However, Trial Court Erred In Denying Section 998 Costs/Expert Fee Recovery To Prevailing Defendant Which Was Indemnified By Second Defendant Not Prevailing Against Plaintiff.
In Litt v. Eisenhower Medical Center, Case No. D067455 (4th Dist., Div. 1 June 19, 2015) (published), defendant #1 served a $15,000 998 offer on plaintiff, who later added defendant #2 which never served a 998 offer. Plaintiff obtained a $3,000 verdict against both defendants. Both sides moved for recovery costs/expert witness fees under section 998. The trial judge decided that plaintiff prevailed as to defendant #2 so as to obtain $8,0865.24 in costs and as to defendant #1 so as to obtain pre-offer costs. With respect to defendant #1, the lower court determined that #1 was entitled to post-998 costs/expert fees of a substantial nature—but denied them because these costs were paid under an indemnity by defendant #2.
The 4/1 DCA agreed that section 998 requires separate party analysis to determine who prevails for costs shifting purposes. However, it reversed the denial of post-offer 998 costs/expert fees based on the fact they were paid by defendant #2. Such costs/fees do not have to be “personally incurred” by the prevailing defendant to be recoverable. (Skistimas v. Old World Owners Assn., 127 Cal.App.4th 948, 952 (2005).)