$24.516.05 In Expert Witness Fees Awarded By Lower Court Was No Abuse Of Discretion, Although The Dissent In A 2-1 Decision Would Have Reversed The Design Immunity Summary Judgment Ruling.
Menges v. Dept. of Transportation, Case Nos. G057643/G058148 (4th Dist., Div. 3 Dec. 24, 2020) (published) involved a plaintiff, through a guardian ad litem, who lost a motor vehicle personal injury case against CalTrans based upon a summary judgment ruling predicated upon a design immunity defense. The lower court found valid and reasonable Caltrans’ CCP § 998 offer of $25,000, awarding CalTrans $42,926.05 (out of a requested $66,218.74) in costs, mainly expert fees for a service in analyzing medical records and for a medical expert on plaintiff’s life care plan. The 4/3 DCA affirmed the costs award, although a dissenting justice would have reversed the merit decision (such that he implicitly would have denied the costs award to see what happened on remand).
Plaintiff argued that the section 998 offer was invalid because it requested a dismissal with prejudice and a release, but these terms are proper as long as the releases only relate to claims at issue in the case. The $25,000 offer was reasonable, vindicated by the zero award and the fact it was made two years out after the action was commenced (such that plaintiff had plenty of time to assess defenses, including the design immunity defense). The assertions of unreasonableness as to the expert witness fees was simply that—an assertion with no reasoned analysis of why the award was an abuse of discretion.
Presiding Justice O’Leary penned the majority opinion, drawing a dissent by Justice Thompson.
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