Laurence Harper vs. Raul Najera Lopez

Motion - Other

Cal. Super. - 4th Dist.April 13, 2016

- 2 3 4 5 6 7 8 9 10 11 12 g 13 FIER Pid 1s iis “3 18 ’ 19 20 2] 22 23 24 2 26 27 Q £9 PRINTED ON RECYCLED PAPER RICHARD A. COHN, ESQ. (SBN 145156) ATTICUS N. WEGMAN,ESQ. (SBN 273496) AITKEN4AITKEN 4 COHN 3 MACARTHUR PLACE, SUITE 800 P.O. BOX 2555 SANTA ANA, CA 92707-2555 (714) 434-1424/(714) 434-3600 FAX Attorneys for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CASE NO: 30-2016-00846007 [Hon. Theodore Howard, Dept. C18] LAURENCE HARPER, an individual; MICHAELYN MILOSEVICH-HARPER, an individual; oo Plaintiff, PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER VS. RAUL NAJERA LOPEZ, an individual; CAPISTRANO FORD,a business organization, form unknown; DOES 1 to 10, inclusive; Defendants. Date: October 18,2018 Time: 1:30 p.m. Dept.: C18 RESERVATION NO.: 72889199 AND RELATED CROSS-ACTIONS. N r ” N r ” N r ” N e ” N r ” N r ” N e ” N e ” N e ” N e ” a e ” N a N e N a N e N e N e Complaint Filed: 4/13/16 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that on October 18, 2018 at 1:30 p.m., or as soon thereafter asthe matter may be heard in Department C18 of the above-entitled court located at 700 Civig1PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHNAND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O 0 N N O Y W n B b W N = E E A A w v A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, C A 92 70 7 D O N ND N N N ND m m A Gh BR W O R N -~ , SS © © = N o 3 IQ 9 PRINTED ON RECYCLED PAPER Center Drive West, Santa Ana, California, Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH will move the Court for an Order granting Plaintiff’s costs of proof. This motion is being made on the grounds that Defendant unreasonably denied requests for admissions forcing Plaintiff to prove such mattersat trial. This motion is based on the memorandum of points and authorities and Declarations of Atticus N. Wegman and Richard A. Cohn accompanying this motion, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of] this motion. Dated: September 12,2018 AITKEN+AITKEN+COHN w (hatte ¥RICHARD A. CONN.BSG- ATTICUS N. WEGMAN, ESQ., Attorneys for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O o 0 9 a N L n A W N - _ = e m e m e e p d SA N n n B A WL W N D = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 b o N o N o D N N o N o N o -_ - - - A N W n EE N W w N o p - S S o O [ ] R Y N o ~ IQ €9 PRINTED ON RECYCLED PAPER MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On December 7, 2015, around 2:00 p.m., Plaintiff Mr. Laurence Harper was traveling alone in his four-door sedan on his way to his house on Camino Capistrano Boulevard in San Juan Capistrano, Ca. There are four lanes of travel on Camino Capistrano Boulevard, two Northbound lanes and two Southbound lanes, separated by an open median. Plaintiff Mr. Harper was traveling Southbound in the slow lane. During this time, Defendant Cervando Salgado, working for his employer Defendant URS Midwest, illegally parked his vehicle along a red curb on Camino Capistrano and thus blocked the line of sight for both Plaintiff and Co-Defendant Raul Lopez. Co-defendant Raul Lopez, unable to see, was in the process of negotiating a left turn onto Camino Capistrano Boulevard from the nearby Tuttle Click Capistrano Ford car dealership. Due to their inability to see each other, Plaintiff Mr. Harper and Defendant Lopez’s vehicle collided with each other at a high rate of speed. Plaintiff Mr. Harper sustained major injuries to his neck (requiring fusion surgery), back (requiring fusion surgery), left shoulder (requiring surgery), right shoulder (requiring surgery), and minor injuries to his right wrist and right foot. 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O 0 9 O N w n B A W N = -_ - e m e t p d p d p d A N L n B r W N = O o 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N O O N N N N N N m m A hh BA O N =~ SS © oo = N o J Q 9 9 PRINTED ON RECYCLED PAPER Defendant Cervando Salgado, and his employer Defendant URS Midwest maintained from the inception ofthis case through commencement oftrial that they were not negligent; and maintained through trial and closing argument that if they were found to be negligent, their negligence was not a substantial factor in causing this collision. In the face of clearly written Requests for Admissions, Defendants Salgado and URS Midwest deliberately chose to deny liability and causation during the entirety ofthis case. This dynamic played a significant role in frustrating the parties’ ability to resolve this matter priorto trial. As the Court is aware, this matter required a lengthy trial with many experts and witnesses. In the end, the jury found not only that Defendant Cervando Salgado, and his employer Defendant URS Midwest were negligent, but that their negligence was also a substantial factor. The jury found Defendants Salgado and URS Midwest responsible for 40% of the fault. By contrast to Defendants Salgado and URS Midwest, Co-defendants Lopez and his employer Tuttle Click Capistrano Ford admitted liability and causation (but disputed the gravity of damages). Due to Defendant Cervando Salgado, and his employer Defendant URS Midwest's unreasonable posturing ofthis case, Plaintiffs were required to incur substantial expenses and time in proving said Defendants’ negligence and substantial factor at trial. If Plaintiffs did not prosecute either of the Defendantsit is assuredly true that the absent Defendant at trial would blame negligence, causation, and damages on the empty chair Defendant. As such, neither Defendant can argue that Plaintiff would have incurred the same expense and time regardless of how many Defendants were involved. The ultimate verdict in this case is evidence that Defendants Salgado and URS Midwest unreasonably forced Plaintiff to prove matters that should have been agreed to priorto trial. Defendants Salgado and URS Midwest gambled heavily on the fact that they would not be found liable and thus did not proffer any experts in the area of accident reconstruction, medicine, or biomechanics, to oppose Plaintiffs” experts and prove their case. Defendants Salgado and URS Midwest’s gamble caused Plaintiffs severe prejudice by the 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O 0 9 O N L n k A W N = -_ - e m e b p d p d p d A N w n A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D o N o N o N o N o N o n N - _ -_ - - a N w i NE N w o N o - _ o S \ O o o J N o ~ ~ nQ €9 PRINTED ON RECYCLED PAPER way of substantial time and costs. As such, pursuant to Code of Civil Procedure section 2033.420(a) et seq., Plaintiffs are entitled to “reasonable expenses incurred. ..including attorneys fees”. Id. II. AN AWARD FOR THE COSTS OF PROOF, INCLUDINGATTORNEYS FEES,IS MANDATORYWHEN REQUESTS FOR ADMISSION ARE DENIED AND LATER PROVED AT TRIAL Requests for Admission differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof. Stull v. Sparrow (2001) 92 Cal.App.4™ 860. Codeof Civil Procedure section 2033.420 states: (a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. 2) The admission sought 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. The Court shall impose costs including attorney’s feesif a party is found to have unreasonably denied a Request for Admission, which thereby required the requesting party to prove such matter at trial. Stull v. Sparrow (2001) 92 Cal.App.4™ 860. These costs are mandatory unless the responding party proves an excuse. Code of Civil Procedure section 2033.420(b). Early admissions lead to settlement or dismissal; such result is a positive step in alleviating the heavy caseloads in our courts. Billings v. Edwards (1981) 120 Cal.App.3d 238, 244. Fees and expenses may be recovered from date of responses through trial. Garcia v. Hyster 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © © 9 O o wn » B b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 99 €9 PRINTED ON RECYCLED PAPER 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 Co. (1994) 28 Cal.App.4th 724, 736. In the instant case, Plaintiff served a great deal of Requests for Admissions on May 10, 2017, to both Defendants Salgado and URS Midwest to limit the issues that would need to be proved at trial. Defendant Salgado responded on June 12, 2017, and Defendant URS Midwest responded on July 10, 2017. Defendants unreasonably denied many of those Requests and Plaintiff was forced to carry the burden of unnecessarily proving issues of negligence and causation at trial. Such Requests for Admission were of substantial importance as they went to the heart of Plaintiff's case against Defendants (and Defendants had no reasonable groundsto believe they would prevail on the matter). Defendants Salgado and URS Midwest were permitted to deny negligence and causation, in whole orin part, relating to this incident; however, per Code of Civil Procedure section 2033.420(b) and case law, such a position must be taken with great caution as costs of proof will follow if those issues are proved at trial. When there is no reasonable basis for denying simple Request for Admissions, the responding party bears the risks of losing a costs of proof motion post-trial. See Code of Civil Procedure section 2033.420(a) and Laabs v. City of Victorville (2008) 163 Cal.App.4™ 1242. Courts have decided thatit is not enough for a party denying a Request for Admission to solely “hotly contest” the issue...instead, there must be some reasonable basis for contesting the issue in question before costs can be avoided. Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 511. Courts have further held that a party’s reasonable grounds and for denial of a Request for Admission must be “more than a hope or a roll of the dice.” Grace v. Mansourian (2015) 240 Cal.App.4"523, 530-532. On July 12, 2018, twelve (12) jurors decided that not only was Defendants Salgado and URS Midwest negligent and their negligence was a substantial factor, but that they bore nearly 2 of the fault of 40%. Attached as Exhibit A, please find a copy ofthe signedjury verdict in this matter. 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N + 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 N O 0 9 O N U n B r W N -_ - m t p d p e p d e d p e A A w n B A W N D = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D o N N N N N N = - - a N W n E N S ) N o = O O c o N o 3 Q £9 PRINTED ON RECYCLED PAPER A. Proving Negligence, Causation, and Medical Expenses Against Defendant Salgado On June 12, 2017, Defendant Salgado unequivocally denied that he was negligent or liable for this incident. Not only did Plaintiff ask Defendant Salgado to admit, under oath, his negligence and liability, but Plaintiff also asked that Defendant Salgado admit, under oath, his partial negligence and partial liability for this incident. Defendant Salgado unequivocally denied all such requests: REQUEST FOR ADMISSION NO. 2: YOUR negligence caused this INCIDENT. RESPONSE TO REQUEST NO. 2: Deny. REQUEST FOR ADMISSION NO.3: YOURnegligence, in part, caused this INCIDENT. RESPONSE TO REQUEST NO.3: Deny. REQUEST FOR ADMISSION NO. 9: YOU are liable, in part, for the injuries suffered by Plaintiff Laurence Harper from the INCIDENT. RESPONSE TO REQUEST NO. 9: Objection, the request calls for a legal conclusion,calls for expert opinions, overbroad. Notwithstanding and without waiving these objections, responding party responds as follows: Deny. See Plaintiff's Requestsfor Admission, Set One, No. 2, 3, 6, 7, and 9 to Salgado and Defendant Salgado ’s responses attached hereto as Exhibits B and C. Defendant Salgado also denied that it had any facts to support its Eighth Affirmative Defense, which provided that if Defendant Salgado is found responsible, “defendants are not responsible for the costs and/or expenditures of any medical expenses which is not reasonably related to the injuries in this accident and/or necessary to treat the same and that said expenses are limited to amounts actually incurred and paid with respectto said services.” Attached as 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © © 3 9 O o w n B A W N -_ - e m e d e d p d p d A A n n B A WL W = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 N O N N N N N m m A Uh BA W N =~ OS WO 0 = N o J Q 9 PRINTED ON RECYCLED PAPER Exhibit G, pleasefind Defendant Salgado and URS Midwest's Answer and Affirmative Defenses whereby the original defendants were Donald Pinkus and DNJ Services. REQUEST FOR ADMISSION NO.20: YOU presently have no knowledge of any fact to support its eighth affirmative defense in YOUR answer. RESPONSE TO REQUEST NO. 20: Deny. See Plaintiff's Requestsfor Admission, Set One, No. 20, and Defendant Salgado’s responses attached hereto as Exhibits B and C. B. Proving Negligence, Causation, and Medical Expenses Against Defendant URS Midwest : On July 10, 2017, Defendant URS Midwest unequivocally denied that Defendant Cervando Salgado,its admitted agent within the scope ofits agency at the time of the incident, was negligent or liable for this incident: REQUEST FOR ADMISSION NO.3: Cervando Salgado’s negligence,in part, caused this INCIDENT. RESPONSE TO REQUEST NO.3: Deny. See Plaintiff's Requestsfor Admission, Set One, No. 3, to Defendant URS Midwest and Defendant URS Midwest's responses attached hereto as Exhibit E and F. Defendant URS Midwest also denied that it had any facts to support its Eighth Affirmative Defense which provided that if Defendant URS Midwest is found responsible, “defendants are not responsible for the costs and/or expenditures of any medical expenses which is not reasonably related to the injuries in this accident and/or necessaryto treat the same and that said expenses are limited to amounts actually incurred and paid with respect to said services.” Attached as Exhibit G, please find Defendant Salgado and URS Midwest's Answer and Affirmative Defenses whereby the original defendants were Donald Pinkus and DNJ Services. 8 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 J I O o w n B A W N = J A A w n B A WL W N D = O O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 N D D N N o N o N o NS ] N o - _ -_ - - a N W n ~ ~ Ww W \ - S © o o R Y N o ~ ~ IQ €9 PRINTED ON RECYCLED PAPER REQUEST FOR ADMISSION NO. 18: YOU presently have no knowledge of any fact to support the eighth affirmative defense in YOUR answer. RESPONSE TO REQUEST NO. 18: Deny. See Plaintiff's Requestsfor Admission, Set One, No. 18, and Defendant URS Midwest's responses attached hereto as Exhibit E and F. III. DEFENDANT SALGADO AND URS MIDWEST HAD NO REASONABLE GROUNDS TO DENY It is anticipated that Defendants Salgado and URS Midwest will argue that his denials of Plaintiff's Requests for Admissions should be excused. Defendants will likely state that Code of Civil Procedure section 2033.420(b) excuses a denial of Requests for Admission if the court finds that defendant had reasonable grounds to believe that they would prevail on the matter. This argument is unpersuasive. The Court, the jury, Co-Defendants Raul Lopez and Tuttle Click Capistrano Ford and Plaintiffs had to sit and listen to defense counsel for Salgado and URS Midwest argue that they were not responsible all for this incident. Defense counsel for Salgado and URS Midwest then piggybacked Co-Defendants’ argument that Plaintiff Laurence Harper’s damages were not severe, and his credibility was suspect. Courts have decided thatit is not enough for a party denying a Request for Admission to solely “hotly contest”the issue...instead, there must be some reasonable basis for contesting the issue in question before costs can be avoided. Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 511. Courts have further held that a party’s reasonable grounds and for denial of] a Request for Admission must be “more than a hope or a roll of the dice.” Grace v. Mansourian (2015) 240 Cal.App.4™523, 530-532. As such, there is no “reasonable ground” so as to excuse Defendants’ denials of Plaintiffs’ Request for Admissions. Defendants mightalso try to argue that their objections to Request for Admission No. 9 propounded on Defendant Salgado (see above) protects them from a cost award. This is not the 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O 0 9 O N w n b s W N - _ e m p d p d p e e m A N L n k A W D = O O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 D O r o Ne ] N o N o n o D N - - - [o ) W n = ~ W w N o - _ o o O o c o 3 N o ~ 3 Q 9 9 PRINTED ON RECYCLED PAPER law. This identical issue was decided in the controlling and precedential case American Federation ofState, County & Municipal Employees v. Metropolitan Water Dist., (2005) 126 Cal. App. 4th 247, 269. In American Federation, the court held that unequivocal responses such as “admit” or “deny” after objections will support a motion for costs of proof. /d. It is of no matter that a party objects to a Request for Admission as long as there is an unequivocal response, which in this case, there was. A. Negligence, Causation, and Medical Expenses Against Defendants Salgado and URS Midwest Have Always Been Clear During all times in this case, there has never been any evidence that would support Defendant Salgado and URS Midwest’s position that they were not at least partially negligent and liable for Plaintiff Laurence Harper’s injuries. The facts ofthis case have never changed; they have only worsened for Defendants Salgado and URS Midwest. e Co-Defendant Raul Lopez admitted in his deposition, which was taken on June 5, 2017, prior to Defendants’ denial of any Requests for Admission, that Defendant Salgado and URS Midwest’s vehicle was obstructing his “whole vision to the left side.” Attached as Exhibit H, pleasefindpertinent portions ofthe deposition of Raul Lopez. e Defendant Lopez also admitted at this deposition that Defendant Salgado and URS Midwest’s white truck, red truck being towed behind, and the cargo van recently unloaded from the white truck’s trailer all obstructed his view. Attached as Exhibit H, pleasefindpertinent portions ofthe deposition ofRaul Lopez. e Plaintiff Laurence Harpertestified at his deposition taken on March 27, 2017, again prior to Defendants’ denial of any Requests for Admission that the vehicle he collided with “dropped out of the sky...boom” and that it was not until it was “directly in front of me” that he saw the vehicle he collided with. Attached as Exhibit I, please findpertinent portions ofthe deposition ofLaurence Harper. 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 8 0 0 O O 0 9 S N n n B A W N - _ = e m e m e d e d p e A A w n B A W N D = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D D N o N N N N N = - _ - a N W n A W w N = O O 0 3 N o ~ ~ Q £9 PRINTED ON RECYCLED PAPER The only independent witness in this case, Theresa Williams, testified in her deposition on April 19, 2017, prior to Defendants Salgado and URS Midwest’s denials, that Defendants’ [Salgado and URS] truck and trailer “was halfway blocking the entrance” to the car dealership. Attached as Exhibit D, please find pertinent portions ofthe deposition of Theresa Williams. The video of the accident sequence, which was admitted into evidence and shown to the jury many times during trial, was produced to all parties on August 2, 2016, nearly a year before Defendants’ denial of any Requests for Admission. Photographs of Defendant Salgado and URS Midwest’s vehicle combination blocking the entrance to the car dealership alongside the entirety of a red curb and obstructing Plaintiff Harper and Defendant Lopez’s line of sight were produced well before Defendants’ denial. Attached as Exhibit M, pleasefind above- mentionedphotographs. Defendant Raul Lopez and Defendant Tuttle Click’s Capistrano Ford’s expert accident reconstructionist Dr. Kenneth Solomon (did not testify) and Plaintiff’s accident reconstructionist Edward Fatzinger agreed that Defendant Salgado and URS Midwest’s vehicle blocked Defendant Lopez and Plaintiff’s line ofsight thus contributing to the crash. Mr. Fatzingertestified at trial as follows: Q. Can you tell us about that? A. Sure, obviously, that three-second window, Harper's view is being blocked by the Ford truck beginning to pull out. Obviously,if he would have been able to see that, he could have perceived and reacted to it, but he can't see it. Q. Okay. So is it your opinion that with that extra time that he would have had had that sight obstruction not been there, Mr. Harper would have had additional time to avoid this crash? A. Yes. Trial Testimony ofMr. Fatzinger, pg. 42, attached hereto as Exhibit J. 11 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © © 9 O N W n B A W N = - _ p e e m e m e e A N L n B A W D = O O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 N D N N NS ] N N N = - - A N W n ~ ~ Ww W N D = O O 0 3 N o J 7 &» PRINTED ON RECYCLED PAPER e Expert Dr. Kenneth Solomon opined in his report, which was discussed at length during his deposition taken before this trial, that “Defendant Lopez’s line of sight of southbound traffic on Camino Capistrano was significantly obstructed by the presence of Co-Defendant Salgado’s Dodge Ram and trailer.” Attached as Exhibit K, pleasefindpertinentportions ofthe deposition ofDr. Solomon. As such, and based on the jury’s finding,it is clear that Defendants Salgado and URS Midwest unreasonably denied Requests for Admissions related to negligence and causation.It should also be noted thatthe trial Court’s decision in this matter will not be disturbed on appeal and will be reviewed only based on an abuse of discretion standard. Miller v. American Greetings Corp. (2008) 161 Cal.App.4™ 1055, 1065-1066. The appellate court’s inquiry is limited to determining whetherthe trial court's decision exceeds the bounds of reason. Stull v. Sparrow, supra, 92 Cal.App.4th at p. 864. Here,the trial court is well within its powerto rule that Defendants Salgado and URS Midwest’s unreasonably denied admissions were later established to be incorrect." Further, an award for costs of proofis awardable against the client, not against the attorneys. Estate ofManuel (2010) 187 Cal.App.4™ 400, 404-405. IV. PLAINTIFFS’ AWARD FOR COSTS OF PROOF PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2033.420 IS APPROXIMATELY $150,000 Case law provides that Plaintiffis entitled to the reasonable value of time spent after Requests for Admissions were unreasonably denied, regardless of whether the attorney fee is based on a contingency or hourly. See Gonzales v. Personal Storage (1997) 56 Cal.App.4th 464. Detailed time sheets are not required “and the court may award fees based on time estimates for attorneys who do not keep time records.” Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 64. I An award ofcosts of proof under Code of Civil Procedure section 2033.420 is not a “discovery sanction” or a “penalty” for engaging in “misuse ofthe discovery process”...costs of proof in connection with requests for admission are awarded if the response is established to be incorrect-not for misuse of the discovery process. City ofGlendale v. Marcus Cable Asocs., LLC (2015) 235 Cal.App.4th 344, 359 (emphasis added). 12 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHNAND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 N O 0 9 O N w n B A W N - _ = e m p d e d e d p e S A L n B A W N = O 7 1 4 - 4 3 4 - 1 4 2 4 7 1 4 - 4 3 4 - 3 6 0 0 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D O N o N o N o D N N o N D - - - a N W n E N w N o - < \ O 0 ~ N o ~ 7Q &» PRINTED ON RECYCLED PAPER Accounting of time is required (e.g. by declaration from moving party’s counsel) setting forth the hourly fees and time spent to prove the matter denied...as opposed to time spent in preparation for trial generally or in proving other matters at trial of the case. See generally Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 737 (emphasis added). A. Attorneys Fees Plaintiffs’ counsel Richard A. Cohn and Atticus N. Wegman’s billing rate from June 12, 2017 to present is $750.00 and $300.00 per hour, respectively. See Declarations ofRichard A. Cohn and Atticus N. Wegman. A total of 6 hours researching and writing the instant motion and anticipated travel time and hearing time of 4 hours is allotted to file, serve, and argue this motion. Declaration ofAtticus N. Wegman. Plaintiffs’ counsel Atticus Wegman has spent an estimated total of at least 575 hours working on this case since Defendant Salgado’s denials on June 12, 2017, and Defendant URS Midwest’s denials on July 10, 2017 until the jury rendered its verdict on July 12, 2018. Id. Likewise, Plaintiffs’ counsel Richard A. Cohn spent an estimated 100 hours. Declaration of Richard A. Cohn. Of the total amount of time spent on this case from the date of the above- mentioned denials, 50%, of that time, or 287 hours for Mr. Wegman and 50 hours for Mr. Cohn, are allotted to prosecuting Defendants Salgado and URS Midwest. See Declarations ofRichard A. Cohn and Atticus N. Wegman. The reasonable value of the time spent proving the above denials against Defendants Salgado and URS Midwest is $123,600 ($86,100 for Mr. Wegman and $37,500 for Mr. Cohn). /d. If the Court is inclined to award an amount based on the jury’s finding of 40% offault, also based on rate of $750 for Mr. Cohn and $300 per hour for Mr. Wegman, the reasonable value ofthat time is $99,000 ($69,000 for Mr. Wegman and $30,000 for Mr. Cohn). Id. This time encompasses taking, defending, and preparing 14 of 18 depositions, excluding the depositions of Plaintiffs, Raul Lopez, and Theresa Williams which occurred prior to the denials. Id. This time encompasses propounding and responding to hundreds of written legal 13 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHNAND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N +4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O 0 9 O N n n B R W N - _ e m e e e d e d e d A A L n A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 No ] N D N o N o N o N o N D - = a - lo ) W n ~ ~ W w N o - o S O o 0 J N o ~ 7Q &» PRINTED ON RECYCLED PAPER discovery request for production, interrogatories, request for admission, preparing witnesses for trial testimony, serving over a dozen trial subpoenas and document production subpoenas, attending court hearings and trial, preparing for trial, preparing evidence for trial, rehearsing voir dire, opening statement, closing argument, direct and cross examination of witnesses, engaging in extensive law and motion including motions in limine and supplemental briefing, reviewing evidence to be used for demonstrative purposes, reviewing evidence to be admitted, consulting with non-retained experts regarding the deployment of airbags and medical expense related issues,visiting the scene ofthe incident, gathering lien information and supporting medical records, and preparing pretrial documents including exhibit binders,stipulations, witness lists, jury instructions, statement of case, and exhibit list, coordinate the testimony of witnesses with nightly calls or calls by cell phone while driving to and from courthouse, going over depositions with witnesses for any corrections, communicating with numerous medical providers to get an accurate accounting of medical expenses, preparing supplemental written discovery, among other things. /d. Had Defendants Salgado and URS Midwest chosen to admit rather than deny that Request for Admissions noted above, the instant litigation, preparation fortrial and trial itself would have been significantly expedited. /d. B. Costs Costs incurred, after Defendants June 12, 2017 and July 10, 2017 denials, to prove negligence, causation, and medical expenses are as follows: e Expert Accident Reconstructionist Edward Fatzinger (Momentum Engineering) totaling $16,116 e Expert Biomechanic John Brault (Semper Scientific), totaling $10,216 e Expert Neurosurgeon Dr. Jason Liauw (Beel Medical), totaling $21,491 e Expert Shoulder Surgeon, Dr. Michael Marandola (COMG), totaling $9,000 e Expert Medical Billing Paul Adams (Moss Adams), totaling $22,169 e Expert Spine Surgeon Gerald Alexander (Jasper), totaling $14,425 14 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 A W L W O o 0 9 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 QQ 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 €9 PRINTED ON RECYCLED PAPER e Medical Records and Bills retrieval to prove causation and medical expenses at trial, totaling $7,454. Total Costs: $100,871 Attached as Exhibit L, pleasefind documentation reflecting the costs incurred. The costs incurred to prove Defendant Salgado and URS Midwest’s denials, like above, must be reduced by 50% for a total of $50,435 as they were partially required to prosecute this matter against Co-Defendant Lopez and Tuttle Click Capistrano Ford. However, if the Court is inclined to award an amount based on the jury’s apportionment finding of 40% of fault, the total cost incurred would be $40,348. 1 11 11 1 1 11 11 11 11 11 1 1 1H 11 11 1 i 15 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHNAND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 © 0 9 O N n n h r W N = E E e e A N n n A W N = O o 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 9 2 7 0 7 D O N o N o N o N o N o n o - - _ - _ a N w i = ~ W w N o - = © c o ~ N o ~ Q £9 PRINTED ON RECYCLED PAPER V. CONCLUSION Plaintiffs respectfully request that this Court grant the instant motion to award Plaintiffs attorney fees as follows: (a) $123,600 for costs for proof as against Defendants Salgado and URS Midwest, jointly and severally, for attorney fees based on a 50% allocation oftotal time spent; or (b) $99,000 for costs of proof as against Defendants Salgado and URS Midwest, jointly and severally, for attorney fees based on a 40% allocation of total time spent. Plaintiffs further respectfully request that this Court grant the instant motion to award Plaintiffs costs as follows: (a) $50,435 in costs for costs of proof based on a 50% allocation as against Defendants Salgado and URS Midwest, jointly and severally; or (b) $40,348 in costs for costs of proof based on a 40% allocation as against Defendants Salgado and URS Midwest, jointly and severally. Respectfully submitted, Dated: September 13, 2018 AITKEN4AITKEN+COHN aul RICHARD A. COHN, ESQ. ATTICUS N. WEGMA Attorneys for Plainti LAURENCE HARPER. MICHAELYN MILOSEVICH 16 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHNAND ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 O O X X 9 A N U n B A W N = a e e e e e e e e e e A A w n B A WL W N D = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N O N D N N N N N N m m em I A A Lh B R W N m S 0 e w N o 0 €9 PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On September 13, 2018 I served the foregoing documents described as PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR COSTS OF PROOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF RICHARD A. COHN AND ATTICUS N. WEGMAN; [PROPOSED] ORDER on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BY MAIL (X) As follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with 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 if postal cancellation date oFposta: meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. (X ) By Email Transmission: I caused the above-referenced document(s) to be transmitted to the personslisted in the attached Proof of Service lists. Executed on September 13, 2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 1 PROOF OF SERVICE p - 2 3 4 5 6 7 8 9 10 11 12 g 13 59088 I iz 18 ” 19 20 21 22 23 24 25 26 27 28 £9 PRINTED ON RECYCLED PAPER HARPER v. LOPEZ, et al. SERVICE LIST Debra L. Braasch, Esq. Scott MacDonald, Esq. MACDONALD & CODY LLP 38 Executive Park, Suite 280 Irvine, CA 92614 (714) 831-1713 (714) 823-3229-fax Attorneys for Defendants/ Cross- Complainants/Cross-Defendants TUTTLE CLICK'S CAPISTRANO FORD,INC. (erroneously sued and served as "Capistrano Ford") and RAUL NAJERA LOPEZ Richard C. Moreno, Esq. Steven J. McEvoy, Esq. MURCHISON & CUMMING LLP 801 South Grand Ave., 9th Floor Los Angeles, CA 90017 (213) 623-7400 (213) 623-6336-fax Attorneys for Defendants/Cross- Complainants /Cross-Defendants DNJ SERVICES LLC, DONALD PINKUS; Defendants/Cross-Defendants CERVANDO SALGADO, ROE 1 AND URS MIDWEST, INC., ROE 2 2 PROOF OF SERVICE