true and correct copy of Defendant THOMAS H. LEE, M.D.’s March 25, 2016, 2016 section 998 offer to Plaintiff, MARCELO FRANZETTI. 7. Attached hereto as Exhibit 2 is a true and correct copy ofDefendant THOMAS H. LEE, M.D.’s March 25, 2016 section 998 offer to Plaintiff, KRISTEN FRANZETTI. 111 111 111 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed this 9th day ofNovember, 2017 at Irvine, California. A JEFFREY A. MILMAN|JE Declarant 11 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN p t ennis K. Ames, Esq., State Bar# 81460 ah B. Maginot, Esq., State Bar# 258620 SUPERIOR COURT OFTHE STATE OF CALIFORNIA FORTHE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER CASE NO.: 30-2015-00780697-CU-MM-CJC DEPT. C21 JUDGEMARY FINGAL SCHULTE STATUTORY OFFERTO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, MARCELO FRANZETTI Trial Date: October 17, 2016 Complaint FiledApril 2, 2015 TO PLAINTIFF, MARCELO FRANZETTI, AND HIS ATTORNEYS OF RECORD: Defendant,THOMAS H. LEE, M.D., offers to Plaintiffto compromise his claim and lawsuit this offering Defendant in accordance with the following terms and conditions: 1) Theentry ofa Request for Dismissal, with prejudice, on behalfofPlaintiff in favor 2 FOLLETTE, JOHNSON, DE HAAS, LER & AMES 3 [2677 N. Main Street, Suite 901 Santa Ana, CA 92705 4 Telephone: (714) 558-7008 acsimile: (714) 972-0379 5 ttorneys for Defendant 6 OMAS H. LEE, M.D., Sued and Served Herein as Doe 2 7 8 9 10 11 CELO FRANZETTI and KRISTEN ) ZETTI, ) 12 ) Plaintiffs, ) 13 ) ) 14 ) LACENTIA LINDA HOSPITAL; BRYAN ) 15 iC. HOYNAK, M.D.; BRIAN DOYLE, M.D.; ) d DOES 1 through 100, Inclusive, ) 16 ) Defendants. ) 17 ) 18 19 20 21 22 ofthis offering Defendant; 23 24 25 Wi 26 V// 27 Wi STATUTORY OFFERTO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, MARCELO FRANZETTI O V 0 N N O& O w v A H W w N D N O R N O N N N N N R = om e m ® VW A&A U R B O N = S Vv ® QQ r E BD RO = oS 2) 3) 4) 5) In exchange for the executed and filed dismissal, Defendant, THOMAS H. LEE, M.D, will agree to a waiver of costs incurred to date and a covenant not to sue Plaintifffor malicious prosecution. Costs incurred to date in defense ofthis matter on behalf ofthis offering Defendanttotal approximately $5,000, and do not include costs which have yet to be expended on additional discovery, expert discovery, and trial preparation in the event this offer is not accepted by Plaintiff. This amountis provided to Plaintiffto aid him in making an informed decision as to whether or not to accept this offer, and is not to be construed as limiting the amount of costs for which this offering Defendant will seek to recover. See Valentino v. Elliot Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 700-701. Thatthis offer be accepted in writing priorto trial, or within 30 daysafter said offer has been served on Plaintiff, whichever occurs first. That said dismissal with prejudice as to this offering Defendant be filed with the Court of the above-entitled action in lieu of an entry of judgment in favor of Defendant, THOMAS H. LEE, M.D. That in the eventthis offer is not accepted by Plaintiff, and Plaintifffails to obtain a more favorable judgment from this Defendant, Plaintiff shall not recover his postoffer costs and shall pay the Defendant’s costs from the time ofthis offer. In addition, the Court, in its discretion, may require Plaintiff to pay this offering Defendant’s costs from the date the complaint was filed, as well as areasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of the parties, actually incurred and reasonably necessary in the preparation and trial ofthis case by this offering Defendant. 2 STATUTORY OFFERTO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, MARCELO FRANZETTI O O 0 0 N N O N W n H W N e P - p b be mb k pe md fe ed em t e d p d N N N N n h Ww W N N = O o 1 19 20 21 22 23 24 25 26 27 28 [> ] 6) That in the event this offer is not accepted by Plaintiff, and Plaintiff fails to obtain a more favorablejudgment, the costs under Section 998 from the time ofthis offer shall be deducted from any damages awarded in favor of Plaintiff, by way of settlement, on behalf of Defendant in this action. If the costs awarded underthis section exceed the amount ofdamages awarded to Plaintiff, the net amountshall be awarded to this Defendant andjudgmentshall be entered accordingly. DATED: March 25, 2016 LA FOLLETTE, JOHNSON, DE HAAS, FESLER& AMES ‘Attommeys for Defendant THOMAS H. LEE, M.D. ACCEPTANCE OF OFFER Plaintiff, MARCELO FRANZETT], in the above-entitled action, hereby accepts the offer ofjudgment as stated above by Defendant, THOMAS H. LEE, M.D. ated: Jeffrey A. Milman, Esq HODES MILMAN LIBBECK, LLP Attorneys for Plaintiffs, MARCELO FRANZETTI and KRISTEN FRANZETTI 3 STATUTORY OFFERTO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, MARCELO FRANZETTI 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 PROOF OF SERVICE (C.C.P. §1013(a) and §2015.5) STATE OF CALIFORNIA OUNTY OF ORANGE ) [1] [X] [1] Method of Service: By Personal Service [ 1] By Facsimile By Mail [ ] ByE-mail/Electronic Trans. By Overnight Delivery I, am employed in the County ofOrange, State ofCalifornia. I am overthe age ofeighteen ears and not a party to the within action. I am employed with the law offices of La Follette, ohnson, De Haas, Fesler & Ames, 2677 N. Main Street, Suite 901, Santa Ana, California 92705. On March 25, 2016, I served the within document entitled STATUTORY OFFER TO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO LAINTIFF, MARCELO FRANZETTI on all interested parties in this action by placing [ ] the original [X] a true copy thereof, enclosed in a sealed envelope addressed as follows: [X] [] [1] [1] [] SEE ATTACHED SERVICE LIST MAIL - I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing, Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana, Californiain the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day after date ofdeposit for mailing an affidavit. BYPERSONAL SERVICE - Such envelope(s) were delivered by hand to the office(s) of the addressees). VIA FACSIMILE - I transmitted to the above-named person(s), at the FAX number(s) listed above,the above-nameddocument, pursuantto Rule 2008. The facsimilemachinethat I used complies with Rule 2003(3) and no error was reported. BY EMAIL OR ELECTRONIC TRANSMISSION. Based on a court order or an agreement ofthe parties to accept service by email or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. STATE - I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. FEDERAL - I declare that I am employed in the office ofamember ofthe bar ofthis Court at whose direction the service was made. Executed on March 25, 2016, at Sagta Ana, California. AY.a ¥ Amber Brantner 1 PROOFOF SERVICE P o SERVICE LIST Marcelo Franzetti, et al. V, Placentia Linda Hospital, et al. Court - OCSC - Central Case No.: 30-2015-00780697-CU-MM-CJC Our File No.: 903.38125 DKA/ZBM y Milman, Esq. ODES MILMAN LIEBECK, LLP 9210 Irvine Center Drive Irvine, California 92618 949/640-8222 949/640-8294 - Facsimile 0 0 N N O& O u n A W N p t p e e d p e n d p e d Ww W N N = O o p t > cho Cucamonga, California 91730-3827 909-989-3200 909-697-2182 - Facsimile p t p d p d pe t p t O O 0 0 N N A W n N N 2 I B R N R V I R B 2 PROOF OFSERVICE - ennis K. Ames, Esq., State Bar# 81460 B. Maginot, Esq., State Bar# 258620 2 [LA FOLLETTE, JOHNSON, DE HAAS, SLER& AMES 3 [2677 N. Main Street, Suite 901 Santa Ana, CA 92705 4 Telephone: (714) 558-7008 acsimile: (714) 972-0379 5 ttorneys for Defendant 6 (THOMAS H. LEE, M.D., Sued and Served Herein as Doe 2 7 8 SUPERIOR COURT OFTHE STATE OF CALIFORNIA 9 FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER 10 11 CELO FRANZETTI and KRISTEN ) CASE NO.: 30-2015-00780697-CU-MM-CJC ZETTI, ) DEPT. C21 12 ) JUDGE MARY FINGAL SCHULTE Plaintiffs, ) 13 ) STATUTORY OFFERTO ) COMPROMISE PURSUANT TO 14 ) CODE OF CIVIL PROCEDURE PLACENTIA LINDA HOSPITAL; BRYAN ) SECTION 998 TO PLAINTIFF, 15 [C. HOYNAK, M.D.; BRIAN DOYLE, M.D,; ) KRISTEN FRANZETTI and DOES 1 through 100, Inclusive, ) 16 ) Trial Date: October 17, 2016 Defendants. J Complaint FiledApril 2, 2015 17 18 TO PLAINTIFF, KRISTEN FRANZETTI, AND HIS ATTORNEYS OF RECORD: 19 Defendant,THOMAS H. LEE, M.D., offers to Plaintiffto compromiseherclaim and 20 [lawsuit against this offering Defendant in accordance with the following terms and conditions: 21 1) The entry ofa Request for Dismissal, with prejudice, on behalfofPlaintiff in favor 22 ofthis offering Defendant; 23 (i 24 i 25 Wi 26 Wil 27 (1 28 PLAINTIFF, KRISTEN FRANZETTI | STATUTORY OFFER TO COMPROMISEPURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO - O W 0 3 O N W n A h W W N N = p- t p t e d p a Ww W N N = O o S B R 8 % » 3 a & = 7 vi / 1! i" N N w h A N N 8 3 RK 2) 3) 4) 5) In exchange for the executed and filed dismissal, Defendant, THOMAS H. LEE, M.D., will agree to a waiver of costs incurred to date and a covenant not to sue Plaintifffor malicious prosecution. Costs incurred to date in defense ofthis matter on behalf ofthis offering Defendant total approximately $5,000, and do not include costs which have yet to be expended on additional discovery, expert discovery, and trial preparation in the event this offer is not accepted by Plaintiff. This amount is provided to Plaintiffto aid her in making an informed decision as to whether or not to acceptthis offer, and is not to be construed as limiting the amount of costs for which this offering Defendant will seek to recover. See Valentino v. Elliot Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 760-701. Thatthis offer be accepted in writing priorto trial, or within 30 daysafter said offer has been served on Plaintiff, whichever occurs first. That said dismissal with prejudice as to this offering Defendant be filed with the Court of the above-entitled action in lieu of an entry of judgment in favor of Defendant, THOMAS H. LEE, M.D. That in the event this offer is not accepted by Plaintiff, and Plaintiff fails to obtain a more favorable judgment from this Defendant, Plaintiff shall not recover her postoffer costs and shall pay the Defendant’s costs from the time of this offer. In addition, the Court, in its discretion, may require Plaintiff to pay this offering Defendant’s costs from the date the complaint was filed, as well as areasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of the parties, actually incurred and reasonably necessary in the preparation and trial ofthis case by this offering Defendant. 2 STATUTORY OFFERTO COMPROMISEPURSUANTTO CODE OF CIVIL PROCEDURESECTION $98 TO PLAINTIFF, KRISTEN FRANZETTI O W 6 0 ~ ~ O& O W n b h Ww W N N N N N O N N O N e t e s e s e d p t p a BR N R BR B R Y E U Y U N V I R B I E S & £ 3 3a 6 2 6 0 =o 3 6) That in the event this offer is not accepted by Plaintiff, and Plaintiff fails to obtain a more favorable judgment, the costs under Section 998 from the time-ofthis offer shall be deducted from any damages awarded in favor of Plaintiff, by way of settlement, on behalf of Defendant in this action. Ifthe costs awarded under this section exceed the amount ofdamages awarded to Plaintiff, the net amount shall be awarded to this Defendant and judgment shall be entered accordingly. ATED: March 25, 2016 LA FOLLETTE, JOHNSON, DE HAAS, FESLER &AMES BY: S K. AMES, ESQ. B. MAGINOT, ESQ. Attorneys for Defendant THOMAS H. LEE, M.D. ACCEPTANCE OF OFFER Plaintiff, KRISTEN FRANZETT],in the above-entitled action, hereby accepts the offer ofjudgmentas stated above by Defendant, THOMAS H. LEE, M.D. Dated: Jeffrey A.Milman, Es HODES MILMAN TIEBECK, LLP Attorneys for Plaintiffs, MARCELO FRANZETTI and KRISTEN FRANZETTI 3 STATUTORY OFFER TO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, KRISTEN FRANZETTI 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 | PROOF OF SERVICE (C.C.P. §1013(a) and §2015.5) STATE OF CALIFORNIA J COUNTY OF ORANGE ) Method ofService: [ 1 By Personal Service [ 1 ByFacsimile [X] By Mail [ 1] ByE-mail/Electronic Trans. [ 1 By Overnight Delivery I, am employed in the County ofOrange, State ofCalifornia. I am over the age ofeighteen years and not a party to the within action. I am employed with the law offices of La Follette, Johnson, De Haas, Fesler & Ames, 2677 N. Main Street, Suite 901, Santa Ana, California 92705. On March 25, 2016, I served the within document entitled STATUTORY OFFER TO COMPROMISE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 998 TO PLAINTIFF, KRISTEN FRANZETTI on all interested parties in this action by placing [ ] the original [X] a true copy thereof, enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST [X] MAIL - Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing, Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more thanone dayafter date ofdeposit for mailing an affidavit. [ 1] BYPERSONALSERVICE - Such envelope(s) were delivered by hand to the office(s) of the addressee(s). [1] VIA FACSIMILE - I transmitted to the above-named person(s), at the FAX number(s) listed above,the above-named document,pursuantto Rule2008. Thefacsimilemachinethat I used complies with Rule2003(3) and no error was reported. [] BY EMAIL OR ELECTRONIC TRANSMISSION. Based on a court order or an agreement ofthe parties to accept service by email or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message orother indication that the transmission was unsuccessful. [X] STATE - I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. [1] FEDERAL - I declare that ] am employed in the office ofa member ofthe bar ofthis Court at whose direction the service was made, Executed on March 25, 2016, at Santa Ana, California. t S/he ¥ Amber Brantner 1 I PROOF OF SERVICE - - SERVICE LIST 2 Marcelo Franzetti, et al. V. Placentia Linda Hospital, et al. Court - OCSC - Central 3 Case No.: 30-2015-00780697-CU-MM-CJC OurFile No.: 903.38125 DKA/ZBM 4 5 6 7 9210 Irvine Center Drive e, California 92618 8 949/640-8222 ~ {949/640-8294 - Facsimile 9 li 1-1 10 11 12 i WALKER& MANN, LLP 13 {10832 Laurel Street, Suite 204 Rancho Cucamonga, California 91730-3827 14 {909-989-3200 009-697-2182 - Facsimile 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 I PROOF OF SERVICE ---- 10 11 12 13 14 ES 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am over the age of 18, employed in the County of Orange, State of California, and not a party to the within action; my business address is 9210 Irvine Center Drive, Irvine, CA 92618. On November 9, 2017, I served a copy, with all exhibits and attachments, of the foregoing document described as: PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS on the party or parties named below, by placing true copies thereof enclosed in sealed envelopes, and sent as follows: Jeffrey A. Walker, Esq. Douglas K. Mann, Esq. Mojan Anari, Esq. WALKER & MANN LLP 10832 Laurel St., Suite 204 Rancho Cucamonga, CA 91730-3827 (909) 989-3200; Fax: (909) 697-2182 Attorneys for Defendant, DAVID B. JACKSON, M.D. (sued as DOE 1) Dennis K. Ames, Esq. LA FOLLETTE, JOHNSON, DE HAAS, FESLER & AMES 2677 N. Main Street, Suite 901 Santa Ana, California 92705 (714) 558-7008 Fax: (714) 972-0379 Attorneys for Defendant, THOMAS H. LEE, M.D. (sued as DOE 2) XX BY U.S. MAIL as follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. postal service on the same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. XX STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 9, 2017 at Irvine California. BRENDAK. MILLER ( 12 PLAINTIFFS” NOTICE OF MOTION AND MOTION TO TAX COSTS SUBMITTED BY DEFENDANTTHOMAS H. LEE, M.D.; DECLARATION OF JEFFREY A. MILMAN
