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FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 E X H IB IT “C ” FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 \\S erverI\T rialW o rk s\C aseF il« \l 162\P leadings\B O P N O . 5 M T . S IN A I (G E N E R IC )-! 0001442.doc SUPREM E COURT OF THE STATE OF NEW YORK In d e x N o :2 0 0 9 -1 13 3 1 IN AND FOR THE COUNTY OF K IN G S -X (P u rch ase d ate: 0 5 /0 8 /0 9 ) S V E T L A N A M IN A K E R a n d D M IT R IY M IN A K E R , P L A IN T IF F S , -A G A IN S T - V E R IF IE D B IL L OF P A R T IC U L A R S QPONMLKJIHGF SAM UEL KENAN, M .D ., SAM UEL KENAN, M .D ., P .C ., SHAW N EDW ARD TROKHAN, M .D ., JO R G E L U IS CAM UNAS, M .D ., M OUNT S IN A I SCHOOL OF (D E F E N D A N T S T H E M O U N T S I N A I H O S P IT A L a n d T H E M E D IC IN E FA CU LTY P R A C T IC E A S S O C IA T E S , THE M O U N T S IN A I M E D IC A L MOUNT S IN A I H O S P IT A L and THE MOUNT S IN A I CENTER) M E D IC A L CENTER, D E F E N D A N T S . ZYXWVUTSRQPONMLKJIHGFEDCBA -X COUNSELORS: P lain tiffs, th ro u g h th eir atto rn ey s at G A R Y B . P IL L E R S D O R F& A S S O C IA T E S , P .C .,as an d fo r th eirfirst resp o n sesto th e d em an d s o f th eD e fe n d a n t THE MOUNT S IN A I H O S P IT A L and THE MOUNT S IN A I M E D IC A L CENTER, se t fo rth a n d alleg e as fo U o w s (N o te: an y referen ce to P lain tiff sh a ll re la te to th e in ju re d P la in tiff S V E T L A N A M IN A K E R ): 1. The d ates and tim es of d ay o f th ealleg ed n e g lig en t acts a n d /o r o m issio n s w h ich w ill b ealleg ed and c la im e d a g a in st th e an sw erin g d e fe n d a n t h erein . 0 3 /0 5 /0 7 - 0 3 /2 3 /0 7 ; 0 4 /1 6 /0 9 2. The ex act lo c a tio n o f th ea lle g edn eg lig en t acts, a n d /o r o m issio n sch arg ed ag ain st th e an sw erin g D e fe n d an t h erein . T h e M o u n t S inai H o sp ita l O n e G u stav eL. L ev y P lac e N ew Y o rk, N Y 10029 3. A statem en t o f each and e v ery act o f n eg lig en ce, c o m m issio n or o m issio n w h ic h you w ill c la im as th e b a sis of th e alleg ed m a lp rac tic e of th e an sw erin g D e fe n d a n t h erein . FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 treatment and in to order and assess post- testing, outcome; failing timely surgical CT and/or MRI to monitor the tumor site and to determine any progression and/or reoccurrence; in failing to educate himself regarding published treatment guidelines and tumor management, the behavior and properties of the type of tumor that the Plaintiff was suffering from, the resources available for treatment, the availability and location of specialized treatment centers, treatment options, the appropriate treatment necessary and the necessary medical measures to take to prevent reoccurrence; in failing to consider and advise of pharmacological in the nature of non- therapy steroidal drugs (aspirin, Advil), Clinoril®, sulidae, COX- anti-inflammatory 2 inhibitors, tamoxifen, Nolvadex®, toremifene and/or raloxifene; in failing to consider intralesional therapies, in failing to develop, initiate and/or ensure compliance with rules, regulations, protocols, quality .procedures, guidelines, manuals and/or written regulations regarding (a) intraoperative tumor pathology and staging (b) intraoperative frozen section tumor pathology (c) obtaining frozen section tumor pathology (d) reporting of tumor pathology (e) ordering and obtaining STAT intraoperative pathology review of surgical specimens, (f) protocol and procedures for complete resection/rebiopsy, assessment, evaluation, notification, reporting, and management of tumors reported as reaching the margins or not having wide margins; (g) follow up procedures, rules, protocols for tumors reported as reaching the margins or not having wide margins; (h) intraoperative tumor staging (i) surgical scheduling and intraoperative pathology and staging coordination. 4. If there are any claims of vicarious liabilityagainst the answering defendant herein, state the names of each and every person who performed the acts or failed to act and if the names are not known, describe them by physical appearance or occupation with sufficient clarityto make ready identification. Samuel Kenan, M.D. Shawn Edward Trokhan, M.D. Jorge Luis Camunas, M.D. Benjamin L. Hoch, M.D. Y. Sun, M.D. 3 FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 This answering Defendant through its agents, servants and/or employees, including Defendants SAMUEL KENAN, M.D., SHAWN EDWARD TROKHAN, M.D., JORGE LUIS CAMUNAS, M.D. and any staff members, agents, servants and/or employees rendering services to the Plaintiff associated with MOUNT SINAI SCHOOL OF MEDICINE FACULTY PRACTICE ASSOCIATES, was negligent in failing to widely excise the tumor site and surrounding areas to ensure clear surgical margins; in failing to re-excise and retest, and/or recommend the re-excision and/or retesting of the tumor margins intraoperatively on March 19, 2007 and/or thereafter to ensure adequate excision and aggressive surgical treatment of the tumor with clear margins and removal of the entire tumor and adjacent tumor involvement; in failing to communicate to the co-defendants the necessity of re-excision of the tumor site to clear margins; in failing to order, recornmend and arrange for neoadjuvant chemo-radiotherapy, helical tomotherapy or similar type image-guided intensity modulated radiation treatments; in failing to procedurally request as hospital protocol intraoperative confirmation by frozen sections of disease-free margins and intraoperative surgical pathology reporting of the skin, tissue, tumor and rib sections in operative cases presenting with fibrous, invasive type tumors, in to perform radical resection of the subject - tumor aided failing by intraoperative margin evaluation via frozen sections followed by immediate mesh reconstruction to prevent reoccurrence and/or further progression of the tumor and achieve good operative outcome; in failing to immediately or within a reasonably short period of time after March 19, 2007 recommend re-excision of the tumor siteand adjacent areas and in failing to recommend and refer the Plaintiff for immediate post-surgical adjuvant chemo- radiotherapy; in failing to retain, employ and/or consult specialists with knowledge and experience with desmoid type tumors and in failing to refer the Plaintiff to collaborate specialists and an experienced multidisciplinary team to coordinate and manage Plaintiff's post-surgical treatment plan; in failing to refer the Plaintiff to a specialized medical center for optimal 2 FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 5. S tate e a chand e v ery act or o m issio nw h ic h w illbe c la im e das th e b a sisof liab ility fo r e a ch of th e o th erd efend an ts su ed h erein , sta tin gsep arately w h ic h a c t o r o m issio n w ill b e th e b asis o f y o u r claima g a in st e a ch o r a ttac h a co p y o f th e B ill(s) se rv e d p u rsu a n t to th e ir d em and . C o p ieso f c o -D e fen d a n t V e rifie d B ills o f P articu lars areattach ed h ereto . 6. A sta te m e n t of th e accep ted m e d ic a l p ractices, c u sto m s and m e d ic al stan d ard s w h ic h is claim ed w ere v io late d and d e p a rte d fro m by th e an sw erin g d e fe n d a n t h erein . D e fe n d a n t is en titled to o n ly g en eralstatem en ts o f n e g lig e n c e as se t fo rth ab o v e;fu rth erstatem en ts w o u ld be ev id en tiary in n atu rea n d n o t th e p ro p e r sco p e o fP la in tiffsV e rifie d B ill o f P articu lars.Cirelliv. Victory Memorial Hospital, 45 A D 2d 856, 358 N Y S2d 537 Nelson (1 9 74 ); v, NYU Medical Center, 51 A D 2d 352, 381 N yS2d 491 Abrams (1 9 76 ); v. Long Island Jewish Hillside Medical Center, 8 4 A D 2 d 5 5 4 . W ith o u t w a iv in g any rig h tsto o b je c t to th esam e. P lain tiff in co rp o rates her resp o n se s as se t fo rth in P a rag ra p h “3 ” h erein ab o v e. 7. S tate th e m anner in w h ic hth e an sw erin g d efen d an td ep arted fro m e a ch of th eab o v ea c c e p te d m e d ic al p ractices, cu sto m s an d stan d ard s. A re q u e st fo rsp ecific d ep artu res in a b illo f p articu larsis e v id e n tiary (see Patterson v. Jewish Hasp, & Med. Center of Brooklyn, QPONMLKJI 94 M is c 2d 680, 405 N Y S ld 194 (S u p . C t. K in g sC o. 1 9 7 8 ), a jfd65 AD 2d 553, 409 N YS2d 124 ( 2 " ^ D e p ’t Dellaglio v. 1 9 7 8 ), Paul & Kingsboro Medical Group, PC, 250 AD 2d 806, 673 N YS2d 212 (2 d D e p ’t Heyward 1 9 9 8 ); v. Ellenville Community Hospital, 215 A D 2d 967, 627 N YS2d 167 (3 ^^^ D e p ’t 1 9 9 5 ). W ith o u t w a iv in g an y rig h tsto o b je c t to th esam e. P la in tiff in co rp o rates her resp o n sesas se t fo rth in P arag rap h “3 ” h erein ab o v e. 8. S tate w hat law s o f th eS tate of N ew Y o rk w ere alleg ed ly v io la te d by th e an sw erin g d e fen d a n t as to : (a) T h e p erfo rm an ce o f th e p ro ced u re; N Y C R R IO P a rt 4 0 5 .1 2 (b )(5 )reg ard in g estab lish in g and im p le m e n tin g p ro ced u re fo r re p o rtin g u n u su al fin d in g s to a p a tie n t’s atten d in g p rac titio n e r o r su rg eo n . N Y C R R IO P a rt 4 0 5 .4 (a)and a il su b sectio n s th e reto re g a rd in g stan d ard s of p ra ctice an d co n d u ct of th is an sw erin g D e fe n d an t’s FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 medical staff and those physicians with staff privileges at their institution. (b) Any other treatment, administration, care, observation or management performed by the answering defendant herein. NYCRR10 Part 405.4(c) and all subsections thereto regarding standards of patient care and the performance of accepted standards of practice, procedures and conduct of this answering Defendant's medical staff and those physicians with staff privileges at their institution. NYCRR10 Part 405.9 and all subsections thereto regarding discharge planning which meets the patient's post-hospital needs. Plaintiff required post-discharge treatment inasmuch as operative pathology indicated the specimens submitted for testing invaded the surgical margins. 9. If plaintiff will claim that the answering defendant ignored complaints, signs, symptoms; made an erroneous diagnosis; afforded improper treatment; administered improper and/or contraindicated drugs; administered proper drugs in an incorrect dosage; failed to take or administer tests,or improperly took and administered tests, failed to perform a proper physical examination, state: (a) The complaints, signs, symptoms and conditions that the answering defendant failed to interpret properly, Pain in the chest, ribs and left side (b) the proper interpretation, which the Plaintiff claims should have been reached or made; Upon information and belief, this defendant properly diagnosed a tumor but failed to properly intervene, advise, treat and provide follow up monitoring and intervention as complained of herein. (c) in what respect the diagnosis was erroneous and incorrect; Upon information and belief, this defendant properly diagnosed a tumor but failed to properly intervene, advise, treat and provide follow up monitoring and intervention as complained of herein. (d) the claimed correct diagnosis; desmoid tumor fibroblastic myofibroblastic neoplasm 5 FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 (e) th e im p ro p er trea tm e n t w h ic h it is alleg ed w a s ren d ered ; A re q u e st fo r sp ecific d ep artu resin clu d in g a d e m a n d fo r in fo rm atio n re g ard in gth e p e rfo rm a n c e of te sts or p ro ced u res in a b ill of p artic ulars is e v id e n tiary (see, Patterson v. Jewish Hosp. & Med. Center ofBrooklyn, 9QPONMLKJIHGFEDCBA 4 M is c2d 680, 405 N YS2d 194 (S u p . C t. K in g s C o. 1 9 7 8 ), a ffd 65 AD 2d 553, 409 N YS2d 124 (2 ^ D e p ’t 1 9 7 8 ), Deilaglio v. Paul & Kingsboro Medical Group, P.C., 250 AD 2d 806, 673 N YS2d 212 (2 d D e p ’t 1 9 9 8 );Heyward v. Ellenville Community Hospital, 215 AD 2d 967, 627 N YS2d 167 (3 ^ ^D e p ’t 1 9 9 5 ). H o w ev er, w ith o u t w aiv in g a n y rig h ts to o b je ct to th is d em an d an d /o r to n o t p ro v id e a resp o nse, P la in tiff alleg es th a t th is D efen d an t failed p ro p e rly d eterm in e p re -o p e ra tiv e ly th e e x ten to f w h ic h th e su rg ical in terv e n tio n sh o u ldbe as w e llas any in trao p erativ ete stin gin th e n a tu reof fro z e n p ath o lo g y ; fa ile dto w id ely ex cise, re-ex c ise an d re te st th e tu m o r m a rg in s in tra o p e ra tiv e ly on M a rc h 19, 2007 an d /o r th e re a fte r to en su re c le arm a rg in sand rem o v al o f th e e n tire tu m o r an d a n y p o te n tia l ad jacen t tu m o r in v o lv e m en t (f) th e tre atm e n tw h ic h it is c la im e dth e P lain tiffsh o u ld have b een ren d ered D e fen d a n t is e n title d to o n lyg en eral statem en ts o f n eg lig en ce as set fo rth ab o v e;fu rth ersta te m e n ts w o u ld be ev id en tiaryin n a tu rean d not th e p ro p e r sco p e of P la in tiffs V e rifie dB ill of P articu lars. Cirelli v. Victory Memorial Hospital, 45 A D 2d 856, 358 N Y S2d 537 Nelson (1 9 7 4 ); v. NYU Medical Center, 51 A D 2d 352, 381 N Y S2d 491 Abrams (1 9 7 6 ); v. Long Island Jewish Hillside Medical Center, 8 4 A D 2d 5 5 4 ; Liddell v. Cree, 2 3 3 A D 2d 593, 594; Hayward v. Ellenville Community Hosp., 215 A D 2d 967. In a m e dica l m alp ractice actio n ,as in an y a c tio n fo r p erso n al in ju ries, th e b illo f p articu lars“re q u ire s o n lya ‘[g je n e ra l statem en t o f th eacts or o m issio n s co n stitu tin gth e n e g lig e n c e {Rockefeller c la im e d ” ’ v. Hwang, 106 A D 2d 817, 818, N Y S2D 206 (3 ™ D e p ’t1984) q u o tin g CPLR 3 0 4 3 [a][3 ]; see, Coughlin v. Festin, 53 A D 2d 800, 8 0 1 -0 2 385 N Y S2d 166, 1 6 8 -6 9(3^*^ D e p ’t Fedlock 1 9 7 6 ); v. Albany Medical Center, 2 5 8 A D 2d 772, 685 N Y S2d 844 (3^^ D e p ’t 1 9 9 9 ). H o w ev er, w ith o u t w a iv in g a n y rig h ts to o b ject to th is d em an d an d /o r to n o t p ro v id e a resp o nse. P la in tiff alleg es th a t th is D efen d an t failed to reco m m en d an d a rra n g efo r n e o ad ju v a n t ch em orad io th erap y , arran g e fo r an d req u e st a n in tra o p e rativ e su rg ical p a th o lo g y re p o rt o f th e 6km, tu m o rand rib sectio n s,fa ile dto im m ed iately re-ex cise th e FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 tumor site and adjacent areas and failed to recommend and refer the Plaintiff for post-surgical adjuvant chemo-radiation therapy and/or radiation immediately after the surgical procedure perfouned in March 19, 2007. (g) the generic and trade name of each and every improper and/or contraindicated drug which was administered or prescribed; Not known to be applicable at the present time (h) the name of each improper drug allegedly administered incorrectly or in the incorrect dosages; Not known to be applicable at the present time (i) the manner in which it is alleged each such drug should have been administered and/or the incorrect dosage thereof; A request for this information is considered evidentiary in nature and does not require disclosure within the scope of a Bill of Particulars (see, Patterson v. Jewish Hosp. & Med. Center of Brooklyn, 94 Misc 2d 680, 405 NYS2d 194 (Sup. Ct. Kings Co. 1978), affd 65 AD2d 553, 409 NYS2d 124 ( Dep't 1978), Dellaglio v. Paul & Kingsboro Medical Group, P.C, 250 AD2d 806, 673 NYS2d 212 (2d Dep't 1998). Without waiving any right to object to the same, Plaintiff alleges that this Defendant, through its agents, servants and/or employees failed to consider in failing to consider and advise of pharmacological therapy in the nature of non-steroidal anti-inflammatory drugs (aspirin, Advil), Clinoril®, sulidae, COX-2 inhibitors, tamoxifen, Nolvadex®, toremifene, raloxifene and failed to consider and/or advise of available intralesional therapies. (j) the name and/or description of each and every test defendant failed to take or administer; A request for information relating to the performance of test or procedures including x-rays and radiographic studies is also considered evidentiary in nature and does not require disclosure within the scope of a Bill of Particulars (see, Patterson v. Jewish Hosp. & Me Center of Brooklyn, 94 Misc 2d 680, 405 NYS2d 194 (2"' (Sup. Ct. Kings Co. 1978), affd 65 AD2d 553, 409 NYS2d 124 Dep't 1978), Dellaglio v. Paul & Kingsboro Medical Group, P.C., 250 AD2d 806, 673 NYS2d 212 (2d Dep't 1998). 7 FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 (k) the name of each and every test the defendant improperly took or administered; Not known to be applicable (1) the manner in which itis claimed each such test should have been administered or taken; Not known to be applicable (m) a description of the physical examination performed; A bill of particulars is not required to provide evidentiary information. Graves v. County of Albany, 278 A.D.2d 578, 579, 717 (3d N.Y.S.2d 420 Dep't 2000). (n) the manner in which it is claimed each such physical examination should have been performed. A bill of particulars is not required to provide evidentiary information. Graves v. County of Albany, 278 A.D.2d 578, 579, 717 (3d N.Y.S.2d 420 Dep't 2000). 10. If Plaintiff will claim that the answering defendant improperly performed a surgical procedure or procedures; performed a surgical procedure that was contraindicated and/or unnecessary, state: (a) The name of the surgical procedure and the date that it was performed 10* 11* Thoracotomy, exploration and resection of the and lower ribs for removal of a desmoid tumor fibroblastic myofibroblastic neoplasm on March 19, 2007 (b) Set forth what surgical procedures were contraindicated and/or unnecessary. Not claimed; Plaintiff alleges that this Defendant failed to widely excise, re-excise, test, examine and retest the tumor margins intraoperatively on March 19, 2007 and/or thereafter to ensure clear margins and removal of the entire tumor and any potential adjacent tumor involvement (c) Set forth in what manner the aforesaid surgical procedure(s) was contraindicated; 8 FILED: KINGS COUNTY CLERK 11/22/2022 01:15 PM INDEX NO. 11331/2009 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/22/2022 N ot claim ed ; P lain tiffalleg es th a t th is D efen d an tfailed to w id ely ex cise, re-ex cise, test, ex am in e an d re te st th e tu m o r m arg in s in tra o p e ra tiv e ly on M arch 19, 2007 an d /o r th e re a fte r to en su reclear m a rg in san d rem o v al o f th een tiretu m o ran d an y p o ten tial
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Once documentation is provided, the party challenging the costs must providecontradicting evidence and the trial court will determine if the disputed costs were reasonablynecessary. (Id. at 1265-1266.) If a cost claimed is expressly allowed by a statute, the partyseeking to tax the costs must show that it was unnecessary and unreasonable; however, wherecosts are not expressly allowed by statute, the burden is on the party claiming the costs to showthe charges were reasonable and necessary. (Foothill-De Anza Community College Dist. v.Emerich (2007) 158 Cal.App.4th 11, 29.)Moving PapersPlaintiffs seek to strike or cost the following: 1. Defendants’ entire memorandum of costs because there are no receipts or invoices to support it and because the claimed costs were not “reasonably necessary to the conduct of the litigation” per C.C.P. section 1033.5(c)(2). 2. All costs that predate Defendants’ 998 offers to compromise because per C.C.P. section 998(c)(1), “if an offer made by defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall pay the defendant’s costs from the time of the offer.” 3. Item 1 for the $120.00 claimed in filing costs because Plaintiffs argue that there is no statutory authority for the recovery of filing fees for a motion to continue the trial date. 4. Item 8 for the $48,797.66 claimed in expert witness fees because these costs were not reasonably necessary to conduct the litigation per C.C.P. sections 1033.5(c)(2)-(3). 5. Item 11 for court reporter fees in the amount of $13,114.89 because costs relating to transcripts not ordered by the court are excluded by C.C.P. section 1033.5(b)(5). 6. Item 16 for anatomy warehouse fees claimed in the amount of $134.13 because the item should have been listed under Item 13 instead of 16 and the cost was not reasonably necessary to the conduct of the litigation.Defendants oppose the motion for the following reasons: 1. Plaintiffs’ objection and request to strike the entire cost memorandum is without merit because per authority cited by Defendants, “there is no requirement that copies of bills, invoices, statements or any other such documents be attached to the memorandum.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) 2. Defendants obtained a judgment more favorable than Defendants’ section 998 offer to compromise to Plaintiffs, which offers Defendants argue were reasonable and made in good faith at the time. 3. Plaintiffs’ objection to Item I for filing fees and costs is without merit because they are expressly allowed by C.C.P. section 1033.5(a)(1). 4. Plaintiffs’ objection to witness fees is without merit because these are recoverable under section 998 because they were incurred in the defense of the action and Plaintiffs have not sufficiently demonstrated the fees were unreasonable. Under section 998, a court may award a prevailing party expert witness fees incurred in preparing of or during trial. 5. Plaintiffs’ objection to Item 11 is without merit because court reporter fees are specifically recoverable under C.C.P. section 1033.5(a)(11) and Government Code 68086(c). 6. Defendants argue Plaintiffs’ objection to Item 16 is without merit because costs incurred for models and exhibits are expressly allowed under C.C.P. section 1033.5(a)(13). The Anatomy Warehouse fee of $134.13 was specifically expended for the model and trial exhibit “Colon Anatomy Model with Pathologies.”Application 1. Per Ladas and Jones, when items appear to be proper charges on the face of a verified memorandum of costs, then it is prima facie evidence that they are proper and the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. Here, Plaintiffs have not demonstrated that the entire memorandum of costs is without merit just because receipts were not attached. This motion is DENIED as to this request to strike the entire memorandum of costs. 2. Plaintiffs must pay costs from the time Defendants made an offer to compromise in good faith if later Defendants obtained a more favorable judgment than the offer to compromise that was made. However, this does not preclude Defendants from also seeking fees and costs incurred prior to the offer to compromise if the costs were reasonably necessary to conduct the litigation and are allowable by statute. The motion is DENIED as to this request to strike costs predating Defendants’ offers to compromise. 3. Per C.C.P. section 1033.5(c)(1), costs are allowable if incurred. Defendants incurred $120.00 in costs for filing of the motion, so the Court will allow it. The motion is DENIED as to this request to strike filing costs. 4. Per C.C.P. section 998, when an offer to compromise is made by a defendant and not accepted and plaintiff later fails to obtain a favorable judgment, then the Court may require the plaintiff to pay post-offer expert witness fees. Section 1033.5(c)(1) does not allow fees of experts not order by the court, unless they are expressly authorized by law, such as section 998. For these reasons, the Court DENIES Plaintiffs’ motion as to this request to tax expert witness fees. 5. Court reporter fees as established by statute, such as the government code section cited by Defendants, are authorized by C.C.P. section 1033.5(a)(11). On this basis, the Court DENIES Plaintiffs’ motion as to this request to tax court reporter fees. 6. The Court finds the cost of $134.13 expended for the model and trial exhibit “Colon Anatomy Model with Pathologies” a reasonable expense necessary to conduct litigation and an allowable cost under C.C.P. section 1033.5(a)(13). Therefore, the motion is DENIED as to Item 16. CONCLUSIONBased on the foregoing, Plaintiffs’ motion is DENIED in its entirety. Defendants shall submit awritten order to the Court consistent with this tentative ruling and in compliance with Rule ofCourt 3.1312(a) and (b).
Ruling
Gjetley vs. Sandoval
Jul 22, 2024 |23CV-0203634
GJETLEY VS. SANDOVALCase Number: 23CV-0203634Tentative Ruling on Discovery Motions: Defendant Gary Sandoval moves for an order deeming Defendant’sRequests for Admissions, Set One admitted based on a lack of response from Plaintiff. In a separate motion,Defendant moves for an order compelling responses to Defendant’s Form Interrogatories, Set One, SpecialInterrogatories, Set One, and Request for Production, Set One. The motions were originally noticed for a hearingon June 10, 2024. On June 10, 2024, the Court continued the hearing to today’s date because Plaintiff LesterGjetley had filed a document titled “Plaintiff Lester Gjetley Response to Motion and Discovery” that included acopy of what appear to be verified responses to Requests for Admissions, Set One and Special Interrogatories,Set One. Plaintiff was ordered to serve Defendant with these responses. It is unclear if that has occurred. On July15, 2024, as directed by the Court, Defendant filed a Brief Statement Regarding Outstanding Discovery Issues.This Statement is not supported by evidence. There are procedural and evidentiary defects on both sides of thesemotions. The Court exercises its discretion to consider the merits of the motions despite these defects.A party has thirty days after service to respond to a Request for Production, Request for Admissions, FormInterrogatories, or Special Interrogatories. See CCP §§ 2031.260(a), 2033.250(a), and 2030.260(a). Notproviding a timely response to propounded discovery results in a waiver of objections. CCP §§ 2031.300(a).2033.280(a), and 2030.290(a). If a party to whom a discovery request is directed fails to serve a timely response,the party propounding discovery may move for an order compelling a response. CCP §§ 2031.300(b) and2030.290(c). For Request for Admissions specifically, the party can move for an Order that the Request forAdmissions be deemed admitted. CCP § 2033.280(b). “The court shall make this order, unless it finds that theparty to whom the requests for admission have been directed has served, before the hearing on the motion, aproposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP§ 2033.280(c).Motion for Order Deeming Admitted Truth of Facts.Requests for Admissions. Plaintiff filed verified response to Requests for Admissions, Set One on May 28, 2024.Plaintiff was ordered to serve these on Defendant. It is unclear whether Plaintiff did so as there is no proof ofservice. However, the Court made it clear in its June 10, 2024, tentative ruling that a response to Requests forAdmissions, Set One had been filed. Even if these responses may have not been served prior to the June 10, 2024,hearing, they were filed and available in the court file. Defendant presented no argument regarding whether theRequests for Admissions responses were in substantial compliance. As Plaintiff filed verified responses prior tothe hearing, the Court DENIES Plaintiff’s request for the Defendant’s Requests for Admissions, Set One to beadmitted. It is mandatory that the Court impose a monetary sanction on the party whose failure to serve a timelyresponse to requests for admission necessitated this motion. CCP § 2033.280(c). The Court imposes monetarysanctions against Plaintiff in the amount of $585 which is comprised of a $60 filing fee and three hours of attorneytime at $175 per hour.Motion for Order Compelling Plaintiff to Answer Form Interrogatories, Special Interrogatories, and Respond toRequest for Production.Form Interrogatories. It appears from Defendant’s Statement filed on July 15, 2024 that verified responses wereprovided as Defendant wrote, “but his verified response to Form Interrogatory 11.0 omits any mention of thissuit.” A lack of service of verified responses is what the original motion alleged. If Plaintiff has served verifiedresponses and Defendant deems them to be insufficient, Defendant may file a motion compelling further responsesafter sufficient meet and confer efforts. In order for the Court to rule on such a motion, the Form Interrogatoriesand responses would need to be provided to the Court. As it appears that Plaintiff responded to FormInterrogatories, Set One, the Court DENIES this request as moot. If the Court is incorrect and Plaintiff did notserve responses to Form Interrogatories, Set One, Defendant may raise the issue at the hearing.Special Interrogatories. Verified responses to Special Interrogatories, Set One were filed by Plaintiff on May 28,2024. As discussed above regarding the Requests for Admissions, these were in the court file. If Defendantdeems the response to be insufficient, Defendant may file a motion compelling further responses after sufficientmeet and confer efforts. As Plaintiff responded to Special Interrogatories, Set One, the Court DENIES this requestas moot.Request for Production. It appears from Defendant’s Statement that Plaintiff has not formally responded toRequest for Production, Set One but did provide some documents. Despite a partial production, Defendantmaintains that many records in possession or available to Plaintiff have not been provided. The Court finds goodcause for each of the categories listed in Request for Production, Set One. Defendant’s motion is GRANTED asto the Request for Production. Plaintiff is ORDERED to provide a verified response to Request for Production,Set One and produce all responsive records within twenty days of the filing of the Notice of Entry of Order.Sanctions. CCP §§ 2031.300(c) and 2030.290(c) only provide for sanctions when an unsuccessful opposition ismade, however, the Court may award sanctions under the Discovery Act in favor of a party who files a motion tocompel discovery even when no opposition was filed. CRC 3.1348. As it appears that Plaintiff has still not serveda verified response to Request for Production, Set One, the Court finds that sanctions are appropriate. The Courtimposes monetary sanctions against Plaintiff in the amount of $410 which is comprised of a $60 filing fee andtwo hours of attorney time. The third hour requested is not awarded as time to attend the hearing has already beenaccounted for in Defendant’s Motion for Order Deeming Truth of Facts.In the Statement filed by Defendant on July 15, 2024, Defendant requested that Plaintiff be ordered to sit foranother deposition at Plaintiff’s expense. This request is not properly before the Court and will not be addressed.Defendant did not provide proposed Orders as required by Local Rule of Court 5.17(D). Defendant is to providea proposed Order for each motion that is consistent with the Court’s ruling.
Ruling
Perez, Willam Jr. et al vs. Johnson, Christopher Paul
Aug 05, 2024 |S-CV-0052521
S-CV-0052521 Perez, Willam Jr. et al vs. Johnson, Christopher PaulNo appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Johnson, Christopher PaulAdditionally, no proof of service has been filed as to Defendant(s): Johnson,Christopher Paul
Ruling
Michael Mitchell individually and as the successor in interest to Frankie Joe Mitchell, Jr. et al. vs Miguel Rubio Rojo dba M R Transport, an individual and business entity et al.
Jul 24, 2024 |STK-CV-UAT-2021-0002615
Parties to appear in person or remotely. Department 10C is open for in person appearances. Should counsel/parties prefer to appear remotely, follow the instructions below. There is a dedicated conference bridge lines for Dept 10C. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept 10C: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6937 and Pin # 6822.
Ruling
BURT ORTWICK HOLDINGS, INC. vs PRUDHOMME
Jul 27, 2024 |CVSW2310633
BURT ORTWICK MOTION TO STAY BY GREGORY J.CVSW2310633 HOLDINGS, INC. VS PRUDHOMME, PRUDHOMMEPRUDHOMME ASSOCIATES C.P.A., INC.Tentative Ruling:The Motion is DENIED.The court does not see any prejudice in denying the Motion. The key issues for the caseare heavily entwined with the IRS decision. If the IRS accepts Burk Ortwick’s amendedtax returns and issues its requested refund, the only damages Plaintiffs can prove areamounts paid to Defendants and costs to correct Defendants’ mistakes. If the IRS rejectsBurk Ortwick’s amended tax returns and refuses to issue a refund, Plaintiffs’ ability toprove causation and/or damages may hinge on the IRS’ reasons for the rejection, e.g.,whether the rejection is based on errors made by Defendants or for some other reason.A stay appears pragmatic and prudent, pending the IRS’ determination of Plaintiffs’amended tax returns. Although some issues of liability (e.g., duty and breach) can belitigated now, Plaintiffs concede that the full extent of Defendants’ liability cannot be“realized until the amended returns are processed by the IRS.” (Opposition, p. 6.)The calling of two different panels for this case is illogical when the causation evidence isso intermixed with the damages. It will not promote judicial economy.
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