Case Remanded To Consider The Defense Request For $288,733.55 In Expert Witness Fees.
CCP section 998 can be a game changer, as it was in this case. Plaintiff rejected a substantial 998 monetary offer, was defensed at trial, and will be subject to some imposition of expert witness fees incurred by the defense. The dramatic shift in the “court scape” by a 998 offer should never be overlooked.
In Becker v. Artisanal Brewers Collective, LLC, Case No. B340792 (2d Dist., Div. 4 Sept. 1, 2026) (unpublished), plaintiff was injured in a bar dart accident, suing defendants bar and the dart thrower. Bar made a CCP section 998 offer of $1 million, which was rejected by plaintiff. The lower court refused to grant terminating sanctions against bar, but it did instruct the jury about spoliation of evidence relating to some surveillance camera footage. The jury returned a defense verdict in favor of both defendants. Bar sought to recover $288,733.55 for the fees of six expert witnesses. The lower court determined that the 998 offer was invalid, principally because plaintiff could not evaluate the worth of the offer given the subsequent (not pending) terminating sanctions made later in the case. It taxed the defense expert fee request in entirety.
The 2/4 DCA reversed and remanded for the lower court to determine what expert witness fees should be awarded because they were reasonably necessary for the litigation. The main flaw was that the trial judge looked at post-offer circumstances, even though the law requires that the 998 offer is scrutinized at the time it is made. The terminating sanctions request was not pending at the time of the offer, so it was irrelevant. The proper focus is on the offer’s worth, not the case’s worth—the offer’s worth was $1 million, so it was valid. The offer was reasonable and made in good faith as a matter of law: it was made 5 years after the complaint was filed, and it was reasonable because real money was being offered even though the bar had good arguments that it was not liable. This was all the more so here, where plaintiff gambled on a verdict over $1 million, losing that gamble in big time fashion.