Upshot Is What Prevailing Defendant On Complaint Entitled To 998 Expert Witness Fees.
“Dueling” 998 offers at play under a complaint and a cross-complaint were the subject of scrutiny in Horn v. Rand, Case No. B255051 (2d Dist., Div. 5 June 17, 2015) (unpublished).
Legal malpractice plaintiff failed to accept defendant attorney’s 998 offer, with a jury subsequently finding attorney not negligent. Defendant attorney actually sent two 998 offers, one to settle plaintiff’s legal malpractice claim another to settle the cross-claim for unpaid fees on certain stated terms, even though the cross-complaint was dismissed without prejudice at trial. Defendant moved to recover $100,898.09 in 998 costs/expert witness fees, with plaintiff arguing that the defense 998 was in bad faith and that the lower court had to concurrently consider attorney’s cross-claim 998 offer in determining whether the defense offer to settle on the complaint was reasonable in nature. The defense won all of the requested costs/expert fees, prompting an appeal by plaintiff.
It was unsuccessful. The 998 defense offer on the complaint was certainly reasonable: it was made close to trial so everyone had information to evaluate it; it was not too token because it only offered 7% of plaintiff’s claimed damages given plaintiff had a problematic case; and it was vindicated by the actual no malpractice liability adjudication.
Because neither of the section 998 “dueling” offers were contingent on each other, it was proper to address each separately—put another way, there was not just “one” offer to be evaluated.