Court of Appeal:
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed an order granting a prevailing defendant her expert witness fees because the plaintiff had snubbed a Code of Civil Procedure §998 offer to settle for $12,000 and wound up with a jury’s award of no damages, rejecting the plaintiff’s contention that the offer was a sham because the defendant had made the identical offer before litigation commenced and it was refused.
Presiding Justice Laurence D. Rubin wrote the opinion, which was not certified for publication. It affirms an order by Los Angeles Superior Court Judge Frank J. Johnson.
“If a plaintiff rejects a pre-litigation settlement offer, is it reasonable for a defendant to repeat that offer a second time after plaintiff files a complaint? The answer is: It depends. The answer determines whether the defendant can recover certain costs, including expert witness fees, after receiving a more favorable verdict at trial. Under Code of Civil Procedure section 998, only a defendant who makes a reasonable offer to settle can recover its costs.”
Plaintiff Linda Mkhitarian, who sued for injuries after being rear-ended at low speed, argued that defendant Dorothy Ann Jackson had no reasonable expectation that her $12,000 offer, made at the time she served her answer, would be accepted because such an offer had already been spurned.
The presiding justice responded:
“Whether or not plaintiff acted reasonably in rejecting this offer is not before us….We look to whether the offer itself was reasonable under the circumstances, and not the offeree's subjective perception of that offer. Thus, even when an offer is repeated, as it was here, we objectively evaluate the offer's reasonableness based on the evidence available to the parties, and not based on whether the offeree was, in fact, inclined to accept it.
“Here, we presume that defendant's offer was reasonable because defendant obtained a more favorable outcome at trial.”
Rubin noted the existence of evidence pointing to reasonableness including the facts that the accident occurred at low speed and only soft tissue damage was incurred. He remarked:
“[W]e know of no rule that disqualifies a section 998 offer simply because it is the same as an offer made prior to litigation. A defendant's willingness to make a pre-litigation offer should not foreclose automatically a reinstatement of the offer made four months later under the benefits of section 998.”
That factor, like others, he said, “becomes part of the mix to be considered by the trial court in exercising its discretion.”
The case is Mkhitarian v. Jackson, B306198.
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