Court Reporter Costs Were Fine And 998 Offer Was Reasonable, With Losing Plaintiff Failing To Show Abuse Of Discretion In Costs Imposition Award.
Seafood vendors, Washington, D.C. Carol M. Highsmith, photographer. 2010. Library of Congress.
In Anderson v. Seafood City, Case No. B263925 (2d Dist., Div. 1 Dec. 13, 2016) (unpublished), plaintiff in a disability discrimination case suffered a dismissal based on discovery terminating sanctions. The trial judge later awarded $31,955.68 in costs, mainly deposition reporter and expert witness fees (with the latter based upon a nixed 998 defense offer of $5,000 inclusive of fees and costs).
The appellate court affirmed both the challenge to the terminating sanctions and costs orders.
Plaintiff failed to surmount the deferential abuse of discretion standard, especially given that his papers below showed little about the strength of his case so as to make a dint in the 998 expense shifting by the lower court. Plaintiff argued first that the court reporter deposition costs were excessive based on the existence of cheaper alternatives, but the fact an alternative reporter would be less costly is not controlling given that the claimed costs were actually incurred/reasonable in nature. As far as the expert witness costs awarded because plaintiff did not beat the $5,000 998 offer, the appellate court concluded that, even though the zero result was from a terminating sanctions order rather than merits adjudicative result, plaintiff failed to present evidence about the strength of his case such that the 998 fee shifting was no abuse of discretion. Plaintiff’s reference to a victory in a different case against different defendants was an irrelevant consideration.
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