Costs Recovery Was Void Under CCP § 473(d), With A Remand Ordered To See If Other Costs Were Allowable.
Warren v. Shahar, Case No. B339274 (2d Dist., Div. 4 Mar. 11, 2026) (unpublished) illustrates how a costs memorandum likely needs to be filed separately when there are separate parties involved and CCP § 998 offers are only made to certain parties.
Defendants/cross-complainants defensed plaintiff’s complaint, but they won on a cross-complaint against a new cross-defendant Ms. Shahar to the tune of $600,000, which she eventually paid. Defendants had made a 998 offer to the plaintiff, although one was never sent to Ms. Shahar relating to the cross-complaint. Defendants/cross-complainants filed an un-apportioned costs memorandum as against all opposing parties, with Ms. Shahar ignoring it because she did not realize that it was a combined memorandum involving both the complaint and cross-complaint. $175,195.47 were the costs in the memorandum, $107,476.25 of which comprised expert witness fees relating to the 998 offer rejected by the losing plaintiffs. The lower court denied Ms. Shahar’s CCP § 473 motion, prompting an appeal.
The 2/4 DCA reversed the expert witness fees award as a matter of law. It found that these costs were not allowable against Ms. Shahar because the 998 offer was not sent to her, such that the trial court lacked jurisdiction in the fundamental sense to award these void costs. (See Selma Auto Mall II v. Appellate Dept., 44 Cal.4th 1672, 1684; Moore v. Kaufman, 189 Cal.App.4th 604, 614, 616 (2010).) Besides striking the expert witness fees from the judgment as a matter of law, the panel found it appropriate to remand so that the lower court could determine if the remaining costs were allowable against Ms. Shahar.