Presiding Justice Perluss, on behalf of the same panel of the Second District, Division 7 (yet in two separate unpublished decisions), gives us some good teachings on routine costs and Code of Civil Procedure section 998 issues.
Costs: Mixed Result Means Prevailing Party Determination is in Lower Court’s Discretion.
In Cordier v. Swanson Realty Group, Inc., Case No. B214960 (2d Dist., Div. 7 Aug. 16, 2010) (unpublished), SRG defeated Cordier’s complaint by winning a motion for judgment on a fraudulent conveyance complaint, one that led to a dismissal of the complaint—an event that independently triggers routine costs “prevailing party” status. However, Cordier won an anti-SLAPP motion on one count in SRG’s cross-complaint, but did not prevail on the other—with SRG dismissing the other count after Cordier dismissed SRG from Cordier’s complaint, even though Cordier recovered $5,437.50 (out of a requested $10,380) in fees on the anti-SLAPP win, but never sought any cost recovery. Eventually, both sides moved for costs, but the trial judge only awarded $400 to SRG. Cordier appealed, but lost. Because the case was a mixed-results case and Cordier did recover anti-SLAPP fees under a separate scheme, the trial court did not abuse its discretion in determining that SRG prevailed in knocking out Cordier’s complaint based on the theory that its judgment had been satisfied (which, in turn, knocked out any fraudulent conveyance claim).
998: Ambiguous Offer to Joint Defendants Did Not Shift Expert Witness Fees.
Pursley v. Philippe, Case No. B209435 (2d Dist., Div. 1 Aug. 16, 2010) (unpublished) involved a case where personal injury wife won $835,369 against four jointly liable defendants (most based on vicarious liability) and personal injury husband won $25,000 against the same defendants. They appealed a denial of substantial expert witness fees as costs resulting from defendants’ rejection of their separate Code of Civil Procedure section 998 pretrial settlement offers. After all, defendants had denied wife’s offer to settle each claim for $399,999.99 and had rejected husband’s offer to settle each claim for $9,999.99. This cost denial was sustained. Reason? Plaintiffs’ 998 offers were far from certain, because one might construe wife as wanting nearly $1.6 million ($400,000 x 4) and husband wanting nearly $40,000 ($10,000 x 4). To make it clear (for example), wife should have made an unapportioned offer to the four defendants, collectively, to settle the entire action for $399,999.99 since her claims were based solely on their vicarious liability for one defendant’s negligence—an offer that need not be apportioned. (Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc., 50 Cal.App.4th 1542, 1549 (1996).) The 998 offers were uncertain and, thus, invalid as a matter of law. (Also, there is a discussion on some routine costs, but the 998 issue was the paramount one, in our view.)