Reversal of Costs Based On Invalid Offer Occurred, While Another Cost Award Sustained Because 998 Offer Made In Good Faith/Reasonable in Nature.
Our local Santa Ana appellate court decided Puerta v. Torres, 195 Cal.App.4th 1267, 1273 (2011), which invalidated a CCP § 998 offer because it did not include the acceptance provision required by the 2005 amendment to section 998. The next case explored whether this “Puerta right” was waived because it was not advanced as a trial court argument in opposition to the costs award based on a successful 998 offer by the defense.
Justice Yegan, author for a 3-0 panel, in Azizad v. Feinfield, Case No. B231568 (2d Dist., Div. 6 Jan. 19, 2012) (unpublished), decided that a plaintiff losing a 998 offer rejection could still raise a Puerta right challenge even though it was not raised in the trial court. Aside from its discretion to consider a pure question of law not raised below, the appellate court found that it would be unfair to penalize plaintiff for not raising an argument clarified in Puerta way after the 998 offer was made and after the trial court ruled in favor of costs entitlement. This reversal saved plaintiff from having to reimburse one prevailing defendant for $47,425 in expert witness fees.
However, there was another defendant who did serve a separate compliant 998 offer who was awarded $16,512.50 in expert witness fees after plaintiff rejected the offer and then lost at trial. Plaintiff did not win her argument that the offer was unreasonable and made in bad faith. She had the benefit of a summary judgment expert declaration casting doubt on her case (even though the SJM was later withdrawn) such that there was information from which an informed decision could be made. (Najera v. Huerta, 191 Cal.App.4th 872, 877 (2011).) The trial court’s determination about the reasonableness of the expert fees was no abuse of discretion, and no line item individualized scrutiny was necessary. So, in the end, she was liable for the lower expert fee cost award in the case where her medical malpractice case was lost to two defendant doctors.