No Costs Allocation Between Plaintiffs Required, 998 Offer Shifted Expert Witness Fees, And Prosecution Of CLRA Claim At Trial Was Not In Good Faith.
Foss v. San Antonio Community Hospital, Case No. E057236 (4th Dist., Div. 2 July 28, 2015) (unpublished) was a case prosecuted by plaintiffs against medically affiliated defendants under various tort and the Consumer Legal Remedies Act (CLRA). After plaintiffs were nonsuited at trial, various defendants obtained an award of routine costs, expert witness fees (pursuant to a CCP § 998 offer), and CLRA attorney’s fees which are only awarded to a prevailing CLRA defendant if the action was not prosecuted in good faith.
All of these results held up on appeal.
The costs were properly granted, with an agreement by one defendant to waive costs for dismissal of one concealment claim not barring costs recovery on other claims. No allocation of costs between the plaintiffs was required because they were unified in interest (or “joined at the hip”) such that the entirety of costs could be awarded against all plaintiffs. (Acosta v. SI Corp., 129 Cal.App.4th 1370, 1376 (2005).)
Expert witness fees correctly were awarded to the defendants based on cost-shifting feature of CCP § 998. Even though there was no acceptance line in the 998 offer (a requirement now), the offers were sent before this requirement was mandated after January 1, 2006. The fact the defense offered to waive costs in return for a dismissal did not make the offer unreasonable given that defendants ultimately won in a case with some problems.
That brought the appellate court to the CLRA fees issue. The trial judge only awarded hospital $4,320 in fees out of a requested $23,256, finding no bad faith prosecution at stages where a demurrer was overruled and a summary judgment denied in plaintiffs’ favor. However, once the matter got to trial, the lower court felt that the prosecution was no longer in good faith as shown by the ultimate result—with the appellate court agreeing that fees were justified at this juncture at a reduced amount. (NOTE–CLRA fees awarded to a prevailing defendant and against an unsuccessful plaintiff are scrutinized under a subjective test, see Corbett v. Hayward Dodge, Inc., 119 Cal.App.4th 915, 924 (2004).)