Section 998 Offer Was Reasonable And Expert Fees Did Not Have To Be Tied To Issue Eventually Won.
In Melendrez v. Ameron International Corp., Case Nos. B256928/B259423 (2d Dist., Div. 4 Sept. 17, 2015) (published), defendant won an asbestos suit against plaintiffs in a wrongful death suit based on the workers’ compensation exclusivity rule even though the deceased worker claimed he was exposed to asbestos while working on pipes at home instead. The defense moved for recovery of expert witness fees based on plaintiffs’ rejection of a CCP § 998 offer for a defense waiver of costs/fees in return for a case dismissal. The lower court awarded $80,719 out of a requested $130,334 in expert witness fees.
The expert witness fee award against plaintiffs and in favor of the defense was affirmed on appeal.
Despite argument that the 998 offer was unreasonable given the millions in damages sought in an asbestos exposure case, the 2/4 DCA determined that plaintiffs did not meet their burden of showing the offer was unreasonable given that a judgment more favorable than the result is presumptively reasonable. The lower court evaluates not only the offer to the amount of damages sought, but also critically focuses on the plaintiff’s likelihood of prevailing. The reviewing court rejected the notion that the plaintiff had to have advance notice of the amount of expert fees involved, citing Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006) in support of its reasoning. The zero dollar 998 offer was reasonable given the workers’ compensation exclusivity defense of an all-or-nothing nature.
The second challenge was that the award was not for expert witness fees but for abatement expenses unrelated to the workers’ compensation exclusivity ruling. The appellate court disagreed. The fees were incurred to advance the defense theory that decedent/worker’s exposure to asbestos at home was minimal in nature with respect to the causation defense. The appellate court also rejected the proposition that expert witness fees were not properly awardable under section 998 even though incurred on an issue not ultimately won by the defense.