Experts, Section 998: Trial Court’s Denial Of Plaintiffs’ Motion To Tax $27,926.41 In Defendant’s § 998 Expert Witness Fees Affirmed On Appeal.

The Party Moving To Tax § 998 Expert Fees Has The Burden Of Showing That The Fees Are Either Not Properly Chargeable Or Unreasonable, Which Plaintiffs Failed To Do, And Substantial Evidence Supported The Trial Court’s Finding That It Was Not Inequitable To Award Expert Costs Against Plaintiffs.

            In Mass v. City of San Diego, Case No. D077680 (4^th Dist., Div. 1 June 24, 2021) (unpublished), neighbor plaintiffs appealed the trial court’s denial of their postjudgment motion to tax costs as to City’s expert witness fees of $27,926.41 pursuant to City’s Code Civ. Proc. § 998 offers that were rejected by plaintiffs.     

            The 4/1 DCA affirmed.

            Plaintiffs’ first argument – that City had the burden of establishing that its § 998 offers were not conditional on all parties accepting, and that the offers were reasonable considering the evidence available at the time the offers were made – failed because the burden was on the party moving to tax the costs.  City had the burden only to the extent plaintiffs argued that the § 998 costs claimed by City were not properly authorized.  Plaintiffs made no such argument.

            Plaintiffs’ second argument – that the trial court failed to properly consider whether the imposition on middle class homeowners of such a large cost bill would improperly discourage other homeowners from filing legitimate claims against City – was not supported with evidence justifying a finding of lack of economic resources.  In fact, the trial court had expressly found that “awarding expert costs [against Plaintiffs] is not inequitable,” and substantial evidence regarding the employment status and real estate holdings of the plaintiffs supported the trial court’s finding.