However, Costs for Outside Counsel Research in the Guise of Expert Witness Needed to be Reevaluated.
In Azoulay v. Valley View Medical Clinic Inc., Case No. G044942 (4th Dist., Div. 3 Apr. 3, 2012) (unpublished), defendants won a partnership dispute against plaintiff physical therapist, and the trial court denied plaintiff’s motion to tax $35,740 in costs requested by defendants (mainly for expert witness fees but $20,000 for research by an outside counsel on an illegality defense) after plaintiff rejected two separate 998 offers from the defense (one to plaintiff individually and one for his affiliated business).
The motion to tax costs denial was remanded. Although the offers were valid (stand alone offers presenting no apportionment issues among multiple parties) and were not token (made fairly close to trial with plaintiff being able to pocket $20,000 and obtain a valuable costs waiver, Adams v. Ford Motor Co., 199 Cal.App.4th 1475, 1487 (2011)), the amount of the costs award had to be reevaluated. Expert witness fee are compensable upon rejection of a valid 998 offer, but the $20,000 claimed for an outside attorney doing illegality defense legal research in the guise of being an expert witness had to be examined again. Big difference between a true expert witness and someone designated as an expert but only acting as outside counsel–so, lower court look at it again to see if it was a 998 cost to be recouped (or portions thereof).