Weekly Law Resume - April 5, 2012: Unilateral Attorney Fees Clause in the Elder Protection Act Does Not Preclude Award of Costs and Expert Witness Fees to a Prevailing Defendant Under C.C.P. § 998

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Katherine Lee Bates, et al. v. Presbyterian Intercommunity Hospital, Inc.Court of Appeal, Second District (March 12, 2012)

Appellant Katherine Lee Bates (“Bates”) was the administrator of the estate of Rinda Lou Bates (“Rinda”). Bates sued respondent Presbyterian Intercommunity Hospital, Inc. (“PIH”) and several other defendants for injuries suffered by Rinda prior to her death. Following surgery for a broken hip at PIH, Rinda was discharged to her home under the care of nurses employed by Arcadia Home Health (“Arcadia”). Rinda developed a serious pressure sore over her coccyx which became severely infected, causing her death. At trial, Bates contended that the Arcadia home nursing staff failed to properly assess the severity of the pressure sore and immediately seek emergency treatment. Bates asserted that PIH was responsible for the negligent actions of the Arcadia nurses because PIH was a “licensee and operator” of Arcadia.

Before trial, PIH served a § C.C.P. 998 offer to Bates, offering a mutual waiver of costs and waiver of PIH’s claim for malicious prosecution in exchange for a dismissal of PIH with prejudice. Bates did not accept PIH’s C.C.P. § 998 offer, and it expired. At trial, Bates voluntarily dismissed her claims against PIH. As the prevailing party, PIH submitted a cost bill to Bates seeking $83,713 in costs, including $64,826 in expert witness fees based on C.C.P. § 998. Fees of experts not ordered by the court are ordinarily not recoverable as costs under C.C.P. § 1033.5. However, pursuant to C.C.P. § 998, if a defendant makes an offer to compromise that is not accepted “and the plaintiff fails to obtain a more favorable judgment or award,” the plaintiff “shall not recover his or her post-offer costs and shall pay the defendant’s costs from the time of the offer.” Section C.C.P. § 998 also provides that the court or arbitrator may require the plaintiff to pay expert witness fees actually incurred and reasonably necessary to the defense at trial or arbitration.

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