Section 998 Fee Shifting Justified One Award, While Trial Court Discretion Allowed Award For Judgment Below Unlimited Jurisdictional Threshold.
It often pays to request the trial court to amend a judgment to reflect what was really awarded by a jury. In this case, the addition of a property loss award of about $4,500 meant that a plaintiff beat a 998 offer so as to be entitled to a costs award. The other plaintiff, while obtaining an award below $25,000 in an unlimited jurisdiction case, still garnered costs based upon a trial court’s discretion under a specific statute.
The case where these results occurred is Welsh v. Ramos, Case No. B223507 (2d Dist., Div. 8 Apr. 14, 2011) (unpublished), where plaintiffs were awarded routine costs as the prevailing parties.
There, one plaintiff garnered a jury award of $3,721 and another plaintiff was awarded $22,121 (with the latter amount including a $4,431 property loss component). First plaintiff then successfully amended the judgment to reflect that the property loss component was also jointly and severally awarded to both her and the second plaintiff. This made a difference, because that meant first plaintiff beat a defense 998 offer of $7500. The appellate court rejected a defense contention that first plaintiff had been paid for the property loss, based on a lack of proof before the trial court. Because the 998 offer covered all claims, it certainly encompassed the property loss component putting first plaintiff over the 998 threshold.
That left the matter of the costs award to the second plaintiff, with the defense arguing that costs should have been denied to plaintiff because his award in the unlimited case was below the $25,000 jurisdictional threshold. The problem with this argument was that the lower court has discretion to deny costs, with the record showing that the judge did exercise his discretion to actually award costs despite the fact the case could have been brought in limited court. (Code Civ. Proc., § 1033(a).)
An additional lesson arises from this case. Costs of $4,092 were awarded to plaintiffs, despite the fact that they only requested $2,314. However, because the defense did not raise this argument, the appellate court deemed it to have been forfeited–although it appears that this would have resulted in a costs reduction if the argument had been made. Moral to the story–raise such facial clerical error arguments in your appellate papers.