Cost Waiver Had Value—Over $60,000 In Costs.
Plaintiff brought suit after his vehicle collided with one of defendant’s light rail trains in Kurz v. Santa Clara Valley Transp. Auth., Case No. H039163 (6th Dist. Mar. 18, 2014) (unpublished). Plaintiff’s case was resolved adversely based on two summary adjudication motions, with the defense then seeking expert witness fees of $54,435.31, even though the total costs bill apparently exceeded $60,000. Earlier, plaintiff had turned down the defense’s 998 offer of waiving fees/costs for a zero judgment, but the defense had turned down plaintiff’s one-dollar-under $2 million 998 offer. The lower court refused to strike/tax the defense expert witness fees requested.
The expert witness fee award stuck on appeal. The reason was that the defense 998 offer was far from token, offering to waive over $60,000 in costs (expert witness fees and others). Simply because a plaintiff claims to have large damages does not render a defense offer unreasonable, especially where the defense denies liability and has good defenses which it later proves (in this one, a good causation defense).