Opinion
B228340
11-09-2011
KENNETH R. EVANS, Plaintiff and Appellant, v. DWIGHT WYMORE et al., Defendants and Respondents.
Law Office of Jeff M. Yoss and Jeff M. Yoss for Plaintiff and Appellant. Gates, O'Doherty, Gonter & Guy, Peter J. Gates and Rebecca T. Amirpour for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YC058137)
APPEAL from an order of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. Affirmed.
Law Office of Jeff M. Yoss and Jeff M. Yoss for Plaintiff and Appellant.
Gates, O'Doherty, Gonter & Guy, Peter J. Gates and Rebecca T. Amirpour for Defendants and Respondents.
We affirm the trial court's order awarding costs to respondents following appellant's voluntary dismissal of his lawsuit. Appellant demonstrates no error.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2008, Kenneth R. Evans filed a complaint against his neighbors Dwight and Marian Wymore (the Wymores or respondents) alleging causes of action for conversion, trespass, nuisance and injunctive relief. On November 30, 2009, former counsel for Evans wrote counsel for respondents stating that due to postsurgical complications he would not be available for depositions. On December 9, 2009, former counsel for Evans informed respondents that he was withdrawing from the case.
On December 21, 2009, the Wymores presented an offer to Evans to compromise pursuant to Code of Civil Procedure section 998 (998 offer). The 998 offer provided for a zero dollar judgment and contained an express waiver of costs of suit by respondents. The 998 offer stated that it would remain open consistent with section 998, subdivision (b)(2), which provides that the offer is deemed withdrawn if not accepted within 30 days after it is made or before trial, whichever is first.
Undesignated statutory citations are to the Code of Civil Procedure, unless otherwise stated.
On March 19, 2010, the Wymores file a motion for summary judgment. On May 20, 2010, the court denied Evans's request to continue the hearing on the motion for summary judgment, and the next day, Evans dismissed his complaint without prejudice. The deputy clerk entered the dismissal May 21, 2010.
Following the dismissal, the Wymores sought costs including expert witness fees incurred after the 998 offer had been made. Evans filed a motion to strike costs, which the court granted in part and denied in part. The court awarded costs pursuant to section 1032, finding the Wymores were prevailing parties. The court granted expert witness fees from the time of the Wymores' 998 offer because Evans did not accept the Wymore's 998 offer and did not receive a more favorable result. The court denied Evans's request to strike expert witness fees for Dennis Harkins, Robert Herkus, Rafael Bernal, and Roy Itani because those persons were nonretained expert witnesses, not merely percipient witnesses. The court granted Evans's request to strike expert witness fees as to John Huerta. The court denied Evans's request to strike the jury fees because the fees had been incurred and no party had requested a refund. Evans appealed from the ordering denying in part and granting in part his motion to strike costs.
We conclude the order is appealable.
DISCUSSION
We consider Evans's arguments that the trial court abused its discretion in finding the Wymores were prevailing parties; that the court erred in imposing expert fees pursuant to section 998; and that specific fees should have been stricken. As we explain, none of appellant's arguments has merit.
1. Evans's Alleged Physical Condition
Evans argues the court abused its discretion in finding respondents were prevailing parties because Evans stopped pursuing the lawsuit as a result of his failing health. Evans states that he dismissed the complaint because of his physical illnesses and, under such circumstances, the court could have found neither party prevailed. The trial court heard argument on this point and apparently rejected Evans's argument. The trial court was not required to credit Evans's view that the reason he dismissed his case was due to his health. Although the record contains evidence that Evans was elderly and suffered from several illnesses, the court could have inferred that Evans dismissed the lawsuit to avoid a ruling on the Wymores' summary judgment motion. The timing of the dismissal - the day after the court denied Evans's request for a continuance - supports that inference.
Even if the trial court had credited Evans's statement that he dismissed the lawsuit as a result of his health, Evans cites no authority for the proposition that there is an exception to a cost award under section 1032 based on the health of the plaintiff. This case is not like Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, in which the court found no prevailing party because the plaintiff dismissed the complaint as part of a global settlement. Nor is this case like Gilbert v. National Enquirer, Inc. (1997) 55 Cal.App.4th 1273, 1277, the only other authority relied upon by Evans. In Gilbert, the plaintiff argued that she dismissed certain causes of action to expedite an appeal, and the court denied the other side fees and costs, finding no party had prevailed. Gilbert suggests that a court has authority to find neither party prevailed, but does not show a contrary finding in this case constituted an abuse of discretion. In short, Evans fails to show an abuse of discretion.
2. 998 Offer
Evans argues the Wymores' 998 offer was a "token" offer and therefore cannot establish a basis for awarding expert witness fees. Evans's premise is that the Wymores' offer could not have been legitimate because it was sent to Evans's former counsel, when he was ill.
"To be valid, a section 998 offer must be made in good faith, which requires that the offer of settlement be '"realistically reasonable under the circumstances of the particular case. . . ."' A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test. '[W]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.' [¶] '"Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court."'" (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528, citations omitted.)
Evans has not demonstrated an abuse of discretion. The trial court was not required to credit Evans's view that the Wymores' timed the offer to prevent a response from Evans's counsel. The court could have instead credited the Wymores' view that the offer was made at a time when they could avoid incurring fees for a motion for summary judgment. Additionally, Evans's delay in retaining new counsel (from December 9, 2009, to January 25, 2010) cannot be attributed to the Wymores. Evans's new counsel did not request an extension of time to respond or suggest the offer would have been accepted had it been made after new counsel was retained.
For purposes of this appeal, we accept the representation of Evans's counsel that he substituted into the case on January 25, 2010.
Evans also argues that in light of the strong merits of the case, the Wymores' offer was merely token. Again, Evans's argument is based on a factual premise that the trial court was not required to credit. Although Evans claims that his case was strong, his subjective belief does not show the trial court was required to reach that conclusion. The fact that the offer only waived costs does not establish it as token. "A defendant's offer to waive costs may carry significant value to the plaintiff because, if accepted, it eliminates the plaintiff's exposure to expert witness costs." (Essex Ins. Co. v. Heck, supra, 186 Cal.App.4th at p. 1529.) """["]The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power."'"'" (Ibid., citations omitted.) Evans has not shown such abuse of discretion.
3. Amount of Costs
Evans challenges small amounts (ranging from $150 to $631) paid to Harkins, Herkus, Bernal, and Itani. Evans argues that these were employees of Los Angeles County and pursuant to Government Code section 68093 could be paid only $35 a day. The trial court found that these persons were nonretained experts not merely percipient witnesses. Evans demonstrates no error in this finding and he cites no legal authority supporting his claim that government employees who serve as experts cannot be paid more than the $35 rate in section 68093. Nor does Evans show the court erred in charging $150 for jury fees when such fees had not been returned to the Wymores. Finally, Evans challenges fees paid to Huerta, but the trial court granted his motion to tax those costs.
Government Code section 68093 provides, "Except as otherwise provided by law, witness' fees for each day's actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile."
In his reply brief, Evans argues for the first time that the court abused its discretion in refusing to continue the hearing on the Wymores' summary judgment motion. Evans's notice of appeal however is only from the cost order and therefore the refusal to grant a continuance is not encompassed by the notice of appeal.
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DISPOSITION
The order is affirmed. Respondents are entitled to costs on appeal.
FLIER, J. We concur:
BIGELOW, P. J.
GRIMES, J.