Setoff Language Of CCP § 877 Also Supported Result.
Tuttle v. Ukiah Adventist Hospital, Case No. A144759 (1st Dist., Div. 1 May 31, 2016) (unpublished) was an uncontested slip-and-fall case from a liability perspective, with plaintiffs obtaining several pre-trial settlements but eventually winning a jury verdict as to one non-settling defendant, with set-off “credits” for the settlements obtained from the prior settling defendants. Plaintiffs, however, principally came up with a very novel argument on appeal that the settlement set-offs should be reduced further based on the attorney’s fees that they obtained as a mutual benefit for plaintiffs and the defense, making an analogy to a common fund argument as to why this could occur.
The appellate court seriously considered this creative argument, but rejected it. The common fund theory applies to class action and representative suits, such that its underlying theory was not aptly invoked in this case. Beyond that, CCP § 877 makes no provision for further reducing the setoff by plaintiff’s attorney’s fees and costs. (However, with regard to worker compensation setoffs, the statute does allow that the lien excludes fees and costs incurred by the employee, a whole different situation than a non-employer in a civil action.)
Plaintiffs tried to recover expert witness fees after the non-settling defendant rejected two CCP § 998 offers. The problem was that the defense did beat the second offer, but did not beat the first offer. In this “mixed” situation, it was no abuse of discretion for the lower court to determine that defendant was not liable under section 998 because it obtained a more favorable judgment under the second offer. (Wilson v. Wal-Mart Stores, Inc., 72 Cal.App.4th 382, 391, 393 (1999).)
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