Kahn v. The Dewey Group
192 Cal. Rptr. 3d 679
Cal. Ct. App.2015Background
- Plaintiff Brian Kahn sued 20 defendants for personal injuries allegedly caused by exposure to hazardous gases; defendants were sued on theories of joint and several liability.
- All 20 defendants jointly served a Code of Civil Procedure § 998 offer to settle for $75,000; Kahn did not accept.
- At trial, the court granted nonsuit and entered judgment dismissing 14 of the defendants; the case against six remaining defendants resulted in a mistrial and a retrial is pending.
- The 14 dismissed defendants filed a memorandum of costs seeking expert witness fees of $206,090 (70% of the parties’ total claimed expert fees), invoking § 998 cost-shifting.
- Kahn moved to strike or tax costs, arguing the award of § 998 expert fees was premature because no final judgment had been entered as to all 20 defendants who joined the joint offer.
- The trial court awarded the expert fees to the 14 dismissed defendants; the Court of Appeal reversed that portion of the judgment and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the memorandum of costs filed 17 days after electronic service of notice of entry of judgment was timely | Kahn argued the electronic-service time extension (Cal. Rules or §1010.6) should not extend the filer’s own deadline when the filer also served the notice | Defendants argued the electronic-service two-court-day extension applies and the costs memorandum was timely | Timely — the court held §1010.6’s extension applies by its plain language and the costs memorandum was timely filed |
| Whether defendants who jointly served a §998 offer can recover expert witness fees after some, but not all, offering defendants obtained favorable judgments | Kahn argued a joint §998 offer must be measured against final judgments as to all defendants who made the offer, so fees were premature until final judgments against all offering defendants | Defendants argued joint offers are valid where defendants are united in interest and that those who prevailed (the dismissed defendants) were entitled to expert fees under §998 | Reversed award of expert fees — when defendants make a joint §998 offer, it must be compared to judgments as to the same group of defendants; absent final judgments as to all offering defendants, §998 expert fees may not be awarded yet |
Key Cases Cited
- Martinez v. Brownco Construction Co., 56 Cal.4th 1014 (Cal. 2013) (section 998 interpreted in light of settlement-promoting policy)
- Persson v. Smart Inventions, Inc., 125 Cal.App.4th 1141 (Cal. Ct. App. 2005) (joint defendant §998 offers can be evaluated by comparing group offer to combined recovery)
- Winston Square Homeowner’s Assn. v. Centex West, Inc., 213 Cal.App.3d 282 (Cal. Ct. App. 1989) (awarding §998 costs to an "absolute prevailing party" after a joint offer)
- Fortman v. Hemco, Inc., 211 Cal.App.3d 241 (Cal. Ct. App. 1989) (joint plaintiff offer evaluated where single-figure comparison to a single verdict was possible)