Plaintiff Could Not Claim Costs, At All, Because His Judgment Did Not Exceed His 998 Offer.
Here is an interesting case involving dueling CCP § 998 offers (which we are seeing more of recently), demonstrating how appellate and trial courts will take a pragmatic approach when interpreting joint section 998 offers depending on the circumstances of the overall litigation.
Felix v. Aronson, Case No. 218160 (2d Dist., Div. 1 March 2, 2011) (unpublished) is a case where a plaintiff was rear-ended with a vehicle driven by defendant son and owned by defendant father. Son admitted liability for the accident, with plaintiff obtaining a personal injury damages award that was reduced after a new trial motion by over one-half (from $311,570.87 to $143,331.31). The lower court also awarded $23,898.82 in costs to plaintiff, and $23,953.11 in costs to the defendants. (We assume the costs awards were based on pre-offer versus post-offer costs incurred by both sides). Plaintiff appealed the adverse cost award, because it essentially “washed” out his cost win.
The defense costs award was sustained on appeal.
Plaintiff’s primary argument was that the defense 998 offer of $350,000 was a joint invalid offer. However, the appellate court disagreed because the joint offer did provide notice of who really prevailed for purposes of a lower court awarding costs under section 998. (Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613, 629 (1994).) The lower court could easily determine that plaintiff did not exceed the 998 offer because father’s liability limit was $15,000 under Vehicle Code section 17151(a) such that son offered $335,000 as part of the $350,000 998 offer. After the trial court’s reduction in damages, the remaining jury damages were clearly less than $335,000 so that plaintiff did not prevail against son (the party with the most exposure). The joint offer was not invalid, meaning the costs award was just fine.
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