Second District, Division 7 Rejects that 998 Has Expert Work Timing Restrictions on Recovery of Expert Fees.
Plaintiffs sued the owners of adjacent hillside parcels after the destruction wrought by a mudslide on plaintiff’ home. Eventually, a jury decided in favor of defendants. Because defendants beat prior Code of Civil Procedure section 998 offers totaling $40,000, the trial court awarded them $19,127 in expert fees incurred after service of the 998 offers.
Plaintiffs, who appealed both the merits of the jury loss and the 998 award, did not get any relief upon review in Thomson v. Beuchel, Case No. B211516 (2d Dist., Div. 7 Jan. 19, 2010) (unpublished).
On appeal, plaintiffs made two challenges: (1) the 998 offers were not made in good faith given that they did not cover the $47,000 in repair costs let alone the $210,000 sought for a remedial design; and (2) 998 offers do not allow recovery of expert witness costs incurred after expiration of the 50-day period set forth in CCP section 2034.230 (which provides a discovery cut-off date for expert preparation before trial), such that no expert fees were allowable after completion of expert depositions.
Challenge no. 1—swing and a miss! Even though defendants ultimately prevailed, their 998 offers of $40,000 equaled nearly 20% of the top-level remedial design damages claimed by the losing parties. Beyond that, this amount would have taken care of most of the actual repairs ($47,000). In the ballpark, so no sting to this argument.
Challenge no. 2—another swing and another miss! Section 998 does not restrict the recoverability of expert witness fees based on when they were incurred. (Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006).)
So, where was strike no. 3? Besides affirming, the appellate court awarded costs to defendants on appeal.
Comments