Waiver of Costs Offer Not Reasonable Given Plaintiffs Had Severe Injuries and Expert Witness Discovery Had Not Even Commenced.
In order for offers under CCP § 998 to be held reasonable and in good faith, timing is everything – offerors need to make 998 offers at a juncture of the case where both sides have enough meaningful information to assess those offers. County, the 998 offeror, violated this timing principle and was found to not have made a reasonable offer in Reuser v. County of Humboldt, Case No. A142633 (1st Dist., Div. 2 Jan. 15, 2016) (unpublished).
There, four motorcycle drivers sued County for maintaining a dangerous condition of public property after the drivers crashed their cycles while riding together on a hilly road, with all being severely injured. The facts of the case showed a CHP officer criticized the roadway as being in a dangerous condition, but also criticized three of the plaintiffs for driving too fast. There had been an absence of past accidents. Before commencement of expert discovery on the dangerous condition issue, County made separate 998 offers to each plaintiff seeking a with prejudice dismissal of each person’s case in return for a waiver of costs by County. The offers were either rejected or not responded to. A jury returned a defense verdict against all four plaintiffs, leading the trial judge to assess $12,028.33 in expert witness fees incurred by County as against all plaintiffs jointly and severally. Plaintiffs appealed the 998 cost-shifting awards with respect to the expert witness fees.
Although finding the failure to apportion the expert witness fees was no abuse of discretion, the First District, Division 2 Court of Appeal reversed the expert witness fee awards against plaintiffs.
The reason for the reversal was that it was not reasonable for Plaintiffs to accept the 998 offers at the time they were made. They had suffered severe injuries, and the law in the dangerous property condition area also holds that negligence by the plaintiff (such as driving too fast) does not necessarily defeat his cause of action and the absence of past accidents is not dispositive of whether the County maintained a dangerous condition of public property. Coupled with the fact that expert discovery had not commenced (even though County’s experts opined that the crash site was not dangerous), it was not reasonable to assume plaintiffs would accept offers which returned them no positive money in their suits.