On Remand, Financial Condition Of Rejecting Offeree Can Be Considered In The Costs-Shifting Proceeding.
LAOSD Asbestos Cases (Alfaro v. Colgate-Palmolive Co.), Case No. B281022 (2d Dist., Div. 4 Aug. 8, 2018) (published) involved the results of a costs-shifting proceeding in a case where a plaintiff lost her tort case in which she alleged developing mesothelioma as a result of exposure to asbestos contained in talcum powder products. (Talc cases, which have had varying results, are quite high on the trial and appellate radar screens right now.) Defendant Colgate moved to recover routine costs under CCP § 1032 and expert witness expenses under CCP § 998 after plaintiff rejected a pretrial settlement “walkaway” offer (dismissal of the suit in exchange for a waiver of costs). Given that talc cases are expert intensive, Colgate requested $311,543.86 in costs, consisting mainly of over $115,000 in expert witness fees and of over $140,000 in trial travel/lodging costs. The trial judge, based upon some submissions by plaintiff that she could not afford a hefty costs award, denied costs altogether because she did not have the ability to pay and that was an unjust “due process” violation under the circumstances.
The 2/4 DCA reversed. It found, instead, that CCP § 1032 has no language indicating that ability to pay should be considered when it comes to awarding routine costs under section 1032, such that a reversal was necessary. Beyond that, although financial condition is a factor to consider in determining whether CCP § 998 should be awarded against a party in the lower court’s discretion, the trial judge refused to make a finding whether the offer was in good faith and the financial condition proof was somewhat sketchy such that a remand was directed to be had in this particular matter.
BLOG OBSERVATION—One of Colgate’s successful attorneys on appeal is Louis C. Klein, an attorney at Foley & Mansfield, with whom both co-contributors Mike and Marc have worked (and Mike still does). Congratulations, Lou!