Unapportioned Offer Was Invalid Because Joint And Several Liability Was Not Established On All Claims.
This next case, Bush v. Loiacono, Case No. D065979 (4th Dist., Div. 1 Apr. 29, 2015) (unpublished), is an interesting CCP § 998 decision arising out of a lower court’s refusal to tax $14,005.22 in expert witness fees requested by a successful 998 offer under plaintiffs’ unapportioned offer made jointly to two defendants. The defense did well to appeal.
The 4/1 DCA reversed the award of expert fees because an unapportioned offer to joint defendants is invalid unless they had joint and several liability to the plaintiffs. In deciding to reverse, the appellate court importantly observed that defense liability for 998 purposes under a joint offer is determined from the pleading allegations at the time the offer was made, not when a later judgment did determine joint and several liability. (Burch v. Children’s Hospital of Orange Count Thrift Stores, Inc., 109 Cal.App.4th 537, 548-551 (2003).) Here, there were various pled claims (e.g., negligence) that only established several liability for noneconomic damages under Proposition 51 such that the unapportioned joint offer was invalid in nature. The subsequent judgment was irrelevant because joint and several liability was not established on all pled claims at the time the offer was made.