Fifth District Struck $4,608.53 For Models/Blowups/Exhibit Photocopies And $2,850 Court Reporter Fee For Lack Of Particularized Detail.
The Fifth District, in Childress v. Aaron, Case No. F077027 (5th Dist. Feb. 28, 2020) (unpublished), did a nice, scholarly job of discussing Code of Civil Procedure section 998 good faith principles and Code of Civil Procedure 1033.5 costs substantiation requirements.
There, two plaintiffs brought a vehicle personal injury action against defendant, who was intoxicated and hit them, causing continuing pain and need for medical treatment based on plaintiffs’ discovery and deposition testimony. They both served $50,000 section 998 offers three and a half months after filing the complaint and extended the offers until 10 days after plaintiffs’ depositions were completed. The defense did not accept the offers, with one plaintiff netting an aggregate damage award by a jury of $71,250 while the other plaintiff netted an aggregate of $115,050. Based on “beating” the 998 offers, plaintiffs’ sought postoffer costs from defendant of $100,109.91 (which included expert witness fees of $49,320 as well as some prejudgment interest). The trial judge disallowed $276.38 in costs, but otherwise granted the request in major part. Defendant appealed.
The Fifth District affirmed, except to strike two cost items for lack of specificity by the plaintiff claimants.
Defendant could not surmount the governing abuse of discretion standard as far as whether the 998 offers were made in good faith and reasonable in nature. Because the plaintiffs obtained a more favorable judgment than the 998 offers, the ensuing judgment was prima facie evidence that the offers were reasonable. (Santantonio v. Westinghouse Broadcasting Co, 25 Cal.App.4th 102, 117 (1994).) The 998 offers were within the range of possible results given that plaintiffs continued to complain about pain despite some clinical test showing no obvious objective problems. The defense also had sufficient evidence to assess the offers, given the offers were extended until completion of plaintiffs’ depositions and discovery responses showing that plaintiffs continued to have pain/suffering.
That brought the appellate court to the defense challenges to the reasonableness and necessity of the postoffer costs actually awarded. The major items, especially the expert witness fees, were reasonable and listed on close to a line item basis. Although arguing one expert’s costs were not reasonably necessary because the jury did not ultimately award a measure of damages advocated by the expert, “[d]efendant offers no authority for the proposition that expert testimony on a measure of damages not ultimately awarded by the jury is not reasonably necessary to the conduct of the litigation”—this would be hindsight reasoning not applicable to a jury verdict. (Slip Op., p. 19.)
However, the appellate panel did strike $4,608.53 for models/blowups/exhibit copies and $2,850 for court reporter fees based on lack of substantiating detail from plaintiffs in their costs papers. Only a raw total for the first costs item was provided, which was not specific enough to show that the expenses were reasonable in nature. With respect to the court reporter fee, plaintiffs also failed to provide details or indicate how they were awardable given that the lower court did not order transcripts of court proceedings. So, with that, a postoffer costs award to plaintiffs, after a little trimming, was sustained to the tune of $92,375—almost the amount of the two 998 offers totaling $100,000.