$14,283.85 in Expert Fees Affirmed Even Though The Defense Made Modest 998 Offers.
In Patel v. Delbecq, Case No. H034417 (6th Dist. Nov. 15, 2010) (unpublished), the defense finally won a jury trial in a case where they never hit plaintiffs’ car but allegedly drove dangerously enough to cause a tire blowout in a meridian. Curiously enough, plaintiffs won a $103,892 award in a nonbinding arbitration, a result that was obviously challenged by the defense. Although the case involved a claim against another defendant for a separate accident, the defense in this one made modest CCP § 998 offers to plaintiffs in a total amount of about $12,000 (one of the claims being for personal injury and other for loss of consortium from the tire blowout incident). However, the 998 offers were a little imprecise, asking for a dismissal of the entire case but then clarifying later that the settlement only related to particular defendants rather than encompassing the defendant in the other incident. Plaintiffs did not accept the offer, were defensed by a jury, and suffered an adverse expert witness costs award of $14,283.85 plus medical records/exhibit blow-up costs.
Plaintiffs appealed.
Plaintiffs lost.
Although agreeing that the 998 offers were a little murky, the appellate court gave credence to a gestalt contractual interpretation, construing the offers in a holistic sense such that the saving language was the caveat the settlement only related to the particular defendants involved in making the 998 offers (rather than all defendants in the case).
The $12,000 in 998 offers was not viewed as unreasonable in nature, viewed from the deferential abuse-of-discretion review prism. Both parties had very differing views of what happened, with the defense being vindicated in the end. This justified the modest offers. (Colbaugh v. Hartline, 29 Cal.App.4th 1516, 1528-1529 (1994).)
Also, the amount of expert fees award was proper. Although arguing that pre-998 offer expert fees were unjustified, this one failed based on the holding otherwise in Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006). Also, "[s]ection 998 does not condition an award of expert witness costs on prior disclosure of those witnesses to the plaintiff." (Slip Opn., p. 8.)
Medical subpoena and exhibit blow-ups costs were correctly awarded, with the lower court being imbued with the discretion to factually determine if they were necessary or reasonable in connection with the overall litigation.