Fifth District Passes On Impact of Third District’s Opinion in Barba v. Perez.
Just to show you how California intermediate appellate opinions do indeed enter into the jurisprudential “flow” of decisions, we now can report on how another appellate court has reacted to Barba v. Perez, 166 Cal.App.4th 444 (2008), an interesting CCP § 998 decision from the Third District resulting in a split result.
The Fifth District weighed in on the impact of this prior decision in Najera v. Huerta, Case No. F058850 (5th Dist. Jan. 10, 2011) (certified for partial publication, including § 998 and costs decision).
In Najera, plaintiff was awarded $728,708.83 in an automobile-motorcycle accident case, with a new trial granted on a specific damages component only. The defense failed to accept a 998 offer, served at the time of the original summons and complaint, and then moved to tax costs after plaintiff won. The trial court granted the motion to tax costs in entirety, consisting of requests for expert witness fees and routine costs.
The trial court determination was affirmed on the costs issue.
A 998 offer must be evaluated early on, but only if the defense has a flow of sufficient information to evaluate it. Here, the facts showed that the defense did not commit error in providing an early 998 offer under the deferential abuse of discretion standard, with the opinion engaging in a scholarly review of the Third District’s decision of Barba v. Perez, 166 Cal.App.4th 444 (2008) in reaching the result–with the Fifth District suggesting it liked the dissenting viewpoint more than the majority decision in Barba. Very interesting reading as to how courts are interpreting Barba.