Playing Cute With Business Records Admissibility Issues Might Lead To RFA Sanctions.
In Vargas v. Gallizzi, Case No. B317540 (2d Dist., Div. 7 Oct. 13, 2023) (published), personal injury plaintiffs prevailed against defendant but only obtained jury verdicts amounting to $30,000 based on a prior appeal and subsequent jury verdict. But that then led to the real contest: who gets RFA denial costs-of-proof sanctions and who gets trial costs, including expert witness fees. Well, in the end, this was a split verdict, although plaintiff did get a remand to show they were entitled to RFA costs-of-proof sanctions.
The lower court denied RFA costs-of-proof sanctions on the principal ground that its ruling at a pretrial hearing that medical records fell within the business records exception for admissibility purposes was not made “at trial.” The appellate court observed that there was no “at trial” requirement under the sanction statute, such that plaintiffs did meet the threshold by proving the matters set forth in the documents. They will get another shot at these costs-of-proof sanctions, with their initial request being around $350,000.
Because plaintiffs did not beat a defense section 998 offer, an expert testifying over two days allowed the defense to recover $12,000 as costs, and the appellate court also determined that real-transcription fees are allowable as costs in the lower court’s discretion. Those costs awards were affirmed on appeal.