Although Suffering $8,210 “Net” Adverse Jury Verdict, Section 998 Expert Witness Fees/Other Costs Actually Resulted In Positive Award To Defense.
Talk about a Code of Civil Procedure section 998 offer being a “game changer,” it was that in the next case and with football season looming, should be heeded by all litigators no matter what area they practice in.
Plaintiff in Cantu v. Hermansen, Case No. B257534 (2d Dist., Div. 6 Aug. 24, 2015) (unpublished) won a jury verdict of $23,200, which was reduced to $14,990 based on a settlement with another defendant. However, the primary defendant sent out a CCP § 998 offer of $25,000, which was rejected. Based on this successful 998 offer, the trial judge awarded primary defendant $57,919 based on the 998 rejection, with a “net” judgment of $48,786.94 awarded overall to the primary defendant after deducting the prior settlement from the jury verdict.Despite plaintiff’s challenges on appeal, the result held up. Plaintiff first argued that the 998 offer was too uncertain because it offered a settlement “inclusive of any and all liens.” The appellate court found this language was not ambiguous, simply referring to matters like attorney’s or medical liens against the recovery in the matter, not other outside liens (such as mortgages). However, in a creative twist, plaintiff argued that CCP § 2033.420 cost-of-proof sanctions for denying certain RFAs should have been granted such that the 998 offer was unsuccessful. However, the killer here was that the defense wisely admitted, before trial, a crucial causation RFA even though initially denying it. That last minute “falling on the sword” meant the lower court properly denied the RFA costs-of-proof sanctions such that the defense made out at the end of the day based on cost-shifting feature of CCP § 998.
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