Pre-Offer Expert Fees Unrecoverable Under § 998.

Toste v. Calportland Constr., No B256946 (D2d6 Mar. 2, 2016)

Plaintiff appeals on a grab-bag of issues after a defense verdict in a wrongful death case. The jury found one defendant negligent but no causation for any of them. There are two procedural issues: a new trial motion based on jury misconduct and the rejection of a § 998 offer.

On the jury misconduct, plaintiff submitted declarations from two jurors stating that another juror had explained his view of the law that there should be no fault if a truck that played a role in the accident had been properly inspected by the highway patrol. Five other jurors put in declaration denying that occurred. The trial court found that the declarations inadmissible evidence of the jurors’ thought processes. See Evid. Code § 1150. It appears to have further decided, however, that even were the evidence admissible, it was inclined to believe the five jurors who denied any misconduct had occurred. It denied a new trial on that basis. Without touching the admissibility issue, the Court of Appeal affirms. When a new trial motion comes down to “a battle of the declarations,” a trial court is free to decide who to believe and gets deference on that finding.

The other issue is that the court awarded defendants’ expert fees because they had previously made § 998 offers that plaintiff —who got a goose-egg—failed to beat. The court finds that an early offer by one Defendant was unenforceable because it was conditioned on the approval of a good faith settlement motion, but the all of the Defendants’ final § 998 offers were reasonable and enforceable. Plaintiff was thus properly hit with the shifting of Defendants’ expert witness fees.  

A slight twist, however, is that the Legislature amended § 998 while the appeal was pending to clarify that any party who doesn’t beat a § 998 offer—whether plaintiff or defendant—is only on the hook for expert fees that are incurred after the offer was made. With little analysis other than citing a case where an earlier change to § 998 was found to apply to cases pending appeal on the effective date, the court holds that the amendment applies to this case. That doesn’t matter for most of the defendants, whose fees were all incurred after their offers were made. But the one defendant whose first offer was invalid appears to have incurred some of its expert fees before making its valid second offer. As those are no longer recoverable under amended § 998, the court here remands to sort that out.

Affirmed in significant part but reversed and remanded for one defendant.