Trial Courts Possess Discretion to Control Any Gamesmanship in 998 Process.
The California Supreme Court has spoken on the issue of recovery of expert witness costs where plaintiff has presented two unaccepted pretrial settlement offers under Code of Civil Procedure section 998, neither of which is beat by the balking offeree.
In Martinez v. Brownco Constr. Co., Inc., Case No. S200944 (Cal.Sup.Ct. June 10, 2013), our state supreme court held that where a plaintiff serves two statutory offers to compromise, and the defendant fails to obtain a judgment more favorable than either offer, recoverability of expert fees incurred from the date of the first offer is consistent with section 998's language and best promotes the statutory purpose to encourage the settlement of lawsuits before trial. (Slip Opn., p. 16.)
Interestingly enough, the result did turn on the fact that plaintiff made two unaccepted offers and defendant failed to obtain a judgment more favorable than either. It assumed the propriety of prior intermediate appellate court decisions applying "the last offer rule," which is when a party makes successive unrevoked and unaccepted section 998 offers, the last such offer is the only operative offer with respect to the statutory benefits and burdens. In reaching its conclusion in Martinez, the supreme court found it unnecessary to "find the last offer rule or the first offer rule controlling in all circumstances." (Slip Opn., p. 13.)
Even in the successive 998 offer situation where the offeree does not beat either offer, our state high court found the trial court still retains discretion in awarding expert fees if it senses there was mischief and gamesmanship.
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