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California Case Summaries™
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California courts publish around 500 new civil cases each year and many of them significantly change California law. California lawyers need to know the new case law in their practice areas! 

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Were plaintiffs entitled to an award of attorney fees under Code of Civil Procedure section 2033.420 for proving the medical records were admissible as business records?

Last month, the Second District Court of Appeal addressed this issue and issue an important new decision. 

New CA Civil Procedure Decision  

Vargas v. Gallizzi (2023) _ Cal.App.5th _ , 2023 WL 6781376: The Court of Appeal affirmed in part, and reversed in part, the trial court’s post-trial orders, following a jury trial in a personal injury case where the jury awarded plaintiffs $15,125 in damages. The trial court denied plaintiffs’ request for $350,000 in attorney fees and costs pursuant to Code of Civil Procedure section 2033.420 based on defendant’s failure to admit requests for admission regarding the medical records, a timeline of treatment, and causation, and awarded defendant $28,547.66 in costs pursuant to Code of Civil Procedure section 998. The Court of Appeal disagreed, concluding that the trial court erred by denying plaintiffs’ motion for expenses pursuant to section 2033.420. Code of Civil Procedure, section 2033.420(a), provides expenses shall be awarded if the party requesting the admission “thereafter proves the genuineness of that document or the truth of that matter” and the statute contains no requirement the proof be made at trial. During a pretrial hearing the trial court ruled the medical records would be considered business records and plaintiffs therefore proved the matter. The trial court erred by finding plaintiffs were precluded from receiving cost-of-proof expenses because defendant, after the pre-trial ruling, had not disputed the medical records’ status as business records at trial. Having found plaintiffs proved the medical records were business records, section 2033.420 required expenses be awarded unless one of the exceptions was established. The Court of Appeal concluded that none were. Although plaintiffs' counsel had failed to establish the medical records were business records in a prior trial, defendant had no reasonably held good faith belief she could prevail on the merits of the business records issue. The Court of Appeal affirmed the trial court’s award of costs to defendant section 998. The case was remanded for the trial court to determine the amount to which plaintiffs were entitled for proving the medical records were business records. (C.A. 2nd, October 13, 2023.)

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I help attorneys and their clients settle cases as a mediator, fairly decide cases as an arbitrator, and fairly decide issues as a referee at ADR Services, Inc. in the areas of business, employment, insurance (bad faith, coverage, UIM) probate (trusts and estates), real property, and torts (elder abuse, medical malpractice, personal injury, product liability and wrongful death). As a Zoom expert, I conduct Zoom and in-person hearings throughout California. To schedule a matter, please contact my case managers at ADR Services, Inc., Haward Cho, (213) 683-1600, 
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Best regards,
Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services
Master Lawyer Mentoring™: Trial training & Associate training 
Publisher: California Case Summaries™
Podcaster: Trial Alchemy™
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312 | Email: [email protected] 

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