It Did Not Matter That The Defense Itself Spent About $80,000 In Expert Witness Fees To Defend Themselves.
Under our category “Section 998,” we have posted on numerous cases which show how even a modest 998 offer can result in significant fee- or costs-shifting in favor of the successful offeror. To this list, we add the results in Ibarra v. Papierniak, Case No. A140835 (1st Dist., Div. 3 May 10, 2018) (unpublished).
In that case, plaintiff lost a condominium damages action against defendants, who had made a CCP § 998 offer to settle for $1,000 (an offer accepted by another aggrieved person) but was rejected by the plaintiff here. That had disastrous results: the trial judge awarded the defense $60,878.71 (out of the approximate $80,000 requested) in expert witness fees under section 998.
In rejecting plaintiff’s appellate challenges, the 1/3 DCA panel found unpersuasive the argument that the $1,000 offer was unreasonable because the defense itself expended $80,000 in expert witness fees to show the potential exposure was way above $1,000. The jury did award zero, with the appellate court accepting the reasoning that the defense—believing the case was meritless—should not have been penalized from hiring experts necessary to defend themselves, citing Culbertson v. R.D. Werner Co., Inc., 190 Cal.App.3d 704, 710-711 (1987). With respect to the reasonableness of the expert fee award, it was in light of the fact that at least six visits to the properties and many inspections/tests were made by the defense experts.