998 Offer Was Made After Plaintiff Received Medical Treatment; Third District Affirms $58,821.98 Costs Award Against Plaintiff.
Timing is everything in judging the reasonableness of Code of Civil Procedure section 998 offers, as the next case shows.
In Dutta v. Coker, Case No. C056023 (3d Dist. Sept. 28, 2009) (unpublished), plaintiff car passenger was ultimately defensed based on a causation issue in a trial where he claimed damages of $34,000, even though he earlier won a $60,113.47 nonbinding judicial arbitration award that was the subject of a de novo trial request. (Plaintiff had a number of preexisting injuries, so that set up causation hurdles.) About three months after suit was filed by plaintiff, defendant made an offer under section 998 to settle the case for $1,501, with plaintiff’s medical expenses being $1,569 at the time of the offer. Plaintiff refused and lost a jury trial. Defendant moved to recover costs under 998, and was awarded $58,821.98 (mainly expert witness fees, with the trial court reducing the cost request by $2,444.50).
Plaintiff appealed, claiming the offer was unreasonable and not in good faith from his perspective.
The Court of Appeal affirmed the costs award. The determination was reviewed by the deferential abuse of discretion standard, which was not overcome in this particular case.
Most important, reasonableness from plaintiff’s perspective is judged through use of an objective standard, based on what was known or reasonably should have been known by both parties. (Elrod v. Oregon Cummins Diesel, Inc., 195 Cal.App.3d 692, 700 (1987).) In this situation, the facts behind the 998 offer were well known to both sides. Given that the defense judgment was prima facie evidence that the offer was reasonable, the burden shifted to plaintiff to prove otherwise—something that was not done here. “We conclude the legislative purpose of section 998 is not violated by requiring a plaintiff, who confronts serious causation problems and insists on going to trial, to bear the burden of defendant’s expert witness fees if the verdict proves less favorable than the defendant’s modest pretrial offer.” (Slip Opn., at p. 9.)