CCP § 998 Offer of $15,000 Was Rejected, Giving Rise to Costs/Expert Fee Exposure.
Age discrimination plaintiff lost a jury trial, with the defense then seeking costs of $36,648, with $20,317 being expert witness fees for an expert that did not testify at trial. The basis for the costs request was plaintiff’s failure to accept a $15,000 Code of Civil Procedure section 998 offer two years into the litigation.
The trial court reduced the costs request and awarded $33,616.55 (which included all or substantially all of the expert witness fees).
Plaintiff’s challenge to the costs award was unsuccessful in Newton v. Superior Court, Case No. E051405 (4th Dist., Div. 2 Mar. 1, 2012) (unpublished).
Plaintiff argued that the $15,000 998 offer was not in good faith due to the litigation costs which had been incurred two years into the litigation. No abuse of discretion here, said the appellate panel, because neither the defense nor trial court was privy to the financial arrangements with plaintiff’s counsel so as to know what she had spent. The offer was not so nominal that it was tantamount to only a “token” offer (as compared to $1 or $2,500 offers eschewed in other published opinions).
Plaintiff’s main attack on the expert fee witness award centered on the fact the expert never testified at trial. This, however, is not the test, but whether the expert’s assistance was reasonably necessary even if he did not testify at trial–which could have been inferred by the trial court based on what developed during the case. (Santantonio v. Westinghouse Broadcasting Co., 25 Cal.App.4th 102, 116, 123-124 (1994).)