Failure to Appeal Earlier Judgment Was Critical, With Motion to Correct Not Being the Right Move.
Boteach v. Botach, Case No. B224823 (2d Dist., Div. 4 Feb. 24, 2011) (unpublished) is interesting for purposes of demonstrating that a litigant not liking an earlier costs ruling needs to appeal or bring a motion to vacate. A motion to correct an earlier costs order is not the way to proceed, ruled the appellate court, because it sought to correct judicial rather than clerical error. The way to correct judicial error would have been either an appeal or a motion-to-vacate route. (The case involved dueling costs award of a substantial nature, with $80,969.42 awarded to plaintiff and against one defendant and with $374,502.47 awarded to all defendants and against plaintiff in a case where she recovered $250,000 against one defendant only, and with defendants serving a rejected group §998 offer of $400,000 to plaintiff, each party bearing respective costs.)
However, the appellate court also went on to address some costs/CCP § 998 issues that often recur, showing that the impact of section 998 needs to be carefully explained to clients. Here are the other gems from this unpublished decision:
*Plaintiff still prevailed against the one defendant because she obtained a “net monetary recovery” under CCP § 1032(a)(4), (b), even though the one defendant prevailed on the majority of the claims asserted (Mitchell v. Olick, 49 Cal.App.4th 1194, 1198 (1996));
*Even though plaintiff’s recovery was less than the one defendant’s group § 998 offer (with that defendant’s post-offer costs exceeding the amount of the judgment plus plaintiff’s pre-offer costs), plaintiff is still entitled to recover pre-offer costs under section 1032 (Scott Co. v. Blount, Inc., 20 Cal.4th 1103, 1108-1112 (1999));
*CCP § 998(e)’s offset provision–meaning the defense costs award should be setoff from the plaintiff’s judgment and costs award–is mandatory, but only if the trial court has been supplied the information to determine the amount (Fundamental Investment etc. Realty Fund v. Gradow, 28 Cal.App.4th 966, 974-975 (1994)); and
*The validity of multi-defendant offers where liability is not joint and several has not been finally resolved. (Compare Persson v. Smart Inventions, Inc., 125 Cal.App.4th 1141, 1169-1172 (2005) [joint offer valid by defendant shareholder and his wholly owned corporation valid, although corporation had no potential liability for plaintiff’s fiduciary duty breach claim] with Taing v. Johnson Scaffolding Co., 9 Cal.App.4th 579, 584 (1992) [where each defendant is only jointly liable for the plaintiff’s economic damages but severally liable for noneconomic damages in proportion to fault, the validity of joint offers is questionable].)