Result Was That Expert Witness Costs Award Of $60,023.90 Went POOF!
In Miller v. Fleming, Case No. A150554 (1st Dist., Div. 1 Aug. 3, 2018) (unpublished), plaintiff sued two defendants mainly for breach of fiduciary duty based on an oral partnership joint venture opportunity. Plaintiff eventually won $3.7 million in compensatory damages from a trial judge on the breach of fiduciary claim, a merits determination affirmed in a 2-1 decision (with a steep dissent). The trial court then awarded plaintiff $60,023.90 in expert witness fees based on a rejected CCP § 998 offers to both defendants.
The appellate panel reversed the expert fees “costs” award. The unapportioned offer to multiple defendants was flawed because (1) plaintiff never alleged joint and several liability against the defendants, and (2) the conclusory “co-conspirator” allegations will not do the trick either in a 998 context. Plaintiff argued that the trial court impliedly found the defendants were aiders and abettors, but the 998 offer could not be sustained on that basis—it judged at the time of the offer rather than the time of judgment.