Smith v. Wagner CA2/4

Filed 12/19/13 Smith v. Wagner CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KENT SMITH, B245821

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC415899) v.

LINDSAY WAGNER et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court for Los Angeles County, John Kralik, Judge. Affirmed. Law Offices of Armen M. Tashjian and Armen M. Tashjian for Plaintiff and Appellant. Mark R. Weiner & Associates and Kathryn Albarian for Defendants and Respondents.

Plaintiff Kent Smith appeals from an order taxing costs he claimed under Code of Civil Procedure1 section 998 after he obtained a judgment against defendants Lindsay Wagner, Regina Samsel, and Lindlear Corporation in an amount that exceeded a section 998 offer to compromise he served on Wagner and Samsel, which they did not accept. We affirm the order.

BACKGROUND Smith was injured when a vehicle owned by Wagner and driven by Samsel collided with the vehicle Smith was in. Smith filed a Judicial Council of California form complaint against Wagner and Samsel, alleging two causes of action. In the first cause of action, labeled “Motor Vehicle,” Smith alleged that the accident took place on September 24, 2008, that Samsel operated the vehicle, and that Wagner owned the vehicle. The complaint also alleged that Does 1 to 25 employed Samsel (who operated the vehicle in the course of her employment), entrusted the vehicle to her, and were the agents and employees of Wagner and Samsel acting within the scope of the agency. In the second cause of action, labeled “General Negligence,” Smith alleged that Wagner, Samsel, and Does 1 to 25, negligently entrusted, managed, maintained, drove and operated the vehicle so as to proximately cause the vehicle to collide with Smith’s vehicle, causing injury and damages to Smith. Wagner and Samsel, jointly represented by counsel from State Farm Mutual Automobile Insurance Company, filed an answer to the complaint, generally denying the allegations of the complaint and asserting three affirmative defenses: failure to state a cause of action, comparative negligence, and unreasonable medical treatment.