For Better or For Worse, Court Finds Joint 998 Offer To Husband and Wife Sufficient Basis For Expert Witness Fees and Costs Award

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In Farag v. ArvinMeritor Inc., 2012 DJDAR 5206 (April 24, 20120), the California Court of Appeal for the Second Appellate District affirmed a post-judgment order denying plaintiffs’ motion to tax expert witness costs. Defendant sought these costs pursuant to California Code of Civil Procedure section 998 after defeating plaintiffs’ claims at trial.

Plaintiffs husband and wife sued defendant, among many others, after the husband was disabled by mesothelioma. Plaintiffs alleged that the husband was exposed to defendant’s asbestos-containing products while working on cars. Prior to trial, defendant served a section 998 offer to compromise of $0.01 on plaintiffs jointly. Plaintiffs did not accept this offer and proceeded to trial. The jury returned a verdict in defendant’s favor. Defendant then submitted a memorandum of costs for approximately $11,033 for expert witness fees as well as $2,173 in expert travel costs, based on the rejected section 998 offer. Plaintiffs filed a motion to tax these costs which was denied.

On appeal, Plaintiffs claimed that the section 998, made jointly and unallocated to husband and wife, was void in the absence of a showing the offer provided fair and reasonable value. The appellate court rejected this claim.

The appellate court first found that plaintiffs failed to properly raise the issue of whether a section 998 offer made jointly to a husband and wife was void in the trial court, and therefore waived the ability to raise it on appeal.

The court also rejected plaintiff’s claim as a prior court in Barnett v. First National Ins. Co. of America, 184 Cal.App.4th 1454 (2010) concluded that a section 998 offer could be made jointly to spouses because, under California’s community property law, a cause of action for personal injury damages is community property and either spouse can accept an offer to settle that claim on behalf of the community. The court found that defendant’s joint section 998 offer was valid, and affirmed the post-judgment order.