*1 Dist., May Div. [No. 1994.] B070149. Second Seven. SANTANTONIO,
GERALD Plaintiff v. Appellant, al., COMPANY, INC., et WESTINGHOUSE BROADCASTING Defendants Respondents.
Counsel Inman, Ziff & Drew E. and Hali E. for Plaintiff Weisz Pomerance Steinberg, and Appellant. Brown,
Hill, Burrill, W. and Ronald Farrer & D. Jack White Kyle R. Novotny and Respondents. Defendants
Opinion (Fred),
WOODS J.—
I.
Introduction (Santantonio), Plaintiff appeals and Gerald from appellant, Santantonio $96,883.12, award of him in the his unsuc- following sum of cessful suit and against defendants respondents.
II. Synopsis and Factual Procedural (Velona) two other Gerald A. Velona plaintiffs, (Cochrane), Joseph R. Cochrane were former executives employed account KFWB, Los by radio station owned defendant Angeles by respondent (WBC). Westinghouse Inc. Santantonio and Velona Broadcasting Company, claimed age. terminated KFWB because of their Cochrane job claimed discrimination him to leave KFWB for age forced another which as did not well. Plaintiffs also sued WBC’s pay parent corporation, Inc., KFWB, Electric, Jack Westinghouse and two managerial employees (Cunha). (Hutchison) Hutchison as and Joanne Cunha Cunha dismissed trial. defendant at the start of the 6, 1991, plaintiffs’ served on counsel an “offer On defendants September Civil as to Code of Procedure section 9981 pursuant to compromise,” *7 follows: Co., defendants Westinghouse Broadcasting C.C.P.
“Pursuant to § Inc., Hutchison, Electric, Jack and hereby Joanne Cunha Westinghouse stated, statutory all references are to thе Civil Code of Procedure. 1Unless otherwise Velona, Cochrane, Gerard plaintiffs Santantonio take Joseph Jerry them in against judgment amounts: following “1. plaintiff That take in judgment against Velona the amount defendants $100,000, of exclusive of taxable costs incurred to date of judgment;
“2. That Cochrane plaintiff take judgment against defendants $100,000, amount of exclusive of taxable costs incurred to the date of judgment;
“3. That plaintiff Santantonio take judgment against defendants $100,000, amount of exclusive of taxable costs incurred to the date of judgment. 998(b),
“Pursuant to C.C.P. this offer for shall remain a of open period § thirty (30) days, which time during file a may proof acceptance and the judgment court enter may judgment accordingly.”
It is that the offer undisputed to compromise rejected by plaintiffs. trial, Following lengthy the trial jury judge granted a motion for directed Electric, 13, 1992, verdict favor of Westinghouse Inc. On February then returned jury verdicts in favor WBC and as Hutchison to the claims of Santantonio and Velona. also jury returned a verdict favor of WBC it, on Cochrane’s against claim but found in favor of Cochrane on his claim against defendant Hutchison. The jury awarded Cochrane economic past $85,000 damages in the sum of and emotional damages distress the sum of $100,000. The trial then judge awarded Cochrane an sum additional $68,844 for future economic losses.2
In posttrial proceedings, Cochrane was also awarded the sum $3,220.60 $176,962, and attorney fees of for total judgment of $434,026.60. Additionally, granted trial court Cochrane’s motion for WBC, judgment the verdict notwithstanding against thereby making WBC jointly and severally liable the damages against awarded On Hutchison. 23, 1992, the April judgment was amended to reflect the aforementioned rulings. posttrial 28, 1992,
On defendants filed February a memorandum claiming of costs $365,948.21 as recoverable costs all of the Plaintiffs plaintiffs. tax moved to strike and defendants’ memorandum of costs. Before the costs, motion strike and tax filed hearing plaintiffs’ Velona a petition damages were regarding plaintiffs’ “past bifurcated. The issue of 2The issues economic benefits (lost compensation up trial), the time of damages” any, was submitted also plaintiff of whether could recover projected The issue “future economic losses” jury. court. decision was reserved for *8 judgment Cochrane’s motion for granted and the trial court bankruptcy these developments WBC. view of against the verdict notwithstanding that an allocation of costs defendants conceded before the hearing, against was being sought. Santantonio 20, 1992, various reflecting rulings
On the court made order May issues, At the the matter of costs. including pending posttrial motions counsel, June a further order was made on request of Santantonio’s 20 and the May order. As a result of clarify May certain parts orders, sum June Santantonio defendants awarded $96,883.12, consisting following: Description Allocated Amount Total Allowed 3,015.09 9,035.28 Mem. Cost Items 1(a) [Filing & motion-
Fees], (b) [Jury Fees] (3) [Deposition
Costs] 1,110.89 3,332.66 Mem. Item
Cost 7(a)(5) [Ordinary
Witness Fees] 266.72
Cost Mem. Item 776.08 7(c) Fees [Expert
per § 998]
(D, (2)
depositions
plaintiffs’ Joyce Pickersgill
experts,
and Richard Eastin. 15,720.83 47,162.50
(3) Finis Welch. 13,556.25 (4) Michael Ward. 40.668.75 59,867.58 (5) Fees Support 179.629.75 Expenses Welch, Ward. *9 10,037.29 3,345.76
Cost Mem. Item 10 rental [Projector
$884.84; experts’
exhibits
$8,744.45;
photocopying
exhibits $408]. 290,642.31 96,883.12 Total Regarding the expert fees and under section costs allowed support the court its explained reasons as follows:
“The recovery witness CCP expert fees first on whether the depends 998 offer was valid. Court finds that it There joint was. existed a sufficient interest here in that all defendants were sued on all causes of action. jointly Further, the court relied on a commonality determining success- plaintiff’s ful motion for judgment notwithstanding the verdict. The amount of was also reasonable based on the substantial evidence of poor performance documented by defendants.
“The question of the reasonableness of the amounts claimed remains. Defendants claim that Mr. Welch in the leading figure industry that his firm was not retained until shortly before trial and that all the preparation staff time was necessary and reasonable. Court will accept that the status two witnesses is sufficient their enough justify Therefore, fees. $47,162.50 fees for Mr. Welch are allowed the amount of and fees $40,668.75. for Mr. Ward are allowed in the amount of One-third of $29,277.08. Santantonio; wit, amount However, is payable by Mr. seem to have hired some very talent high-priced tasks which perform require skills that do not appear awesome. For purposes allowing fees, staff hour, economists will $75.00 be reimbursed at per programmers at $75.00 hour, hour, per $60.00 research assistants at data per clerks at entry $12.00 per hour and $8.00 If at hour. photocopy people per calculations correct, are $179,629.75, those allowable costs for staff time amount to $59,867.58.” one-third of which is
III. Appellant’s Contentions im- that the trial court ground attacks the judgment event, and, properly in any awarded abused its costs under section As particular discretion as to the items and amounts which allowed. discussed, hereinafter there merit to is no these contentions.
IV.
Discussion A. Section Was Valid. 998 Defendants’ Offer have not court should that the trial
Santantonio’s contention is principal 998, to offer awarded that defendants’ ground costs under section on the any three basic not In states compromise summary, was valid.3 Santantonio by reasons for for (1) acceptance his contention: the offer only provided (2) was who are not united made defendants plaintiffs jointly; jointly by interest; (3) to plaintiff, it was not intended to be a offer each realistic under the but rather a litigation plaintiffs basis to shift costs provide guise of fees. by 1. The Require Acceptance Section 998 Did Not All Offer Plaintiffs. Event, Any Appeal
In This Issue Been Raised the First Time on Has Be Should Not Considered. decisions, that Santantonio out under correctly pоints interpretative if made to only section 998 offer is valid it is multiple parties expressly them them. and not conditioned on all of apportioned among acceptance by 68, 321]; (See, 4 e.g., Lowry (1970) Randles v. 74 Cal.Rptr. Cal.App.3d [84 785, 826]; (1989) Meissner 212 v. Paulson 791 Cal.App.3d Cal.Rptr. [260 69, (1975) 819]; Taing Hutchins 51 Cal.Rptr. v. Waters 73 Cal.App.3d [123 Scaffolding (1992) v. Johnson Co. 9 586 Cal.Rptr.2d Cal.App.4th [11 A 820].) which them to sum offer to single, lump multiple plaintiffs requires (Randles Lowry, themselves is valid. v. agree among apportionment Likewise, 4 at supra, 74.) by sum offer Cal.App.3d p. lump plaintiff may (Taing defendants be invalid for same reasons. v. Johnson multiple Co., supra, 586.) at Scaffolding p. Cal.App.4th The case not involve sum or unapportioned instant does a lump $100,000 Rather, offered to each plaintiff, offer. since defendants expressly have as to the offer among did not themselves how agree plaintiffs much, this Santantonio concedes but argues would as apportioned. case is like Hutchins. by “expert costs awarded for necessarily only 3This contention Santantonio involves 7(c) of Costs also awarded claimed in item defendants’ costs. fees” memorandum of 1(a) (b), 7(a) under items of defendants’ memorandum and 10 $7,471.74. irrespec section 1033.5 aggregate amount Those are under allowable defendants’ tive of whether section was 998 offer valid. Hutchins, two plaintiffs sued one defendant for out of damages arising
an automobile accident. The defendant made offer to both a section 998 for an sum which between aggregate was expressly apportioned two of them. But the could plaintiff offer also that neither expressly provided unless the the offer accept other also The held that accepted. court invalid kind of “conditional because section 998 does not contemplate settlement offer” accepted to two effective plaintiffs “to become Waters, 73.) (Italics at deleted.) (Hutchins p. both.” supra, Cal.App.3d v. made from the one distinguishable case by defendants *11 in made in stated that Hutchins. defendants’ offer Nothing specifically $100,000 Santantonio, name, offered could be ac- individually by to him We cepted by the other two their offers. plaintiffs accepted discern that Santantonio is that the offer made this case really suggesting should now be judicially impliedly construed as a condition that all imposing three plaintiffs were required to since the offer did not accept, expressly that the provide could We decline the invitation accept separately. to such a imply condition. it
Initially, should be noted that the record on does not reveal appeal that this issue was raised the trial court. his the trial moving papers court, the only grounds asserted by Santantonio for his claim that the section 998 offer was invalid were that “thеre unity was no of interest between defendants Westinghouse Electric and Westinghouse Broadcasting and thus no possible joint or respondeat superior and “the to liability,” 998 offers § plaintiffs were invalid because they were not reasonable or faith good offers.” The record reveals that those two points only urged by Santantonio’s trial counsel during oral argument on Santantonio’s motion to court, tax costs. failed Having to raise the issue the trial the issue was waived, and we will not (Evers consider it for the first time on v. appeal. (1984) Comelson 163 Cal.App.3d 497].) Cal.Rptr. [209 Santantonio Secondly, has cited no case which his supports present offer, interpretation defendants’ and we note that such an interpretation would not serve policy section 998. The of the statute is to purpose settlements, encourage and it “achieves its aim by punishing party who fails reasonable offer from the accept italics.) other party.” (Original Diesel, (Elrod Oregon (1987) v. Cummins Inc. 195 Cal.App.3d 698-699 108].) A reasonable Cal.Rptr. inference from the record is that Santan [241 tonio offer rejected by defendants because he and his counsel considered low, and it to be far too not because he was from they thought precluded $100,000. unless the other two take We accepting plaintiffs also agreed ¿11 that Santantonio reiterates note he did not consider why reasons $100,000 during offer him to be reasonable. The comments his counsel argument oral the trial court reflect similar reiterations. cost we infer that to avoid
Accordingly, attempting Santantonio defect section 998 on a claimed shifting purpose procedural behind based statutory If his for first time on by appeal. devised counsel appellate case, permit we cannot behind section 998 is be served purpose now claiming consequences by Santantonio avoid the of his decision accepted he have ought the offer to be construed as which could not one strained, so. to do and we decline Such a construction would anyway. 2. It Was a Joint Proper to Make Offer. Defendants contends, below, offer next did defendants’ as he offer joint was invalid He asserts that a jointly because was made. are interests the Defendants’ defendants is not “unless multiple permissible indivisible, interest.” referred to in law as unity identical the case law, joint on that he the defendants’ Based view of the concludes was granted rendered invalid defendant Electric Westinghouse because *12 or joint superior directed verdict on the that it had no ground respondeat liability. Hos- Community The case v. is mistaken. of Hurlbut Sonora Santantonio, 840], (1989) cited
pital by 207 388 Cal.App.3d Cal.Rptr. [254 resulting a suit a for injuries involved and child a by parents against hospital a caesarean hospital’s allеged negligent perform timely from failure to defendant The 998 offer to the procedure. joint section section plaintiffs’ held to be to the pursuant following reasoning: was invalid de- offer joint multiple “Unlike the a sanctioning plaintiff’s cases to- where held for the severally fendants are to be and liable they jointly [citations], There was tal were not identical. judgment plaintiffs’ interests (207 single, no to evaluate for settlement injury purposes.” indivisible 410.) at Cal.App.3d p. case, a single,
In the each did claim to have plaintiff instant suffered and alleged jointly indivisible which the defendants were to be for injury, Hence, (1979) Cal.App.3d case of v. Nolan 98 severally liable. Brown Hurlbut, is like the 469], 445 in much more by cited court Cal.Rptr. [159 Brown, by a offer joint instant case rationale is apposite. and the court’s under the held valid under section 998 two defendants to be to a plaintiff following reasoning: sued a single plaintiff that this action agree
“The parties this appeal ‘Contributory of several joint liability. two and theory defendants aon
115 tortfeasors, wrongdoers, whether joint tortfeasors or concurrent or successive are ordinarily jointly damage. and liable for the entire severally [Citations.] Hence, when to apportion are an action it is joined improper HD them; be for the full amount should compensatory damages among judgment viewed rendered case are When the fаcts of this against each.’ [Citation.] clear that the offer within the context it becomes principles of these general in issue was one by section 998. contemplated it cannot be
“Plaintiff’s is construed argument strictly section 998 (‘any read as the singular party for offers because it providing joint speaks .’) serve an defendant . . . is may by offer .... If an offer made Where, here, theory joint as persuasive. upon are sued of defendants several liability, any judgment. each amount potentially is liable of full Therefore, by compromise question properly read as offer offer $12,500 each plaintiff judgment may in the amount defendant them, Thus, taken each one jointly severally. the statute’s speaking the singular makes sense when it is to defendants perfect applied sued on such a theory. trial court erred in holding that section 998 was (98 deleted; inapplicable.” at Cal.App.3d p. italics added fns. omitted.) West,
To the same effect see WinstonSquare Homeowner’s Assn. v. Centex (1989) Inc. 213 605], Cal.App.3d where the court Cal.Rptr. [261 joint upheld section as follows: “Joint offers more than one defendant fall within the of section when provisions defendants are united interest and are sued on a theory joint and several liability. *13 Here, Nevertheless, all defendants were not in [Citations.] united interest. the application of section 998 in appears this case. the appropriate Though joint offer did not break down the offer as to areas of particular damage or defendants, &Wilsey Ham received a judgment its favor. & Ham Wilsey anwas absolute prevailing was absolved party—it completely of liabil- any contends, ity. As & Ham the Wilsey settlement subsequent between plaintiff and the other defendants on issues other than was drainage irrelevant as far (Fn. omitted.) as & Ham Wilsey was concerned.” Thus, the Santantonio misconstrues of the cited application cases when he offer was that defendants’ section 998 rendered invalid when suggests liability Electric avoided a ultimately through directed ver- Westinghouse included the the pleadings has not appellate dict. Santantonio record. 452, However, under Evidence Code notice section by judicial subdivision defendants, Electric, including all of the Westinghouse that (d), it is seen were jointly theory severally the on liable for the were sued 116 asserted all of the and defendants alleged discrimination age by plaintiffs, Hence, the joint governed by
filed a answer the this case is complaint. rationale Brown.4 of Was
3. The Reasonable. Offer offer, Santan- a attack on of defendants’ section 998 validity As last the law. it tonio Santantonio misconstrues argues was not reasonable. has a. prima was reasonable. Defendants’ offer facie appeal. court on showing by the trial burden an abuse discretion of of must have a faith good requirement It is true that the courts held that (1981) 121 read section In Wear Cal.App.3d into 998. v. Calderon 566], injury $1 an a defendant personal offer of Cal.Rptr. by [175 was no action held not to there was serve of the statute because purpose the case. chance the a nominal to settle plaintiff would such offer accept Club, (1980) Angeles Cal.App.3d Pineda v. Los Inc. Similarly, Turf 66], held 62-63 of both the trial court and Court Cal.Rptr. Appeal [169 $2,500 that a settlement offer of made a defendant was so by disproportion $10 ate to it plaintiff’s expect demand of million that was unreasonable that would be was not abuse of accepted. Court of held it an Appeal fees discretion for the trial to have claim for judge denied defendant’s under though liability by section even the defendant was absolved (112 63.) the jury. at Cal.App.3d p. Diesel, Inc., supra,
Based like in Elrod Cummins reasoning, Oregon on v. 692, $15,001 one of a case several defendants Cal.App.3d by where injury damages determined plaintiffs personal ultimately the trial $1 was found to be an invalid “token” by be court, excess million so
and that determination Court upheld Appeal. rules, however, following doing, Appeal acknowledged Court well: relevant to the instant case as which are facie where shows a entitlement party prima “It is rule that general costs, should be disallowed. objector prove the burden *14 meaning оf apparently Santantonio has misunderstood the to assume that 4It is reasonable some of It does that used in the authorities cited herein. not mean “unity words of interest” “unity corporation subsidiary corporation between a and a parent interest” must be there joint liability mean that the claimed basis for and several sense. Nor does it ego an alter in Rather, support validity of a joint conceded to defendants’ offer. sustained or be must Brown, i.e., that being was discussed the defendants sued on a means what were simply Here, liability. Westinghouse it was claimed that theory joint and several Electric essence, were, It joint employers plaintiffs. would be a strained result to hold WBC offer was invalid joint simply section 998 rendered because defendants’ failed that Westinghouse was in fact employer. their claim Electric sustain Where, here, the as offeror obtains a more favorable judgment [Citations.] offer, judgment than its constitutes prima facie evidence showing offer and the was reasonable offeror is eligible costs as specified offeree, section 998. The burden is therefore as properly plaintiff, prove otherwise. whether
“Finally, a section 998 offer was and made in good reasonable faith is a matter left (195 sound discretion of trial court.” 700.) at Cal.App.3d p. Elrod,
In facts different from the very instant case led both the trial court and Court of tо conclude Appeal that the offer was good enough qualify as a reasonable one. The had been rendered plaintiff a paraplegic a trucking accident. The jury ultimately determined his damage to $1,183,350, but also determined that he was 60 at percent fault. defend- $15,001 ant who made the settlement offer was found to be 10 liable. percent However, the plaintiffs damages ultimately to be reduced required $500,000 $137,504 settlement received from other defendants and by received as workers’ compensation benefits. As a result of these fortuitous offsets, the $15,001 net recovery against the defendant who made the offer facts, turned out to be zero. view of those “In Court of held: Appeal case, this no abuse of discretion has been shown. The trial court could conclude that, plaintiff carried his burden of at the time the proving offer made, it was not a reasonable of the amount prediction Cummins would have to pay plaintiff (195 following 700.) trial.” at Cal.App.3d p. case,
In the Here, instant the shoe is on the other foot on appeal. trial judge who heard all of the evidence and presumably was the best $100,000 position to evaluate defendants’ offer to concluded that it was reasonable. The court’s ruling states: “The expressly amount of the offer was also reasonable based on the substantial evidence of poor performance Indeed, documented by defendants.” it is significant that case, Santantonio’s failure to obtain a more judgment favorable than the defendants’ offer did not result from like fortuitous offsets those in Elrod. Rather, it was the result of a defense verdict him complete on the alone, issue of For that liability. reason the offer must be regarded as prima facie reasonable.
b. The trial court did not abuse its discretion in concluding was reasonable. defendants’ offer find no merit to Santantonio’s
We as to arguments why defendants’ $100,000 a realistic was not one at the time it was made. Santantonio’s *15 Santantonio, made an entirely Mr. the Defendants unrea-
brief states: “To less than one-ninth of his projected offer they sonable offered [because him] But that claimed projected economic losses.” the mere fact Santantonio $100,000 $900,000 mean of over does not that defendants’ economic losses had or Defendants that no they was unreasonable unrealistic. contended Moreover, all, to Santantonio at and the liability jury ultimately agreed. were expert defendants contended that the estimates damage by plaintiffs’ excessive, greatly Santantonio’s case. especially Ward, economist, Defendants’ Michael that he estimated testified $198,959, $120,624 between past Santantonio’s economic losses to be whether one two to obtain upon years it took Santantonio or depending yеar jobs another radio or Based on of available job survey television sales. his Dr. there reason industry, why Ward testified that was no good should not within one get job Santantonio have been able to another sales to after KFWB. years being two terminated by further future
Dr. Ward testified that he estimated Santantonio’s projected $79,674 $87,273. Dr. economic losses to be no more than another Ward that the explained projected future losses attributable to Santantonio’s he loss of benefits at KFWB and the differential pension slight pay might job salary have on another based on the account executives average for under Depart- out to the time of his retirement industry, projected expected Thus, ment of Labor tables. Dr. the combined highest Ward’s estimate of for amounted past and future economic losses Santantonio projected $286,232. that, Defendants offered for approximately percent to settle (as found) had though they jury even that no strongly believed all. liability at $100,000
Santantonio also seeks his settlement justify rejection Cochrane, even offer because defendants offered the same amount to though Cochrane’s claimed losses were as much as San- economic one-third tantonio’s, and more times the offer. Cochrane then recovered than four argues: why “There could be of hundred reasons any jury Santantoniо, did find Mr. do with for none of which have anything however, claim, value of his claim.” Any evaluation of Santantonio’s would find jury might take into account the prudently possible why reasons him. A defendants were not liable claimed age against discrimination any complete transcript appellate record has not been provided court, but a reasonable inference indeed reasons very good is that there were Velona, him Poor found of Cochrane. why jury but favor on the from performance part Judge of Santantonio and is evident Velona docu- statement “the substantial Leahy’s evidence performance of poor $100,000 offer mented defendants” his supported ruling defendants’ to Santantonio reasonable.
119 c. Santantonio’s claim that to trick attempted defendants with their section 998 is nonmeritorious. offer by “trick Plaintiffs
Santantonio to maintains defendants attempted Offer,” it that defendants their 998 and he was unaware when he rejected He him. costs” to would use it as a “shift their litigation to the bulk of “ploy” thought he he had says differently would have the considered offer defendants’ rejection him would to exorbitant amounts expose such expert fees. to party allows a
Santantonio overlooks fact that 998 expressly section statutory shift of his or her to the when the part litigation costs other side met; discretion, are include conditions the court’s may, those costs be expert Experienced very fees. know that fees can litigation expert counsel substantial, Santan- depending on nature issues We assume litigated. tonio’s trial counsel him time to at the competently explained exposure defendants’ section offer rejected. was evaluated and Santantonio’s about the complaints nature and fees allowed amount ultimately by trial court are not relevant issue to the of whether the section 998 offer was valid. Those complaints go only to the which we question, separate later, discuss of whether court below abused its determining discretion what should be allowed properly given under section the fact that did Santantonio not obtain more than offered judgment favorable what was to him. relies on his he mistakenly argument Elrod support
should now be relieved of the statutory of his consequences rejection defendants’ section 998 offer he how he because much misjudged exposure might have for defendants’ costs. The argument is out context. The Elrod court’s discussion about viewing an offer in light reasonableness of of what the offeree or does knows not know at the time the offer made has is reference facts on the evaluation of the own bearing offeree’s claim. did discussion involve evaluation of what the cost exposure might be if the offer to be This made clear rejected. is when language quoted in Santantonio’s brief is back in placed proper context: test,
“If the is found reasonable it first must then satisfy second whether defendant’s test: information was known or reasonably should been This second is plaintiff. have known test because necessary the section mechanism works where the offeree has know reason to If the offeree has the offer is reasonable one. no reason know the offer reasonable, then the cannot expected accept is offeree offer.
“Thus, defendant’s files contain suppose ‘dynamite’ likely information However, the liability. from information to a subject privilege insulate *17 and to by privilege is not discoverable Defendant intends waive plaintiff. its and at on use information trial. Defendant a low offer premised makes circumstances, includ- an knowledge; objective exclusive other appraisal is for indicate offer ing likely liability damages, defendant’s would knowl- its exclusive patently unreasonable. Unless defendant communicates offer, not does with its is reasonable edge plaintiff to offer not reasonably or knew as valid section 998 offer. Since defendant qualify evaluate to necessary should have lacked plaintiff known information offer, of section for purposes defendant did not make the offer in faith gоod 998.
“However, does emphasize we the reasonableness offer defendant’s rather on depend actually plaintiff but on known to information information is standard reasonably that was known or should have been known. The latter the informa- discovered one: would a reasonable have objective person incongru- faith good A would make defendant’s contrary tion? conclusion reward plain- ously depend subjective knowledge on and would plaintiff’s Thus, a low makes tiffs are dilatory pursuing discovery. who defendant if de- shortly trial to insulate upon potent likely based evidence offer before liability, reasonably plain- to the evidence was available from fendant though tiff, may qualify as a valid section even defendant’s offer plaintiff investigate did not in know the he to because information failed fact Diesel, Inc., (Elrod supra, pursue discovery.” or Cummins Oregon v. 699-700, added.) at italics Cal.App.3d pp.
There is in the nothing suggest record that facts which defendants believed would that had not terminated Santantonio because of prove they his well him as were But age they not as known to to defendants. defendants’ consciously by taking Santantonio reasons matter disputed trial, thereby making necessary engage experts help for defendants 998, Under defendants are entitled to recover a their case. section prove Santantonio, and nоthing in Elrod share of those costs from provides him evaluate his failing properly statutory with a excuse legitimate exposure. Determining Abuse Its Discretion What Did Not
B. The Trial Court Be Allowed. Costs Should al the trial court improperly asserts repeatedly (a) under section because recoverable cost as a fees expert
lowed the fees; (b) necessary reasonably were not they not actual they were case; (c) sufficiently were not described defendants’ the defense memorandum. cost in defendants’
Santantonio does not trial court’s determination these dispute rule issues can reversed for an abuse governing of discretion. 314-315, Comelson, supra, set forth Evers as v. 163 Cal.App.3d follows: trial
“Defendant that certain of costs awarded complains items and, therefore, *18 the evidence only court were exorbitant and unreasonable of presented plaintiff’s these the declarations support hearsay costs was unreasonable, On counsel. the of the exorbitant issue whether costs were vested the has been courts have a trial court consistently held that where act, acts, set with can discretion to an and it its actions perform so in (9) aside for court stated abuse of As this discretion. [Citations.] Huber, Nichols, 278, Hunt . . : & 315 . (1977) Inc. v. Moore 67 Cal.App.3d ‘The trial court 998 to has discretion Civil section under Code of Procedure allow a (as section) cover prevailing the sum to party defined a reasonable the of was in services The trial court expert witnesses. [Citation.] position, better having the heard entire case and observed the demeanor afar witnesses, to exercise this discretion and was a determine what reasonable of case, amount and what reasonably was we necessary.’ As the Moore should not substitute our over in the judgment judgment of the trial court Here, absence aof clear showing of an abuse of discretion. there has been no such on showing the issues of what was a reasonable amount and what was reasonably necessary. costs,
“As to defendant’s attack on her plaintiffs gener of proof items their ally, face appear ‘[i]f to be proper charges, verified memorandum of prima costs is evidence of their propriety, placing facie ” burden proof added.) of on the (Italics them.’ party attacking effect, same
To the see Balfour, Co. (1980) Guthrie & v. Gourmet Farms 181, Cal.App.3d 192 v. Cal.Rptr. Ryan Stiles Estate [166 422] of (1985) 173 Cal.App.3d 647].) Cal.Rptr. [219 Here, the trial judge justified was that the amounts concluding awarded as fees expert were in fact for services and that those services were reasonably necessary to argu defendants’ case. Santantonio’s ments rest contrary appear to on references to primarily a few selected However, items described in the bills of Welch Associates. the most reliable evidence of what services trial performed testimony actual Ward, Finis Welch and Michael which ignores. Santantonio largely Associates, Welch, The record reflects that Dr. of Welch is an founder economist specializing His statistics and economics. testimony labor
focused on various issues claims concerning plaintiffs’ side of liability Velona were age discrimination. Defendants contended that termination terminated with and that Cochrane had been threatened possible for goals all performance because failed to meet certain specific beginning particular, account executives set KFWB’s management. annual a executive to meet required specific KFWB each account employment. of continued for new as condition budget production business transcript Although complete reporter’s we are not with provided the trial throughout trial it is appeal the briefs on undisputed was performance alleged poor made the effect that their charges numerous included their claims age for discrimination. Some subterfuge deci- for management’s following: justification that there no business for new business goals require specific sion to account executives to meet established keep jobs; budgets their that the new business рroduction *19 executives; account were more burdensome than set for other plaintiffs those execu- that in account management numerous acts to favor other engaged new and make it their business tives for achieve impossible plaintiffs and that even the records to make budgets; management appear skewed execu- that in with other account plaintiffs performed poorly comparison tives, when were better than others who plaintiffs actually performing not or terminated threatened with termination.
Dr. Welch was all engaged by defendants to examine of these contentions his and to them as an His express opinions concerning testimony economist. exhibits, was supported by consisting some of charts and graphs prepared under his direction. As a he that there sampling, legitimate testified was a business need for new rigorous production KFWB’s insistence of upon executive; as job business a condition for one’s an account there retaining as in was of of new pattern age setting no discrimination business budgets executives, for and account and were not plaintiffs’ budgets other others; Santantonio, more burdensome than plaintiffs, including performed them; set for at the time he was on goals relation to poorly discharged 13, 1989, ranked last in he production new business and April 1987; and decline since of budget steady August had been bеlow his of any age treatment nor of plaintiffs, pattern and there was no disparate who dealt with other account executives management in how discrimination goals. their performance failed to meet Welch Associates. by and was employed an economist was
Dr. Ward also loss that to estimate the amount economic He engaged primarily was His reason of their KFWB. leaving by plaintiffs by suffered have been might damages own testimony plaintiffs’ to counter needed testimony Dr. Joyce Pickersgill, and the expert, testimony of Santantonio and Velona could not why they get as to their comparable employment mitigate damages. claimed Dr. Ward’s included preparation conducting survey jobs for available experienced radio and in Los salespeople television and the Angeles average salary paid jobs. for such available Ward, From the foregoing summary testimony Drs. Welch and we conclude that the trial court did not its determining abuse discretion the services of Drs. Welch and Ward were and that expert witness services those services were reasonably necessary for of defendants’ presentation case. Santantonio’s of the argument some some preparation, staff, could have is testimony, provided been defendants’ own through We compelling. conclude that it was reasonable for defendants to have Drs. Welch and Ward relied develop and evidence independently analyze their upon with the aid of their own staff opinions economists other support personnel then such trial present evidence their through and the testimony illustrative exhibits under their prepared direction.5 Lastly, Santantonio argues without under merit that allowed section must limited to the actual time consumed examination court. reference to Government Code section 68092.5 section (h) subdivision to mean that time interpreted any charged fees for trial *20 must not exceed the normal rate. Costs expert’s recoverable under section 998, (c) subdivision include “a expressly reasonable sum to cover of costs witnesses, either, the services of expert . . . or reasonably necessary both, preparation or trial of the (Italics added.) case the defendant.” by Comelson, 310, Evers v. supra, 163 the court ex- Cal.App.3d held that pressly section 998 indeed does cover preparation by trial an expert.
“It to appears reasonable expect expert witness who is going testify at trial prepare to be able to assist the jury on difficult issues. The more is, prepared expert witness he will be. The help more is question whether the of time really by amount trial spent expert] for preparing [the was The court found reasonable. trial that this preparation reasonably and cost necessary that the total was a reasonable amount. Again, absent discretion, an abuse by defendant of of the trial court’s will showing findings (163 at 317.) not be on Cal.App.3d p. disturbed appeal. [Citations.]” $3,345.76, that he have unpersuasive pay 5We Santantonio’s contention should not find exhibits, experts’ they “merely because and of of the cost illustrative or one-third of was in the best position judge their value. The costs are judge The trial little value.” Farms, & Co. v. supra, Cal.App.3d Gourmet Balfour, under Guthrie 192. recoverable also on further hold that section 998 covers The in Evers went court trial, even if do of the case for of who aid experts preparation cost 317.) “Since (163 at The court observed: testify. Cal.App.3d p. not actually for which costs are the services precisely the statute does not specify recoverable, trial within the largely of costs is the determination allowable (Id., 317-318.) at court’s discretion.” pp. his acted within judge
Based that the trial on these we conclude principles, Drs. Welch charged he discretion when allowed not amounts time, their portion Ward their and trial but also a own preparation employees skilled charges itemized for staff economists other separately them who that helped preparation. Appellant the Total Costs to
C. The Court’s Allocatiоn One-third of Was Not Excessive. he have to bear one-third
Santantonio contends should not that the He concedes plaintiffs. because there were three simply the trial was matter for allocation defendants’ costs among discretion, its he the court abused discretion.6 court’s but argues of his following support makes the his brief Santantonio statement evidence its “Substantial that the trial court abused discretion: argument conclusion; that Mr. far did not believe different that Defendants supports defend- instead their efforts on prevail, Santantonio would concentrated Plaintiffs, Mr. Cochrane.” statement ing against especially the other As previously, reference to the record this court. noted any devoid of before transcript appeal. with a on presented complete we have not been reporter’s surely We the record then supports argument assume But we appeal. the relevant the record perfected portion would have the defendants said on a record which demonstrates what are with presented *21 court. filed in the trial their memorandum of costs by examining the subject $100,000 “The offer made to each following: contains the The memorandum in under entirely proper this case was reasonable the three plaintiffs of made to the The offer was consistent with offers plaintiffs circumstances. the cоurt, the defend- the and with conferences before mandatory in settlement of three in of economic losses to each the terms exposure ants’ realistic argument of taken his trial counsel inconsistency position the the with the 6We note concluding moving papers tax trial his to costs. When counsel filed motion plaintiffs’ Santantonio, he seeking to two-thirds of costs from recover their recoverable defendants under only any costs awarded argued percent should have to bear of that Santantonio however, fact, any one-third of costs awarded 1033.5. In section under section opposition to asked plaintiffs’ defendants’ memorandum in tax costs motion to all the costs be one-third of of claimed awarded Santantonio. plaintiffs. although regard, alleges Santantonio that his plaintiff $900,000, projected economist the economic losses excess of projection did not take into account either mitigate Santantonio’s nonexistent efforts to his damages or his in the alleged stellar which would reputation industry presumably broadcasting have enabled him to find other in the field work he had to so. took into the attempted do Defendants’ offer also account common defense the overriding to the action based on all plaintiffs’ subpar performance, work addition the small award an relatively possibility $100,000 оf emotional distress or The punitive damages any of them. offer to each of the plaintiffs was therefore view of justified, particularly the strength and the fact company’s similarity defenses patterns to all three cases.”
Thus, from what we can discern from record this court and provided to contrary to Santantonio’s the fact their argument, that defendants considered $100,000 $900,000 reasonable part because believed his overstated, claim of economic loss was logically does compel conclusion that they concentrated their defending against efforts claims of other plaintiffs. two The record is clear that defendants $100,000 placed exactly the same value on the claims of Velona and Cochrane.
Lastly, Santantonio argues that is a matter of simple arithmetic that he costs, should have the lowest rata pro portion defendants’ recoverable because he was offered lowest of his economic percentage claimed The losses. argument presents obvious non when we sequitur review $100,000 record find that the offered each plaintiff represented smaller of Santantonio’s percentage claim than that of the claims of the other two since Santantonio’s claimed were the economic losses greatest. that, record highly had the suggestive largest anything, efforts, and that he claim would be the focus of intense since defense had more defendants to lose if he prevailed. reiterate,
To the trial judge was the best a fair share allocate position recoverable costs to Santantonio. The court concluded that one-third of the total costs ultimately (after reductions) found to be allowable various was a reasonable allocation. that the Santantonio has not demonstrated *22 allocation the trial by judge anwas abuse of discretion.7 dissent, reading the part gives 7In II permits us already considerable concern. Section 998 court, discretion, the trial via exercise of to matter ability pay consider a to costs. No party’s intended, judicially itself, how well graft to goes beyond such a requirement statute on the statutory mere interpretation and improperly Legislature. invades of the province 126
V.
Disposition respondents. are awarded to is affirmed. Costs of judgment appeal Lillie, J.,P. concurred. First, in reasons. for two
JOHNSON, J., dissent Dissenting. I respectfully Civil the Code of since any costs my shifting view the trial court erred that by as required not unconditional 9981 offer was Procedure section costs, the court Second, to shift some it were appropriate statute. assuming amount setting means to failing appellant’s erred take account the award. All Acceptance by on
I. The Was а Joint Conditional Plaintiffs Offer Offer 998. Thus Invalid Under Section and its in this conditional In view the section 998 case was my offer defendant’s therefore to shift the costs of rejection cannot serve accep- it required because witnesses to The offer was conditional appellant. such, shift under As it not effective to tance all three by plaintiffs. (1975) Cal.Rptr. 73 Cal.App.3d [123 819] Hutchins v. Waters (1989) 212 Cal.Rptr. 826]. Cal.App.3d Meissner v. Paulson [260 a separate the fact did not serve first is with My problem respondent it each three Instead combined section offer on of the plaintiffs. who attorney it joint three in a document and served single offers all representing plaintiffs. happened shifting, of cost can claim the benefits party
Hutchins dictates before a any in writing upon must “served an unconditional party be shown action, several other the actions.” parties other or to each of party view, litigation that in clearly my language requires multiplaintiff if all even individual plaintiff, serve a offer on each defendant must separate only is this attorney. the same Not by to be happen represented statute, it serves important but compelled by language requirement to a offer is individual to ensure each only way This rule is policies. reject if the others even accepted by plaintiff and can be given plaintiff Furthermore, avoiding any ambiguity way it is the best their offers. upon deрendent and not of these offers is unconditional whether each of what example Indeed is a good all the instant case parties. acceptance is a parties. when the offer combined offer several happens indicated. are unless otherwise references Code Civil Procedure statutory 1All
127 however, A still more fundamental of the offer objection, is the nature embodied this document. critical the offer is single many places, At in the written the it a tenable but plural conjunctive. only Indeed is three a most offer to all reasonable inference the document sets forth a joint only the offer. The plaintiffs that all had to accept three plaintiffs it instance where where apportions the offer does not the is speak plural $100,000 plaintiff. the total to each setting amount it at among plaintiffs, read When conditional. clearly context offer to looks compromise For example, in its the document states defendants passages, most critical “hereby in the plaintiffs judgment against following . . . take them offer amounts” The infer- “plaintiffs may proof acceptance.” proper file of ence is the offer must be all three inference is by plaintiffs. This accepted reinforced other The first portions of document. reference to three, Velona, is plaintiffs to all Mr. Mr. and Mr. The Cochrane Santantonio. $100,000 numbered paragraphs the section 998 each apportioning offer at are also stated in the conjunctive. The other reference plaintiffs collective, or to of them any is stating “Plaintiffs” file a [plural] “may of proof acceptance" [singular]. The had plaintiffs to act together accept offer, therefore, the section and, 998 it rendering conditional invalid for of purposes assessing costs of under any Hutchins. majority to dismiss this prepared argument entire . the because “. . record on appeal does not reveal that this issue was raised the trial court.” ante, (Maj. However, 113.) at opn., p. interpretation an integrated law, instrument or writing is a question of as is the of a statute. interpretation Witkin, Procedure, (9 ed., Cal. (3d 242 1985); Appeal § Parsons v. Bristol 861, Development (1965) Co. 62 Cal.2d CalJRptr. 402 P.2d [44 839]; (1988) Estate Butler 205 Cal.App.3d 210].) Cal.Rptr. [252 whether Accordingly, the section was valid on face may its reviewed de novo this court. Extrinsic evidence would have been irrele- vant if tendered the trial court. Consequently, failure to any raise this issue particular below does not deprive any court of re- information quired to the document properly interpret presenting this section 998 offer.
II. This and Like Award Section 998 Awards Threaten to Distort Litigation Incentives and Behavior Unless Scaled in to the Size Comparative Litigants. Economic Resourсes the Competing I Even if to shift some agreed appropriate appellant 998, I would reverse and to section remand pursuant reappraisal view, could be properly my the costs which shifted. the trial amount of *24 128 in
court erred to economic and to include failing appellant’s assess resources in trial include this that factor its calculation of the cost award. Unless courts will in distort they factor the costs to be shifted under section setting pursu- from litigants settlement incentives and individual unduly discourage in ing reasonable courses of action the courts. in the section a shifting major purpose
There is no doubt cost performs incentive to an added the the offer receiving It process. gives party reasonably gen- a means accepting reasonably. behave Reasonable behavior To one. unreasonably stingy an offer. But it also means rejecting erous behavior, therefore, of costs which the the amount encourage reasonable terms, but in absolute also be reasonable may just shift must reasonable. Not If modest income the offeree. with the of reasonable resources comparison $100,000 if they reject to of imposition are risk the litigants required offer, any offer, even a to such they accept section 998 will feel compelled if of at trial. winning far a it is below what have reasonable they prospect here, institution, if the is as it was Particularly the a opposing party large a can’t afford to It is like to casino average person gamble. going a no with one paycheck limit the “house” week’s entering game against only in the bank.2 (1986) Young Cal.App.3d Cal.Rptr. Covenant Mutual Ins. Co. v. 326-328 2In [225 context, 861], way court some discussed of these economic incentives in different one however, fee-shifting average statute. The basic remain the same. The individual principles, aversive,” considering litigation litigation to be or involved in is “risk indeed cannot afford hand, can anything litigants “repeat players,” else. Institutional on the other afford other adopt preference” to be “risk neutral” and indeed individuals often can a “risk individual, average litigation This the with a choice which strategy. means when confronted lose, accept unreasonably a risk that costs will be should will carries shifted that individual unfavorable offer order to avoid that risk. (damages sought multiplied by probability obtaining if the value" of those “expected Even $200,000 compelled damages) litigants might of a or more well feel to case is individual $100,000 unwilling and just they or because are averse and unable accept an of less risk $100,000 having they to to side accept pay the witness fees the other risk might required to many they pay Indeed for individuals of modest means the risk lose. $100,000 filing lose a case in they costs should will dissuade them from the first other side observed, diminishing analyst “given marginal risk and the place. As one aversion economic wealth, having pay other side’s fees can so utility threat loom of income and disposable deters the pursuit considerable assets that it large person in the mind of a without (Rowe, Predicting or claim defense.” fairly promising of even a substantial Effects of 139, 153.) & Probs. (1984) Contemp. Attorney Shifting Fee 47 Law litigants may litigation compelled modest income well feel on the Even if do embark appears during cost-shifting possibility proceed- course of the case drop when burden, they compelled this kind of financial would feel to absorb ings. Lacking the resources sum, game is if in the hand of a nothing. poker It as final with or accept nominal suddenly the ante to an players raises amount most “house” can’t pot everything litigation, fair. In the world as regard that unfair. It one would No afford. settlements. unjustified economically unjust and
leads to the need to cost adjust assessments recognized courts have Marriage this court in In re means in other For parties’ example, contexts. *25 354], (1988) family 206 held courts are Cal.Rptr. Norton 53 Cal.App.3d [253 determine the financial resources before required parties’ comparative to other, reason for the shift shifting fees from one to the even when the legal In to the the encourage reasonably during litigation. to behave parties Norton, during the trial court found wife had unreasonably behaved negotiations settlement with her husband and other before the proceedings 4370.5, A court. then enacted Civil Code section author- newly provision, ized family judges unreasonably court to had behaved require spouses who law, to pay legal their spouses Using fees incurred as a result. this wife, court shifted a part legal husband’s fees to the but after careful being to determine the equal were of means. parties This court affirmed the shift of fees from the husband to the wife. legal But we took care to we have if emphasize judge would reversed the trial had not ascertained the wife’s economic situation this before burden on placing her. We held this was a requirement, despite the fact Civil Code section at 4370.5 that time failed to mention about the needs anything respective or financial resources of the litigants.3 As we competing explained:
“The of Civil Code purpose section 4370.5 is encourage reasonable litigation and settlement in marriage behavior dissolution The proceedings. not to purpose is cause undue discourage nor to from hardship parties Therefore, pursuing meritorious actions. may the other not be entitled party to an award of all fees and he or she the proceedings.” expended wives,
“Less affluent partiеs, typically may unduly discouraged be from vigorously prosecuting legitimate claims and defenses if they face the prospect having pay substantial cost and fee awards the other side. This will be problem there is a compounded gross disparity resources. The other side will not feel the same inhibitions since this wealthier party will not find it so nearly hard to pay any may award the court for its impose litigation behavior. This creates imbalance in the incentives to behave appropriately during settlement negotiations and litigation. Economic anal ysis suggests the less affluent party will behave too during litigation timidly and accept unfavorable settlement facing terms when who is less party concerned about economic possible disincentives of a hard line. taking (See Covenant Mutual (1986) Ins. Co. v. Young 179 325- Cal.App.3d , Norton, 327. . . therein.)” authorities cited (In Marriage supra, re 206 Cal.App.3d 59-60.) Norton, 3Subsequent to our decision in Civil Code Legislature amended section 4370.5 to include express language requiring parties’ respective means before courts to ascertain the setting the direction and section. shifting amount of fee under that code any decisions, courts also trial appellate recognized In have of recent pair other economic status imposing courts must take of a before party’s account arose when courts ordered costs on them. Both of these cases trial litigation to sections by “private judges” pursuant matters to heard discovery “references,” the court the parties 645.1. As is such ordered typical divide performing fees task. private judge’s case, (1993) Superior v. Court 18 Cal.App.4th first Solorzano 401], court parties indigent. appellate one of Cal.Rptr.2d [22 order, could compelled reversed the not be holding indigent party *26 The fees in forma pay pauperis provisions. these because state’s case, (1994) 22 Superior [27 Cal.App.4th second McDonald v. Court 310], indigent. means rather than an Cal.Rptr.2d person involved of modest case, in In cost which resonates this court opinion emphasized class from having assessments be used to middle citizens discourage cannot effective resort to either. the courts in ‘Fees
“As in in forma discussing pauperis stated plaintiffs: Solorzano $300 $200 to referees per charged by privately compensated discovery hour enforce- allow affluent to avoid litigants discovery compliance by pricing plain- ment of demands the means of legitimate discovery beyond indigent trial advantage directly tiffs. This based on wealth flows from the court’s and an indigent order division of fees between imposing equal adverse of far means.’ The same litigant superior policy financial [Citation.] one financial far superior considеrations where has resources apply party who, in to an while has opposing party proceeding pauperis, forma Court, (McDonald Superior supra, limited means.” v. clearly financial 364, 369, added.) italics Cal.App.4th
Just as trial courts must avoid unreasonable costs on discovery imposing income must other of unreasonable litigants they shifting modest avoid types costs to if the is to be fair litigants litigation those same litigation process In just and to results.4 order to balance incentives produce properly litigation under section the amount fair and reasonable settlements produce the comparative the fees shifted scaled to be proportionate must be $100,000 of a cost competing prospect financial resources of the parties. accept incentive section 998 settlement shift a reasonable may represent means, resources. For modest persons if ample the offeree has impose held it was unfair costs of few hundred or court at 4Notably, the McDonald case, litigants. In modest income the instant we on are a few thousand dollars most $100,000 litigants. in costs on same or more this class of imposing considering the effect of prohibit discovery court to the McDonald references which led when Obviously, the concerns involved, greater apply with much force to massive cost litigants shifting are income modest to section 998. pursuant granted awards threat, however, $100,000 as a terrifying will loom one calculated to in distort their and force them to cave low decisionmaking unreasonably section 998 offers.5 Since the trial court made no into inquiry appellant’s status, $100,000 financial we know do not for sure whether was a reasonable disincentive for like or cost someone whether amount this appellant shift must be in order to scaled back avoid irrational and unfair results hand, (On future three litigation. the other we do one of the other know plaintiffs this case had or to declare whole bankruptcy, presumably $100,000 part costs.) because of the threatened assessment of the Civil Code section 4370.5 construed in and 645.1 Norton and sections 639 construed in and McDonald allow the trial court discre- expressly Solorzano fees, costs, instances, tion in imposing or other litigants. both expenses appellate courts have held trial courts abuse this fail to take discretion account of the adverse impact average substantial cost shifts visit on the citizen who is to use trying Similarly, the courts. section 998 confers discretion on trial courts deciding whether and how much of expert witness fees and preoffer costs an unsuccessful must That litigant pay. *27 court, discretion, section provides: may its the require plaintiff “[T]he the pay defendant’s costs from thе date of of the and a filing complaint witnesses, sum reasonable to cover costs of the services of . . . expert either, both, actually incurred and or reasonably necessary the preparation 998, or trial of the case . . .” (§ (c), added.) . subd. italics The bulk of the costs the trial court shifted appellant this case 998, consisted of witness expert fees.6 Under the of terms section the trial court had Moreover, discretion to refuse to shift these fees at all. since the empirical 5There is support study for this proposition English in a of the version of California’s procedure, section country 998 which in “payment is called the into court” 998, system. As is true under section a plaintiff judgment must obtain a favorable more than however, the statutory defendant’s consequence. offer or suffer the England, In that means paying the legal defendant’s study reasonable fees as well as costs. The revealed that out of cities, a sample personal injury of 664 cases studied percent in four 41 involved a payment into court. fully percent plaintiff of cases money 90 those the accepted “payment the in” however, the defendant virtually tendered. In all the remaining percent, the cases where trial, courage the “payment had to refuse the in” they and went to damages received larger than paid study the amount in. This led the many author of the to сonclude of those who had accepted “payment they in” also would have won at the figure more trial than for, against settled but decided because they possibility trial could not afford to risk the of (Zander, having to fees and costs. pay Litigation—A Study defendant’s Costs of 680; Zander, (June 1975) Society’s Division Law English Bench Gazette Is the Queen’s Copying? (1976) 750.) Payment-Into-Court Worth study Rule Rabels Zeitschrift This is (edit.), Cappelletti Emerging and Garth Access to Justice: Perspec discussed in Issues and 44-46, 54-56.) (1979) tives pp. grounds argued alternative the two 6Since I consider in this dissent more than sufficient to award, yet I do not reducing of this cost discuss justify expert reversal further reason for shifted for this “a sum” the trial court amount to be reasonable purpose had to reduce this element of the award to a sum below also discretion cost Construing what witness respondents reasonably paid services. Norton, laws, Solorzano, held it proper, and McDonald comparable essential, how indeed their exercising trial courts discretion determine litigant paying cost would affect the who would be proposed shifting in amount. just those costs not whether costs were otherwise reasonable with What said in Code 4370.5 applies this court 1986 about Civil section 4370.5 “Nothing [nor force to section in the of section equal language 998. or section unfair settlements suggests designed it is to encourage 998] with entirely timid Indeed it is consistent inаppropriately litigation behavior. compar these code for trial courts to take account [either sections] ative wealth litigants disparities wealth of and the effect of competing may they behavior when fee and cost awards litigation they any fashion one What is a award for impose pursuant reasonable [these sections]. For, . trial . . on the other. unless party may unreasonable imposed such any they courts ‘scale’ awards to the wealth of the comparative parties he she or may discourage economically filing weaker from actions party (In re should and from those pursuing actions with deserve.” vigor )7 Norton, Marriage supra, 206 Cal.App.3d 60. Since so section 998 trial courts to take account clearly allows discretion of these considerations fairness and behavior when implicating litigation awards, I deciding shifting cost find it discuss a statute unnecessary us, before which shifting now one mandated substantial unsuc- cost *28 cessful Suffice it to in view such law would litigants. say, my grave a raise in greater length constitutional issues. For reasons discussed above and at Mutual, Norton, supra, a supra, Covenant and there is such great danger represents witness of the award component percentage payments award. A substantial of that nonexperts analyzed used compiled respondents’ experts prepаring to who data in giving testimony. payments nonexperts their It is at all clear these within the not me fall statutory recompense of “costs the services of witnesses” entitled to under definition of section 998. “to opinion, it is conceded the trial court had discretion majority 7In 7 of footnote footnote, however, is suggests This then somehow ability pay a costs.” it party’s consider require trial to consider factor when appellate judiciary courts this beyond the role of the so, amount cost awards section this court to set the of under 998. If exercising discretion their As did the courts which decided and McDonald. Norton as exceeded its role in Solorzano above, appellate imposed requirement cases trial these courts all three of discussed discretion, exercising though explicitly their even was not when this factor courts consider suspect literally those I of cases. there are thousands at issue statutes in the mentioned my colleagues, out spelling written Division Seven some of them opinions, appellate exercising to consider when their under expected are discretion courts trial which factors statutes, those factors are not the statutes though explicitly mentioned even various primary functions of appellate is one of courts. this Indeed themselves. provision deny average would citizen the access due to the courts which process and equal protection guarantee. laws It would make Califor- nia’s regular civil courts the the re- litigants exclusive with province sources to play high stakes game litigation poker.
There is cost another reason we to ensure should be careful especially shifting under might section 998 is discour- permitted in amounts which age plaintiffs from filing litigation type vigorously pursuing involved this case brought case. and his Appellant fellow plaintiffs under civil rights statutes designed to enforce government policies age discrimination. section amounts which Allowing shifting 998 cost distort settlement incentives governmental to the counterproductive pur- pose of encouraging what individuals typically pursue are modest income private relief under these laws. By such cost courts sanctioning shifting, discourage those same modest income relief and seeking individuals from thereby from enforcing those important against discrimina- public policies tion. I
To sum up, would reverse this cost shifting award based on the outright fact it was the product of conditional section which or required appeared to require acquiescence all three plaintiffs. assuming But section 998 offer were I would proper, reverse and remand for a determina- tion whether the amount of that I award was proper. would instruct the trial court to reconsider that question light of its impact litigation between average Californians of modest income and economically powerful institu- tions or individuals.