Fourth District, Division 3 Affirms Costs Award in Favor of Winning Individual Defendant.
If you are a plaintiff suing for employment retaliation, do not think that the suit carries little risks. Routine, non-fee costs of a substantial nature can still be assessed against you. Also, you as the plaintiff need to seriously evaluate substantial 998 offers, rather than gamble that you will do better in front of a jury. The next case illustrates these lessons well.
In Mustafa v. Sprint/Unified Mgt. Co., Case No. G038274 (4th Dist., Div. 3 Jan. 26, 2009) (unpublished), plaintiff sued his former employer on various claims and also sued his former supervisor (individual defendant Hill) for retaliation, negligence, and intentional emotion distress infliction. All claims went to the jury as against the individual defendant, who won a complete defense verdict. Defendant Hill then moved for an award of routine costs after he and employer had tendered a Code of Civil Procedure 998 offer for $1.179 million that was rejected by plaintiff employee. Because expert witness fees of about $37,000 were involved, the trial court awarded Hill costs of around $69,000, after shaving $5,882.50 from the expert fees claimed in the costs bill. Employee appealed.
He lost.
Because Hill was a prevailing party, he was entitled to routine costs as a matter of right. (Code Civ. Proc., sec. 1032(a)(4); Chinn v. KMR Property Mgt., 166 Cal.App.4th 175, 188 (2008).)
Employee focused his challenge on the 998 offer by employer and Hill, arguing in essence it ($1.179 million) was a joke because days earlier all parties had tentatively agreed to a $2 million settlement that fell apart. Wrong argument to make before Presiding Justice Sills, who wrote for a 3-0 panel rejecting employee’s challenge to the costs award in Hill’s favor.
“Let us state the obvious: $1.179 million is still real money for individuals like Mike Hill and [employee], and particularly when we look just at Hill’s exposure alone, is almost ridiculously high.” (Slip Opn., at p. 15.) The fact that a defendant is willing to pay more in a settlement does not demonstrate that the 998 offer is unreasonable, with $1.179 million determined to be in the reasonableness “ballpark.”
Employee then argued that the $69,000 costs bill was simply too high for an individual suing a big corporation. The problem with this argument is that the costs award was to Hill, an individual, such that “the argument has no force as to individual defendants, for whom litigation must pose a particular terror to which large corporations are inured.” (Slip Opn., at p. 16.)