PowerPoint Argument Presentations No Go; Videotaped Depositions A Go Under the Right Facts; And “Bright Line” Rule Offered On Cost Reimbursement Where Plaintiff Makes Successive 998 Offers.
As you can probably tell from our topical headlines above, the Second District, Division 1 issued an important routine costs/CCP § 998 cost-shifting opinion in Martinez v. Brownco Construction Co., Inc., Case No. B226665 (2d Dist., Div. 1 Feb. 10, 2012) (certified for publication), authored by Justice Chaney on behalf of a 3-0 panel.
If you haven’t guessed it yet, plaintiffs won respective $1.645 million and $250,000 jury awards against defendant in a negligence personal injury action after defendant rejected two prior significant 998 offers, each of which beat the eventual jury verdicts.
That inspired the trial court to do this: (1) award about $12,000 for editing video deposition testimony/presenting jurors with videotaped deposition recording; (2) award plaintiffs over $87,280 for a PowerPoint presentation used during closing argument; (3) award plaintiffs over $64,500 in expert witness fees based on expert expenses after defense rejection of the second offer; but (4) deny plaintiffs expert witness fees of $188,500 incurred after their first section 998 offers but before their second 998 offers.
Well, those lower court rulings did result in a published opinion setting some things straight. (Interestingly, the costs proceedings were heard before a bench officer not presiding at the trial--a not infrequent occurrence when original bench officers die or moves on--with the appellate court indicating that the moving party for costs needs to give more complete evidence when this situation occurs, but with the more detached bench officer’s rulings only going to the burden of persuasion rather than the ultimate standard of review. This is a nuanced determination which should be noted in subsequent cases.) Here is what happened on appeal:
#1: Videotaped deposition expenses were sustained, especially given the lower court record indicating that they were incurred for a crucial witness (“necessary,” not just helpful in nature);
#2: PowerPoint presentation for closing argument, not a summary of proof, was only “helpful” but not necessary, so that it was an abuse of discretion to award it as costs (contrasted with mandatory cost reimbursements for exhibits and summaries presented as evidence before the trier of fact); and
#3: The expert witness fees incurred between the first and second 998 offers were incorrectly denied to plaintiff. This was the heavily discussed item, given two appellate court decisions that could be construed as going the other way. However, the Second District, Divison 1 determined, both on contractual, policy, and preference for “bright line” rule grounds, that “[w]hen a party makes two section 998 offers to compromise more than 30 days apart, the purpose of section 998 is adequately served by the statute’s existing language, which entitles an offeror to cost shifting from the date of the earliest reasonable offer. This rule encourages early settlement, respects the Legislature’s preference for early discovery and evaluation of the merits of lawsuits, and presents a certain, bright line rule by which settlement negotiations may be guided. If any mischief or confusion results from later offers, or any gamesmanship arises, the court can address such concerns when it awards costs.” (Slip Opn., pp. 16-17.)
So, the videotape costs were sustained, the PowerPoint argument costs were reversed, and the expert witness fees denial between the two 998 offers was remanded for a further redetermination.
BLOG UNDERVIEW--This Division has announced prior “bright line” rules, determining that 998 offers which exclude “costs” means that attorney’s fees are within the ambit of the “costs” exclusion of the 998 offer. (See Martinez v. L.A. County Metropolitan Transp. Auth., 195 Cal.App.4th 1038 (2011) (Rothschild, J.) [one of our Top 20 Opinions for 2011].)
BLOG BONUS: The Anti PowerPoint Party is a Swiss political party dedicated to decrease professional use of PowerPoint. Really.
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