Section 998: Joint CCP § 998 Offer Made By Husband And Wife To Three Defendants, In Negligence Case Involving Comparative Negligence For Both Noneconomic and Economic Damages, Was Invalid

Award Of Expert Fees To Plaintiffs Reversed, Because Offer Failed To Allocate Out For Each Defendant.

            Reynolds v. Pope, Case No. A155406 (1^st Dist., Div. 5 July 28, 2020) (unpublished) is a factually interesting case where a professional baseball player and his wife sued a neighbor defendant who invited some friends to his parents’ home for an LSD party where one of the guest’s drug use subsequently injured the plaintiff baseball player in an attack at the player’s home.  The jury entered a verdict for plaintiffs, but it did reduce damages for comparative negligence of the various parties (although awarded damages were over $1.5 million).  Earlier, plaintiff husband made a collective offer to settle with defendants and neighbor parents for $900,000, while plaintiff wife submitted a collective offer for $100,000.  Neither offer was accepted, plaintiffs dismissed the claims against parents in return for a costs waiver, and the trial judge awarded expert costs based on the 998 offer to plaintiffs over objections by defendant. 

            The 1/5 DCA reversed the expert costs because the 998 was invalid.  Because this was a comparative negligence situation where there was only several liability for noneconomic losses but joint and several liability for economic costs, there was a need to apportion out the offers so that each defendant could assess exposure.  “Plaintiffs fail to explain why joint liability for some but not all damages is sufficient” given that the noneconomic loss liability potentially varied in nature under Proposition 51.  (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc., 109 Cal.App.4^th 537, 547 (2003); Taing v. Johnson Scaffolding Co., 9 Cal.App.4^th 579, 586 (1992).)