Cost or Fee Shifting Justified Under CCP § 998.
Plaintiff seeking damages in a dental malpractice case rejected a 998 offer of $25,001 inclusive of each side bearing their own costs, but was defensed after a jury trial and ordered to pay $2,850 in expert witness fees based on rejecting the 998 offer. She argued that the 998 offer was illusory, but the appellate court said “no way” in Branner v. Leizerovich, Case No. B224548 (2d Dist., Div. 8 Nov. 8, 2011) (unpublished)–especially since settlement offers need not include attorney’s fees and the jury found defendant not negligent.
Plaintiff lost a trespass/nuisance case against neighbors based on an adverse summary judgment ruling, even though plaintiff earlier rejected a zero dollar judgment 998 offer containing an express waiver of costs by the defendants. The trial court awarded routine costs to defendants. In Evans v. Wymore, Case No. B228340 (2d Dist., Div. 8 Nov. 9, 2011) (unpublished), the appellate court affirmed the costs award, determining (1) there is no exception in the costs award statute based on the health of a plaintiff who had to stop pursuing a suit so as to result in the adverse summary judgment; (2) the 998 offer was made in good faith, because it was made at a juncture where the defense could have avoided summary judgment expenses had the offer been accepted and it could have saved plaintiff from exposure for expert witness fees; and (3) government employees serving as experts can be paid more than the $35/day rate set forth in Government Code section 68093.
Fees Were Reasonable and 998 Offer Was Made In Good Faith.
Burkett v. Caffaro, Case No. B226932 (2d Dist., Div. 2 Nov. 8, 2011) (unpublished) involved plaintiffs who lost a summary judgment in a real estate purchase fraud case, with the trial court awarding the defense $147,778.75 in fees (out of a requested $153,128.75) and $10,946.41 in costs (out of a requested $11,671.33). This all happened after plaintiffs rejected a 998 walkaway offer by which the defense would waive fees and costs. Although everyone agreed there was a computation error on the “fees on fees” issue resulting in a $9,707.50 judgment correction, the remainder of the trial court’s rulings were sustained on appeal. Adequate substantiation was presented to justify the fee award, and the lower court did consider the proper lodestar factors. The 998 offer was hardly token in nature, being made one year after the initial lawsuit was filed and after the defense argued that defendants made full disclosures of the property’s condition at the time of sale (which the trial court credited, given plaintiffs’ problems of proof in showing otherwise). Finally, fees of experts not ordered by the court–although not routine costs usually–are allowable as costs when a proper 998 offer is rejected.