Fourth District, Division 3 Holds Litigant Waited Too Long To Claim Costs After Resolution of Merits Appeal.
In our category “Section 998,” we have explored the cost-shifting features of Code of Civil Procedure section 998—with expert witness fees being the most expensive costs usually at issue.
However, section 998 does not state when a motion for costs must be brought by a party that has successfully shifted costs under this statutory provision.
Well, the Fourth District, Division 3 has weighed in on this issue in Igma v. O’Rourke, Case No. G042685 (4th Dist., Div. 3 Apr. 26, 2010) (unpublished), a 3-0 decision authored by Justice Aronson.
There, a defendant did shift costs based on a successfully crafted 998 offer. He filed a cost bill inclusive of a claim for expert witness costs. Although no motion to tax costs was filed, defendant did not file his own motion for costs under section 998. After plaintiff’s merit appeal was unsuccessful, defendant moved for costs. The trial court denied the request as untimely, but the superior court appellate division reversed. However, the appellate division did certify the question to the appellate court.
The Court of Appeal reversed the superior court appellate division.
Justice Aronson, on behalf of the 4/3 panel, concluded that the 998 costs motion should not run by a “different procedural clock than other cost bills” because such a proposition could lead to conflicting orders—“a judgment could award the prevailing party costs and a later order could then award the nonprevailing party costs.” (Slip Opn., p. 4.) Although he could have appealed the trial court’s order refusing to allow his 998 costs, he failed to follow the procedural requirements for claiming them in the first instance or filing a cross-appeal in conjunction with the merits appeal. Unfortunately for defendant, the trial court’s judgment, “right or wrong,” was final in nature.