#1: Molle-Johnson v. Anderson, Case No. B228321 (2d Dist., Div. 6 May 17, 2012) (Unpublished).
In this one, defendant was awarded costs against plaintiff who rejected prior 998 offers of $50,000/$100,000 but was only awarded $2,331 in compensatory damages in a car accident case. This one had to be reversed because the 998 offers lacked the required provision for plaintiff to sign an acceptance acknowledgment, a result necessitated under Puerta v. Torres, 195 Cal.App.4th 1267, 1273 (2011)--a decision emanating from our local Santa Ana appellate court. The 998 offers were invalid. However, defendant was not quite through, arguing the costs award could be affirmed under CCP § 1033. Not so much, said the appellate court, after observing that section 1033 only gives the court discretion to deny costs to a prevailing party, not award them to a defendant. Costs award reversed due to the 998 offer mishap.
#2: Hauzer v. Watson, Case No. F062019 (5th Dist. May 17, 2012) (Unpublished).
This second case involved a defendant doctor obtaining a medical malpractice defense verdict after plaintiff rejected “walkaway” 998 offers (“I pay you nothing, but waive costs if you agree”) which were served 15 months into the case and after defendant obtained expert witness testimony indicating no standard of due care violation. The lower court hit losing plaintiff with 998 fee-shifting costs of $106,130, consisting largely of $77,527 in expert witness fees. At both the lower and appellate court levels, plaintiff argued the 998 offers were unreasonable/not in good faith, a contention rejected on appeal. The reason for the affirmance is one we have seen many times before--plaintiff failed to provide an adequate record on appeal, only presenting the tax costs declarations, but failing to provide a reporter’s transcript of the trial and hearings so that the appellate court could gauge whether there was any error. Costs award affirmed in this one.