Bottom Line Is That Some Routine Costs May Have To Be Paid On Remand By Prevailing Defendant.
Hussein v. Razin, Case Nos. G061491/G061681 (4th Dist., Div. 3 Nov. 13, 2023) (unpublished) is a decades-long dispute which finally resulted in plaintiff failing to prove his claims, in plaintiff defeating cross-claims against the defendant/cross-complainant, and with plaintiff then recovering $11 million in costs and attorney’s fees against defendant in an arbitration based on successfully defending against the cross-complaint. There also was a defense CCP § 998 offer for a “paltry” $4.5 million, never accepted by plaintiff, based on indications that a multi-million dollar verdict was in the offing. The lower court denied all parties’ request for routine costs. That sent the matter to the appellate court based on appeals by all sides.
Most rulings got affirmed by the 4/3 DCA, except for a reversal and remand for routine costs to the defendant, in an unpublished opinion authored by Justice Goethals.
Defendant obtained a reversal for routine costs under CCP § 1032 based on its technical language that a defendant is the prevailing party where neither plaintiff not defendant obtains any relief, which includes a defendant as a cross-complainant. (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn., 231 Cal.App.3d 1450, 1453-1454 (1991).) Plaintiff argued, c’mon here, I won an arbitration award of much more so that I prevailed. The appellate court rejected this argument because arbitral proceedings are not included within the ambit of the section 1032 language; to hold otherwise you erode the black letter law on the issue.
Defendant argued that it was entitled to section 998 based on its rejected $4.5 million pre-trial offer. The appellate court agreed with the trial judge’s conclusion that the offer was not in good faith because there was evidence that plaintiff would have won a significant verdict way over this amount—a “large payday.” So, no enhanced expert fees owed by plaintiff.
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