Second District, Division 2 Rejects Suggestion Trial Court Cannot Award 998 Costs.
This next one really involves a power challenge—can a trial court award postarbitration costs to a winning arbitration party based on a rejected Code of Civil Procedure section 998 offer? You betcha, ruled the appellate court in the next case we examine.
In Baker v. Wu, Case No. B209326 (2d Dist., Div. 2 Oct. 29, 2009) (unpublished), plaintiff won a hefty arbitration award and was later awarded $231,401.28 in costs (including expert fees) and prejudgment interest by the trial court (out of a requested $280,154.65 in costs and interest). The basis for the substantial costs award was defendant’s rejection of plaintiff’s 998 offer that was beat quite easily by the eventual arbitration award to plaintiff.
Defendant’s main challenge on appeal was that the court did not have power to award 998 costs. Not so, said the Court of Appeal.
Nothing in section 998(d) limits the court’s authority to award costs following an arbitration. In fact, both the plain statutory language and case law suggested just the opposite. (See, e.g., Pilimai v. Farmers Ins. Exch. Co., 39 Cal.4th 133, 135 (2006); Weinberg v. Safeco Ins. Co. of America, 114 Cal.App.4th 1075, 1085 (2004).)
Defendant then argued that the expert witness fees were not necessary and reasonable. However, he failed to meet his burden of showing this through any competent evidence, relying on insufficient conclusory assertions otherwise. Defendant’s assertions in points and authorities and counsel declarations did not suffice to discharge his burden in this regard. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1266 (1998).)