$10,000 Offer Not Token Where Pretrial Investigation Showed No Basis to Invalidate Will in “All or Nothing” Case.
CCP § 998 offers do not have to be substantial to survive a “good faith” test. If the offeror does adequate pretrial investigation in an “all or nothing” case, even fairly small offers will be found to be non-token in nature and will give rise to costs exposure. That happened in the next decision we look at.
In Estate of Fuller, Case No. C063407 (3d Dist. May 11, 2011) (unpublished), will contestant, in an “all or nothing” battle in which the stakes ranged from the opponents receiving a substantial estate or nothing at all, eventually lost on a summary judgment motion which was affirmed on appeal in favor of the opponents supporting the will. Winning opponents, who were more successful than their $10,000 998 offer, then sought to recover certain costs, including $4,790 in expert witness trial preparation expenses. These were awarded, with the will contestant also appealing the costs award.
The Third District sustained the costs award too.
In this one, the 998 offer was hardly token and was made in good faith. After all, opponents had investigated the matter, determined the will invalidity merits were not good, and never received any information showing their risk assessment was jaded. In fact, will contestant’s attorney admitted he had not discussed the case in any detail with his client prior to the 998 offer. Given this state of affairs, the 998 “modest” offer was justified because the defense had a principled reason to believe that they were fault free. (Culbertson v. R.D. Werner Co., 190 Cal.App.3d 704, 710 (1987).) The 998 offer was a sound basis upon which to award costs, leaving the expert services compensable within the capable discretion of the trial court. Nothing wrong here, ruled the appellate court.