$172,546 Costs/Expert Fee Award Against Plaintiff Affirmed On Appeal.
In Zamora v. Textron, Inc., Case Nos. A124923/124992 (1st Dist., Div. 3 Feb. 18, 2011) (unpublished), plaintiff lost to one defendant in a case where she claimed injuries when the brakes failed in her “Haulster” three-wheeled vehicle. Prior to trial (where plaintiff eventually won almost $1.6 million against the vehicle manufacturer), the eventual winning defendant offered to settle for $35,000, an offer which was rejected. After a deposition the next day, the 998 offer went down to zero dollars and a mutual waiver of costs, also rejected. Defendant prevailed at trial, and the trial court awarded it $172,546 in costs and expert fees pursuant to Code of Civil Procedure section 998. Plaintiff appealed.
The Peardrop – a 2-Wheeled Car
Plaintiff lost.
Although a 998 offer must be made in good faith, that determination is a discretionary one for the trial court, with the appellate court reviewing the circumstances of the case to see whether the lower court abused its discretion in evaluating the reasonableness of the offer or its refusal. (Essex Ins. Co. v. Heck, 186 Cal.App.4th 1513, 1528-1529 (2010) [reviewed in our July 29, 2010 post].) However, here, the waiver of costs did have significant value in light of the $172, 546 998 award. (Hartline v. Kaiser Foundation Hospitals, 132 Cal.App.4th 458, 471 (2005); Jones v. Dumrichob, 63 Cal.App.4th 1258, 1263-1264 (1998).) No abuse of discretion in making the award.