Flores v Adams

But Plaintiffs fail to demonstrate

202200566201CLPA: Flores v Adams

an error was made. The admissibility of this evidence cannot be assessed in a vacuum. The burden to establish the preliminary facts necessary to gain admission of evidence is on the proffering party, and here Plaintiffs make not the slightest effort to demonstrate that they met that burden. Third, Plaintiffs argue that the court erred by refusing to conduct an evidentiary hearing under Evidence Code section 402 and/or by declining Plaintiffs’ request to make an offer of proof. “In determining the admissibility of evidence, the trial court has broad discretion.

Thus, it is within the court's discretion whether or not to decide admissibility questions under Evidence Code section 402, subdivision (b) within the jury’s presence.” (People v. Williams (1997) 16 Cal. 4th 153, 196.) Plaintiffs fail to demonstrate that the court abused its discretion. As noted above, Plaintiffs have not substantiated their claim that the court excluded admissible evidence. Nor have Plaintiffs shown that the court’s rulings were prejudicial. Fourth, Plaintiffs assert that defense expert Mr.

Paladino was improperly allowed to testify “to the speed of the accident,” which “was not in dispute and had no relevance other [than] to prejudice the jury.” (Tabone Decl. ¶ 9.) But Mr. Paladino’s testimony was relevant to causation. Further, Plaintiffs fail to demonstrate that the admission of this evidence, even if erroneous, was prejudicial. Plaintiffs’ argument concedes that the expert’s testimony went to an issue that “was not in dispute.” Finally, Plaintiffs take issue with comments made by defense counsel in closing.

Plaintiffs inexplicably urge the court to resolve this contention without regard to the record. But without transcript

202200566201CLPA: Flores v Adams

pages, the court cannot determine what was said, in what context it was said, if an objection was stated and if so the ruling made by the court, and whether an admonishment was requested or given. According to defense counsel’s declaration, the disputed statement concerned the absence of Plaintiff Stephanie Vasquez during closing. Defense counsel declared that the comment was objected to, that the objection was sustained, and that the jury was admonished to disregard the remark. Therefore, no prejudicial misconduct has been shown. (See People v. Woods (2006) 146 Cal. App. 4th 106, 118 [“the prejudicial effect of mild misconduct during argument may be dissipated by an instruction that the statements of the attorneys are not evidence”].)

2. Inadequate Damages Plaintiffs argue that the amount of damages awarded to Plaintiff Stephanie Vasquez – zero -- weas inadequate as a matter of law because liability was admitted and evidence of some medical expense was received. However, the jury found that Defendant’s negligence was not a substantial factor in causing Stephanie Vasquez’s medical treatment. As such, the jury never reached the issue of the reasonable value of medical expenses necessarily incurred by her. Most likely, Plaintiffs’ “inadequate damages” argument is simply an alternative way of asserting that the jury’s causation finding was not supported by the record. That argument is addressed next.

3. Insufficiency of the Evidence Plaintiffs contend that the jury’s verdict is not supported by substantial evidence. Presumably, this contention is directed at the jury’s sole finding that causation had not been proved. However, Plaintiffs fail to develop this contention in their moving papers by addressing the trial evidence. Generally, a challenge based on the

202200566201CLPA: Flores v Adams

sufficiency of evidence must include a discussion of all material evidence on the point, not just the evidence favorable to the moving party. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Plaintiffs made no attempt to do this. And, as relevant here, a new trial may not be granted based on “the ground of insufficiency of the evidence ... unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ.

Proc., section 659.) Putting aside this procedural shortcoming, the jury could reasonably conclude from the evidence before it that Plaintiff Stephanie Vasquez did not sustain an injury in the accident requiring medical treatment. The motion for new trial is denied. Motion to Tax Costs Plaintiffs move to tax certain costs claimed by Defendant.

1. Filing and Motion Fees Charges incurred in connection with the electronic filing of documents, including OCR scanning fees, are awarded, and, as to them, the motion is denied. The motion is granted as to “rush” service fees. The sum of $1,654.83 is taxed.

2. Deposition Costs The motion to tax the reporter’s “nonappearance” certificate fee is denied. (See Garcia v. Tempur-Pedic N. Am., LLC (2024) 98 Cal. App. 5th 819, 825.) Plaintiffs argue that the premium add-ons to the cost of the Bennett deposition transcript should be taxed. These serves were reasonably necessary to conduct the deposition. The motion to tax deposition costs is denied.

3. Expert Fees

202200566201CLPA: Flores v Adams

Plaintiffs seek to strike expert witness fees paid to defense expert Paladino. They argue that Mr. Paladino’s testimony was irrelevant and that the fees charged were excessive. But, as discussed above, the expert’s testimony was relevant. The amount of the fees is reasonable. The motion to tax this item is denied.

4. Court Reporter Fees The motion to tax Realtime charges is denied. The Realtime transcription was an aid to the court and counsel during the trial. The challenge to the amount of the reporters’ fees is denied.

5. Models, Enlargements, and Photocopies of Exhibits Plaintiffs argue that costs evidenced by a non-descript and undifferentiated invoice for $7,868.40 should not be allowed as costs of models, enlargements, and photocopies of exhibits. Although these are the types of costs typically awarded to a prevailing party, the court agrees with Plaintiffs. Absent an indication of what the aggregate charge represents, the court cannot determine whether the charge is one that is recoverable and, if so, whether the amount charged was reasonable. The motion to tax this item is granted.

6. Other Plaintiffs argue that investigator invoices from Hudon Investigations ($975 and $780) are barred by Code of Civil Procedure section 1033.5(b)(2), which provides that “Investigation expenses in preparing the case for trial” are not allowable as costs. Defendant asserts that Hudson investigations served trial subpoenas and was used in connection with securing witness attendant and service-related trial preparation. However, the assertion that the investigator served subpoenas is inconsistent with Defendants designation of these costs as “Other” rather than service of process fees. The invoices

202200566201CLPA: Flores v Adams

do not specify what the services provided were, and therefore it cannot be determined how much of it is for service of process and how much may be for other things. Defendant has not demonstrated that these fees are recoverable. The motion is granted as to these fees and $1,755 is taxed. Plaintiffs’ motion to tax Defendant’s CourtCall fees is denied. (See Landwatch San Luis Obispo Cnty. v. Cambria Cmty. Servs. Dist. (2018) 25 Cal. App. 5th 638, 646.) Therefore, the motion to tax is granted in part, and the aggregate sum of $11,278.23 is taxed. Defendant is awarded costs in the amount of $25,594.06. Defense counsel is directed to serve and lodge a proposed amended judgment to include the recoverable costs.

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