Third District Reaffirms Validity of Peterson in Unpublished Decision Involving Individual Plaintiff Who Could Compromise Both Personal and Representative Issues.
In Van Alstyne v. Carter, Case No. C056440 (3d Dist. Apr. 14, 2009) (unpublished), plaintiff lost a crop damage case involving $1,200 in damages and an injunctive request after defendants defensed plaintiff through nonsuit motions and a jury verdict in their favor. Defendants filed a costs memorandum seeking, among other items, $66,525 in expert witness fees based on a Code of Civil Procedure section 998 offer that was rejected by plaintiff. (The 998 offer from the defense was extended to plaintiff, both in his individual capacity and as a trustee of a close knit revocable trust, offering to settle the litigation for $25,001.) The trial court did grant defendants $15,920.83 in ordinary costs, but taxed the expert witness fees claimed in the costs memorandum in entirety. (In layman’s terms, the lower court denied the expert witness fees, even though the 998 offer—if valid—would have allowed the defendants to recoup these expenses.) Defendants appealed this ruling.
The Third District, in a 72-page unpublished decision, reversed this ruling but affirmed and overturned other merits and discovery rulings. However, as pertinent here, the appellate panel reversed and remanded to allow the trial court to determine the reasonable amount of expert witness fees that should be recovered by defendants under the section 998 offer found enforceable in nature.
In reversing the expert witness fee denial, the appellate court placed dispositive weight on Peterson v. John Crane, Inc., 154 Cal.App.4th 498 (2007). As in this decision, plaintiff had a “unity of interest” both as an individual and trustee—he did not wear different “hats” of a disparate nature so that he could not settle the case in both individual and trustee capacities. This followed from the fact that, as trustee, he had the power to settle the claim belonging to the trust under Probate Code section 16242(b)-(c). Beyond that, plaintiff could have asked defendants to clarify any ambiguity in the offer to see if he was conflicted in wearing different “hats.” Plaintiff did not ask for this type of clarification, such that he was considered a “single offeree” for purposes of the section 998 offer—meaning plaintiff was on the losing end of the $25,001 pretrial offer.
BLOG OBSERVATION—For practitioners who have a penchant to get embroiled in discovery battles, this case is must reading. The Third District basically “split the baby” in many respects—affirming some determinations, reversing some “you must be kidding” technical violations, and finding that some decisions were nonprejudicial no matter which way they went. Are we surprised? No, answer Marc and Mike—discovery disputes are always better resolved short of judicial intervention, with the courts only enforcing what the parties should have done in the first place if they had exercised common sense (subject to privileges, trade secrets, or other exceptions of import).