Result Was That Prevailing Party Lost $38,229 In Expert Costs If 998 Offer Had Been Valid.
In the past, we have posted on tips to make sure that a Code of Civil Procedure section 998 offer is valid, given that there is a fair amount of California jurisprudence on this subject. Specifically, we refer you to our post of July 7, 2015 synopsizing some great tips by practitioner Iris Weinmann on how to structure and avoid problems with 998 offers.
Westreich v. Higa, Case No. B279492 (2d Dist., Div. 5 Apr. 16, 2018) (unpublished) well illustrates one of the pitfalls: including a general release and Civil Code section 1542 waivers of an overbroad nature.
In this one, defendants were prevailing parties in a boundary line dispute lawsuit. They sought a total of $69,824 in routine costs, $38,229 of which constituted expert witness fees based on the other side’s rejection of a 998 offer. The trial judge awarded them all, denying in entirety a motion to tax costs. On appeal, the non-prevailing side first contested most of the awarded fees, but then wisely decided to narrow the focus to only the 998-shifted costs. That was a good move. The appellate court determined that the 998 offer was invalid because it did contain a provision for a general release beyond the claims at issue in the litigation. That resulted in $38,229 being stricken from the costs award, with the remainder of other costs staying intact.