Plaintiff Fails to Support 998 Reasonableness Challenge With Adequate Record.
The Fourth District, Division 2 in Kalogirou v. Wal-Mart Stores, Inc., Case No. E049193 (4th Dist., Div. 2 June 28, 2010) (unpublished) affirmed an award of postoffer costs to defendants under Code of Civil Procedure section 998.
After all, plaintiff and her daughter only obtained a $293.50 damage award (after comparative fault was factored in), which happened to sting because plaintiff did not accept defendants’ $6,000 pretrial 998 offer. Defendants incurred postoffer costs that exceeded the damages award plus preoffer plaintiff costs, so that the 998 costs award was justified.
Plaintiff also challenged the reasonableness of the $6,000 offer, claiming it was just token in nature. The problem is that plaintiff bears the burden to prove that the offer was unreasonable in nature. (Santantonio v. Westinghouse Broadcasting Co., 25 Cal.App.4th 102, 116-117 (1994).) Plaintiff did not include a critical defense declaration proffering to show why the offer was justified by a neutral arbitrator’s nonbinding determination and counsel’s careful consideration of exposure after this determination was made. Failure to include this declaration in the appellate court was a big boo-boo for plaintiff on this point. Judgment affirmed.