Litt v. Eisenhower Medical Center
237 Cal. App. 4th 1217
| Cal. Ct. App. | 2015Background
- Plaintiff David Litt slipped/struck his head in EMC’s cafeteria and sued EMC for negligence; later amended to add Compass (cafeteria operator).
- EMC served a Code of Civil Procedure section 998 settlement offer for $15,000 before Compass was added; Litt did not accept it. Compass did not serve any section 998 offer.
- EMC and Compass jointly retained experts; after Compass joined, Compass paid EMC’s litigation costs and expert fees under an indemnity agreement.
- At trial the parties stipulated EMC and Compass would be “treated as one” for purposes of the trial; jury awarded Litt $3,000 against both defendants jointly and severally.
- Posttrial, EMC and Compass sought costs including section 998 expert fees; the trial court found Litt prevailed as to Compass but EMC prevailed as to Litt under §998 and struck EMC’s post-§998 costs that were paid/incurred by Compass.
- On appeal the court affirmed separate prevailing-party treatment but reversed the order striking EMC’s post‑§998 expert fees paid by Compass, remanding for allocation and reasonableness determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EMC and Compass should be treated as one for §998/costs because of trial stipulation | Stipulation did not modify §998 rights; Litt argued separate analysis required | Stipulation that they be “treated as one” for trial should extend to cost-shifting and §998 benefits | Waived on appeal and, in any event, stipulation could not reasonably revive/transfer an expired §998 offer; defendants treated separately |
| Whether EMC may recover post‑§998 expert fees actually paid/incurred by Compass under indemnity | Litt: EMC cannot recover fees it did not personally incur/pay | EMC/Compass: actual payor is irrelevant; costs are recoverable if incurred, even if paid by indemnitor/insurer | Reversed trial court: EMC may recover post‑§998 expert fees actually incurred on its behalf though paid by Compass; remand for apportionment and reasonableness review |
| Whether Litt (who did not serve a §998) could recover expert fees against Compass | EMC/Compass: Litt cannot recover §998 expert fees because he made no §998 offer | Litt: challenged items are deposition costs, recoverable under §1033.5 | EMC/Compass waived the specific objection; trial court did not abuse discretion in allowing Litt’s costs as they appeared proper on their face |
| Standard of review for prevailing-party and §998 cost rulings | Litt: trial court discretion governs factual/reasonableness determinations | EMC/Compass: some questions present pure legal issues warranting de novo review | Mixed review: abuse of discretion for factual reasonableness; de novo for legal interpretation of §998 and cost statutes |
Key Cases Cited
- Goodman v. Lozano, 47 Cal.4th 1327 (clarifies standard of review and §998/cost issues)
- Scott Co. v. Blount, Inc., 20 Cal.4th 1103 (explains that §998 can treat a losing defendant as prevailing for postoffer costs)
- One Star, Inc. v. STAAR Surgical Co., 179 Cal.App.4th 1082 (applies §998 cost-shifting when offer exceeds judgment)
- Ceranski v. Muensch, 60 Cal.App.2d 751 (insurance/indemnity payor does not bar recovery of costs by the nominal defendant)
- Skistimas v. Old World Owners Assn., 127 Cal.App.4th 948 (section 998 permits recovery of expert fees actually incurred even if paid by insurer/third party)
- Nelson v. Anderson, 72 Cal.App.4th 111 (verified cost memorandum is prima facie evidence of necessity/reasonableness)