Allocation of Costs Between Defendants Is Not Mandatory Under Section 998.
In Hundal v. Singh, Case No. C071873 (3d Dist. Sept. 24, 2013) (unpublished), plaintiffs lost a car accident case against defendants, after sharply conflicting testimony in which the jury went with plaintiffs as far as negligence but found for the defense based on a lack of causation. (Meeting all the elements of a claim can be very arduous, right?) Defendants were awarded over $21,000 in costs (including over $16,000 in expert witness fees) because separate plaintiffs failed to beat respective 998 offers of $5,001 and $15,001.
On appeal, plaintiffs argued that the offers were not made in good faith and that defendants must allocate expert witness fees between the two plaintiffs with respect to the 998 offers.
Costs award sustained upon appeal.
Because there was conflicting testimony at trial, the lower court did not abuse its discretion in finding the 998 offers were made in good faith–in essence, everyone knew what was coming.
The allocation argument was a little trickier. However, plaintiff did not succeed because nothing in section 998 requires an allocation of costs in the case where plaintiffs were jointly represented. (Acosta v. SI Corp., 129 Cal.App.4th 1370, 1376 (2005).) All the more so here given the presence of respective 998 offers.