Also, Service Of Judgment Electronically Extended The Time To File/Serve Costs Memorandum.
In a very detailed published decision, the Second District, Division 3 confronted two issues: (1) whether a costs memorandum filed 17 days after electronic service of a notice of entry of judgment was timely, and (2) whether some dismissed defendants in a multiple-defendant personal injury suit against a sole plaintiff where all defendants made a joint 998 offer must await the resolution for all defendants in order to recover 998 fee-shifting costs.
The answer to both questions was “yes” in Kahn v. The Dewey Group, Case No B259679 (2d Dist., Div. 3 Sept. 8, 2015) (published).
The salient facts, as briefly as we can summarize, are that plaintiff sued 20 defendants for joint and several liability for personal injury from property environmental contamination, that all 20 defendants made a joint 998 offer for $75,000 which was not accepted by plaintiff, that the lower court granted a nonsuit as to 14 of 20 defendants, that the case went to trial on the remaining 6 defendants (resulting in a mistrial, with another trial pending), that the 14 defendants sought 14/20ths of expert witness fees (a little over $206,000) against plaintiff as prevailing 998 parties, and that the lower court awarded the 14 defendants the requested expert witness fees.
The 2/3 DCA, in an opinion authored by Presiding Justice Edmon, reversed and found the 998 expert fee-shifting ruling was premature.
The first issue was a procedural one, namely, whether the 14 defendants timely filed a costs memorandum 17 days after receiving notice of entry of judgment electronically. The reviewing court said CCP § 1010.6(a)(4), just like mail service (Nevis Homes LLC v. CW Roofing, Inc., 216 Cal.App.4th 353, 357 (2013)), did extend the costs memorandum filing/service time, and it did not matter that the extension ran in favor of the costs claimant.
The second issue was more complex, with the appellate panel surveying various opinions—categorizing them into the “absolute prevailing party” approach (which would have favored the 14 defendants and would have sustained the trial judge’s ruling) and the “comparison” approach (where one has to look at the ultimate judgment against all defendants, which would favor plaintiff’s position). The 2/3 DCA adopted the “comparison” approach, after determining that defendants making a joint 998 offer should have to await the ultimate result in the case in order to avoid “lowball” joint offers. And, there was a counseling point for defendants involved in multiple-defendant/single-plaintiff cases, you can make your own separate 998 offer if you do not want to be included among the defendant “group.” So, the fee shifting award was reversed as premature, to await what happens in the trial as to the other 6 defendants.
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