Performance Components Of 998 Offer Were Too Ambiguous; RFAs Were Either Of No Substantial Importance Or Not Unreasonably Denied.
In Jarecki v. Zitter, Case No. D078314 (4th Dist., Div. 1 Sept. 26, 2023) (unpublished), a drainage dispute developed between property owners and downslope neighbors, resulting in plaintiffs losing a trespass claim but prevailing on a nuisance claim. Plaintiffs sought expert witness costs under a rejected CCP § 998 offer, a request denied by the lower court. That court also denied plaintiffs’ request for RFA costs-of-proof sanctions.
The 4/1 DCA affirmed those determinations. As to the § 998 offer, plaintiffs’ request had some performance-based terms which were too ambiguous in nature. The reviewing court explained its conclusion this way: “Term A required them to ‘abate all conditions that cause . . . the nuisance,’ but it did not identify an adequate abatement or ‘all conditions’ at issue. The Jareckis contend they ‘wanted the wall down’ and ‘specifically informed’ the Zitters of the required actions to take or avoid. But term B separately required the Zitters to ‘remove the . . . wall’—implying term A could require something more—and the offer did not specify what term A required. As for term D’s injunction on ‘unreasonably interfering with the . . . discharge of water,’ this was general enough to potentially apply to any future effort by the Zitters to manage water flow from the Jarecki property.” With respect to the RFAs, the ones on the trespass claim were of no “substantial importance” given this claim was rejected, and the ones on the nuisance claim were not unreasonably denied.
BLOG BONUS COVERAGE—Also, in an interesting procedural issue, the appellate court agreed that no separate statement—as allowable in true discovery disputes—is allowable in a costs-of-proof proceeding because that would allow the moving party to exceed applicable moving brief page limitations.
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