In a construction defect matter, both sides appealed after a trial court found that judicial referee costs should be split consistent with a judicially-filed stipulation and after making an award of certain statutory costs to plaintiffs after finding that their CCP § 998 offers were valid.
Both sides were disappointed after the Second District, Division 6 in Antangan v. Shea Homes Limited Partnership, Case Nos. B227527/B230097 (May 7, 2012) (unpublished) affirmed the determinations reached at the trial court level.
Below: Aerial view of Levittown. 1959. Wikipedia.
Plaintiffs did not like the lower court modifying a judgment to indicate referee fees should be split. However, the appellate court found that the judicially-filed stipulation did modify the prior contractual stipulation allowing the referee to order otherwise as it did by finding Shea should bear the referee costs. The “split costs” stipulation superseded the original contract, estopping plaintiffs from demanding a different allocation.
Shea argued that plaintiffs’ 998 costs-shifting offers were not validly served because the mail proofs of service did not have a suite number. This was wrong, because the mailing to the correct street address without more detail was substantially compliant. (Jackson v. Bank of America, 141 Cal.App.3d 55, 58-59 (1983); Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2011) ¶ 9:86.6.)
Shea then contended that the 998 offers were invalid because it was not enough that plaintiffs indicated in the offers that they were “made pursuant to the terms of Code of Civil Procedure Section 998, and if not accepted as provided therein, Shea will be subjected to all the penalties stated therein.” The appellate panel did not believe that Puerta v. Torres, 195 Cal.App.4th 1267, 1273 (2011), which lacked any acceptance procedure at all when deciding to invalidate a pretrial settlement offer, was on point, because the Legislature did allow “room for interpretation on how” to compose the acceptance language, with there being substantial compliance through the language used by plaintiffs here.
No apportionment was needed between the various defendants, because they were jointly and severally liable--with their own pleadings (answers and defenses) showing no varying differences.
Finally, the $5,000 costs award for an assistant to plaintiffs’ counsel was proper because the expenses were for managing a database of exhibits, which are compensable if determined to be reasonably necessary to the conduct of the litigation--something the lower court implicitly found to be true.