First Offer, A “Waiver Of Costs” Offer, Was Valid and Made In Good Faith, Given The Jury Came Back With A Defense Verdict.
CCP § 998 can be a game changer, depending on when it is made, how it is fashioned, and if it complies with the statutory requirements. All of that led to an award of expert witness fees under a rejected defense 998 offer in a personal injury case, much to the chagrin of plaintiffs in Carig v. Logan, Case No. G064098 (4th Dist., Div. 3 June 3m 2025) (unpublished).
In this case, plaintiffs sued defendant for negligence based on a traffic accident, with defendant serving a “waiver of costs” initial 998 offer which was rejected. The jury verdict was for the defense. Defendant filed for routine costs, much of which was for $21,084 in expert witness fees. The court denied plaintiffs’ motion to tax costs as far as expert witness fees, but did grant some taxing deductions.
Plaintiffs’ appeal of the costs award was not successful. The trial judge retains discretion to order payment of expert witness costs incurred from the date of the first offer, even where other 998 offers were made (as in this case). (Martinez v. Brownco Constr. Co., 56 Cal.4th 1014, 1026 (2013).) However, in this area, litigants need to pay attention to presumptions, namely, a successful judgment constitutes prima facie evidence that the offer was reasonable. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1264 (1998).) Plaintiffs were unable to overcome the presumption of reasonableness from the defense jury verdict, such that the lower court did not abuse its discretion in awarding certain costs. Beyond that, plaintiffs failed to provide a reporter’s transcript to support that the 998 offer was unreasonable, yet another reason supporting the appellate court’s decision to affirm.
Acting Presiding Justice Delaney authored the 3-0 opinion.
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