HOA Sought To Recoup $298,178.69 In Costs, Including $176,870.54 In Expert Witness Fees.
In Acqua Vista Homeowners Assn. v. MWI, Inc., Case No. D073666 (4th Dist., Div. 1 Aug. 9, 2019) (unpublished), plaintiff homeowners association sued developer defendants as well as pipe supplier defendant MWI in a construction defect suit under the Right to Repair Act (Civ. Code, § 895 et seq.). MWI made a pre-trial CCP § 998 offer of $325,000, which HOA did not accept. The jury rendered a verdict in favor of HOA as against all defendants for nearly $24 million, with 92% responsibility being assigned to MWI. However, in a prior appeal, the 4/1 DCA reversed the trial court’s judgment as a matter of law because HOA had failed to carry its burden of proof under Civil Code section 936 given that it required HOA to prove that MWI’s negligence or breach of a contract caused a violation of the Right to Repair Act. (See 7 Cal.App.5th 1129, 1135, 1164.) MWI then moved to recoup against HOA $298,178.69 in costs, including $176,870.54 in expert witness fees based on the unaccepted 998 offer. The trial judge declined to award any of these costs against HOA.
The appellate court affirmed. Like the lower court, the 4/1 DCA panel found the offer was too token in nature. The $325,000 offer paled in comparison to the HOA’s $22.7 million costs-of-repair exposure with respect to MWI (which actually was confirmed through the reversed jury verdict). The offer bore little prospect of acceptance.
BLOG HAT TIP—We noticed that Justice Gilbert Nares was one of the concurring justices in this 3-0 opinion. The Fourth District website has announced that Justice Nares will be retiring as of August 30, 2019 after 31 years on the appellate bench. We wish him well.
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