After The Lower Court Erred In Not Taxing Some Routine Costs, Especially Some Conceded By The Defense As Being Erroneous, The Costs Judgment Had To Be Modified On Appeal.
Reyes-Gonzalez v. Color Marble, Inc., Case No. B350612 (2d Dist., Div. 7 Feb. 17, 2026) (unpublished) involved a case where plaintiff was “defensed” by the defendant, after rejecting a CCP § 998 offer proposing to have the case dismissed in return for a waiver of fees and costs by the defense. The lower court found the 998 offer valid, and it awarded $229,559.35 in routine costs based on the 998 cost-shifting despite the defense lowering its costs request to $202,881.30 based on certain errors.
The 2/7 DCA, in an opinion authored by Justice Segal, agreed the 998 offer was reasonable/made in good faith and further agreed that some of the costs awarded by the lower court were improper.
The 998 offer was valid because plaintiff could not rebut that the “no liability” determination for the defense was a prima facie indication that the offer was reasonable. The offer had teeth, because a waiver of fees/costs in a weak case frequently is a very good offer to compromise.
Here were the costs which required further reductions: (1) pre-offer expert witness fees had to be excluded; and (2) various items of costs which were higher than the amounts actually paid by defense counsel. The appellate court confirmed that expenses relating to technical support for showing trial exhibits to jurors/making PowerPoint presentations, using rental equipment for those activities, renting an off-site “war room,” and incurring certain travel expenses are compensable, if reasonable and necessary, under CCP § 1033.5(a)(13). At the end of the day, the judgment had to be modified to allow costs of $154,457.23 to the defense, still illustrating the power of 998 cost-shifting.