Matter Remanded For Defense To Seek 998 Costs, Including $96,192.86 In Expert Witness Fees.
One of the key issues in drafting Code of Civil Procedure section 998 offers is to make the offer definite enough, given there is a good body of case law offering clues on how to make offers certain in nature.
In Johnson v. Safai, Case No. G053809 (4th Dist., Div. 3 May 15, 2018) (unpublished), plaintiff sued defendant based on injuries incurred in a multi-car “back end” collision at less than 10 miles per hour. The case was expert intensive, with the jury entering a defense verdict after crediting the testimony of a defense engineer. Earlier, defendant had served plaintiff with a 998 offer, by which defendant would pay $125,000 to plaintiff, complete with a dismissal of the action, execution of “a general release of all claims,” and “inclusive of all liens in the case.”
The trial judge denied the defense’s post-trial motion to recover costs shifted under section 998, including $96,192.86 in claimed expert witness fees, based on Sanford v. Rasnick, 246 Cal.App.4th 1121 (2016).
The 4/3 DCA reversed, remanding the matter so that the trial judge could determine the expert witness fees to which the defense was entitled under section 998.
The appellate court found Sanford distinguishable, because it was a 998 offer subject to a future settlement agreement whose terms were not fully disclosed—definiteness was present, given how negotiations over settlement agreements are problematic at best. In contrast, the 998 offer in Johnson contained no indication that it extended beyond a release of the claims in the lawsuit (given other language in the offer) and included properly medical/other lienholders given that only the offeree would know what the lienholders claimed, and was a reminder that plaintiff needed pay lienholders providing services in the case (Toste v. CalPortland Construction, 245 Cal.App.4th 362, 374 (2016)).
The 3-0 decision was authored by Presiding Justice Aronson.