Compensatory/Punitive Award To Winning Plaintiffs Was Only $88,270.
This next case illustrates how Code of Civil Procedure section 998 can be a true costs-shifting statute of importance, given that the expert witness fees and other routine costs outstripped the compensatory and punitive damages award to the winning plaintiffs.
In Arnold v. Padrah, Case No. A146237 (1st Dist., Div. 5 Aug. 26, 2016) (unpublished), plaintiffs sued to quiet title to a prescriptive easement and for damages caused by defendants destruction of improvements in the claimed easement, while defendants cross-complained for trespass/invasion of privacy. Plaintiffs prevailed, obtaining a $68,270 compensatory award, a $20,000 punitive damages award, and a quiet title decree, while defendants obtained nothing on their cross-complaint. Plaintiffs earlier had served a 998 offer to resolve the cross-complaint by paying $10,000, with each side bearing their own fees and costs—an offer not accepted by defendants/cross-complainants. Plaintiffs then moved for recovery of expert witness fees of $48,438.50 plus other routine costs. The defense brought a motion to tax costs, with the lower court not allowing for discovery referee expenses but awarding in full the expert witness fees and other routine costs to the tune of $112,457.89.
Defendants/cross-complainants appealed the costs award, to no avail.
The losing side’s primary challenge was that the 998 offer was not made in good faith, but that argument was rejected by the appellate court. First of all, no adequate record was presented for review, because the costs memo, motion to tax costs, and hearing transcript on the motion were not provided. Second, the fact that plaintiffs “defensed” the cross-complaint showed the offer was far from token, especially given the costs waiver which would have mitigated a lot of the costs awarded had the offer been accepted by defendants/cross-complainants.
The losing side also argued that the expert witness fees were excessive, but this did not resonate given that the opponents’ experts—an arborist, an appraiser, and a contractor—were necessary to prove plaintiffs’ case and defeat defendants’ cross-complaint. Affirmed.