$10,245 Expert Fee Costs Award To One Defendant Reversed, With Appellate Court Noting Split In Intermediate Appellate Thinking But Following Persson and Kahn Over Winston Square Reasoning.
Ebert v. Press, Case No. D069615 (4th Dist., Div. 1 Dec. 21, 2016) (unpublished) is a situation where two defendants put forward a joint and several CCP § 998 offer for $20,001, an offer not accepted by the plaintiff. Later, plaintiff lost a dismissal brought by one defendant on the first day of trial but did obtain a jury verdict in her favor to the tune of $60,000 as against the remaining defendant. The dismissed defendant moved for expert witness fees, with the trial court awarding $10,245 in expert costs as against plaintiff, who nevertheless did prevail against the second defendant.
This one got reversed as a matter of law. However, the 4/1 acknowledged that there was a split in intermediate appellate thinking on whether the joint offer must beat a result with respect to all multiple defendants. Winston Square Homeowner's Assn. v. Centex West, Inc., 213 Cal.App.3d 282 (1989) did support dismissed defendant's position, while Persson v. Smart Inventions, Inc., 125 Cal.App.4th 1141 (2005) and Kahn v. The Dewey Corp., 240 Cal.App.4th 227 (2015) supported challenging plaintiff's position. The reviewing court in Ebert found Persson and Kahn more persuasive such that the $10,245 expert costs order was overturned because plaintiff did beat the 998 offer in gaining the $60,000 verdict against the second defendant.