Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 445977
Haerle, Acting P.J.
I. INTRODUCTION
Appellant, an unsuccessful plaintiff in automobile-accident personal injury litigation, appeals from a post-trial court order denying his motion to tax costs and awarding the defendant in the action over $122,000 in costs. The order was based on defendant’s tender and plaintiff’s rejection of a pretrial settlement offer made pursuant to Code of Civil Procedure section 998 (section 998). We affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 24, 2003, the parties were involved in an admittedly minor automobile accident on Conkling Street in San Francisco. Defendant and respondent Nguyen backed his Lexus into the front of plaintiff and appellant Jordan’s Lincoln Town Car, while appellant was inside it. The Lexus suffered no damage, but appellant’s Lincoln sustained a little over $1,700 in damage to its front bumper cover assembly, front bumper, and header panel. Photographs of the Lincoln taken soon afterward disclosed little visible damage.
Almost 11 hours later, and after apparently working that day, appellant went to the emergency room of a hospital. Appellant was, at least then, a permanent dialysis patient and has a catheter for treatment of that condition. At the hospital, appellant complained of a chest pain at the site of his catheter, stiffness in his neck, and pain in his left foot. The emergency room doctor diagnosed a cervical strain, ordered an x-ray of appellant’s left foot, and noted that all but one of the stitches securing appellant’s catheter were in place.
Eleven months later, on September 14, 2004, appellant sought treatment for stiffness in his neck. Testing showed a cervical spine fracture at the C1-C2 level; a short time later, appellant underwent surgery for a spinal fusion at that point.
Appellant and his wife (suing for loss of consortium) filed their complaint in San Francisco Superior Court on October 21, 2005, asserting negligence against respondent. After discovery but prior to trial, specifically on October 17, 2006, appellant served a section 998 offer of settlement on respondent, offering to settle the case for $100,000. The following month appellant’s counsel demanded $800,000 to settle the case.
On January 16, 2007, respondent served a section 998 offer on appellant offering to settle the case for $4,000. The offer was not accepted, and expired. On March 26, the case proceeded to trial before the Honorable Donald Mitchell. During the ensuing jury trial, both sides presented expert medical testimony, evidence regarding the accident, including photographs, etc. The defense admitted liability but asserted lack of causation, i.e., that the collision did not have sufficient force to cause the back injury allegedly sustained by appellant. Respondent’s medical experts testified that appellant had a congenital defect where his skull meets his first vertebrae, which destabilized the juncture of appellant’s spine and skull and caused the instability at the C1-C2 juncture. This theory, respondent’s counsel asserted to the trial court, was well understood by appellant’s counsel both prior to trial and to the tender and expiration of respondent’s section 998 offer.
All further dates noted are in 2007.
On April 17, the jury returned a verdict finding respondent negligent, but the accident not the cause of appellant’s injury. It did not, therefore, award appellant any damages.
On May 14, judgment was entered in favor of respondent. As a consequence of this and the earlier non-acceptance of his $4,000 section 998 settlement offer, on the same day respondent filed a memorandum of costs asking for, in total, over $133,000 in costs; the bulk of these were composed of expert witness fees.
On June 4, appellant filed a motion to tax costs. In it, he made essentially the same three arguments he makes in this appeal, namely: (1) respondent’s section 998 offer was defective under that statute, (2) the offer was unreasonably low, and (3) the cost bill contained several unnecessary and unrecoverable costs.
Respondent filed an opposition to this motion and appellant a reply to that opposition. Judge Mitchell heard argument on the motion on August 16. On September 5, the court issued its order, the order appealed from here, essentially denying the motion to tax costs. It found respondent’s section 998 offer to be valid and reasonable and, hence, appellant required to pay costs in the total amount of $122,818.59 from the date of respondent’s section 998 offer. The court did, however, and pursuant to concessions from respondent, reduce certain costs originally claimed by respondent, e.g., expediting fees for certain deposition transcripts, exhibit fees, etc.
Appellant filed a timely notice of appeal from this order.
III. DISCUSSION
We have summarized appellant’s three arguments on appeal above. We will deal with them in the order mentioned.
A. The Trial Court did not Err in Finding Respondent’s Section 998 Offer Valid.
In 2005, subdivision (b) of section 998 was amended by the Legislature to add this new sentence: “The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” Respondent’s January 16 section 998 offer did not contain wording stating, in substance or effect, that the appellant could “indicate acceptance of the offer by signing a statement that the offer is accepted.” Appellant maintained in the trial court, and continues to maintain here, that the requirement of the 2005 amendment for the inclusion of the language specified was mandatory and, therefore, respondent’s $4,000 section 998 offer fatally defective.
First of all, we note that the parties agree, as do we, that our review of this issue is de novo. (See, e.g., Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268 (Elite); Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 625.)
The principal authority which, in our view, is pertinent to this issue was decided a year before the relevant amendment to section 998, subdivision (b), but it nonetheless enunciates a principle which seems to us controlling in these circumstances. We refer to Berg v. Darden (2004) 120 Cal.App.4th 721 (Berg) a decision of a panel of the Second District. In that case, a personal injury plaintiff’s counsel faxed a section 998 settlement offer to defense counsel’s office, offering to settle his client’s case for $225,000. Defense counsel told his client that he did not believe the faxed section 998 offer “was a valid” section 998 offer and never responded to the faxed letter. (Id. at p. 725.) After a jury trial, the plaintiff recovered approximately $524,000 and, predictably, her counsel moved to recover expert witness expenses, etc., from the date of the earlier, rejected, section 998 offer. The trial court granted a motion to tax costs on the ground that the successful plaintiff and her counsel had made an “ineffective section 998 offer.” (Id. at p. 726.) The court of appeal disagreed and reversed.
In Berg, the alleged ineffectiveness of the section 998 offer, at least per the objecting defendant, were because “the offer failed to indicate whether she (1) sought to have judgment entered against Darden, (2) sought to have an ‘award’ entered in her favor, or (3) was willing to dismiss her malpractice action with prejudice.” (Berg, supra, 120 Cal.App.4th at p. 728.) Apparently, according to the appellate court’s decision, the purported section 998 offer by plaintiff’s counsel to defense counsel was “the last paragraph of a letter addressed to other issues.” (Ibid.)
Although readily agreeing that the “settlement offer undoubtedly could have been more formal . . . and could have been stated with more precision,” the Berg court held that neither consideration (nor its transmission via fax rather than formal service) rendered the offer invalid under section 998. The court explained, in language we find most pertinent here: “It is in the best interests of the parties and the court that section 998 offers be as clear, straightforward and thorough as possible. To advance the important purposes of clarity of understanding and ministerial ease discussed above, courts have found that ‘the legislative purpose of section 998 is generally better served by a bright line rule in which the parties know that any judgment will be measured against a single, valid statutory offer . . . .’ [Citations.] Nevertheless, we do not find fatal Berg’s failure to reference the specific method by which she proposed to dispose of the case should Darden decide to accept her offer. [¶] A statutory offer of compromise is effected once a party to a lawsuit serves ‘an offer in writing upon any other party to the action to allow judgment to be taken. . .in accordance with the terms and conditions stated at that time.’ (§ 998, subd. (b).) If no other ‘terms and conditions’ apart from the consideration required to consummate the settlement are specifically set forth, then the offer, by virtue of default to the statutory language, is simply intended as one to ‘allow judgment to be taken’ in exchange for the specified amount of funds. An otherwise clear section 998 offer is not rendered invalid simply because it does not track precisely the language of the statute.” (Berg, supra, 120 Cal.App.4th at p. 728, emphasis supplied.)
The Berg court then discussed general principles of statutory construction, the fact that defense counsel understood the faxed letter to “contain a section 998 offer of compromise, albeit one he believed ineffective” (Berg, supra, 120 Cal.App.4th at p. 729), and several earlier and analogous cases. It then returned to its main theme: “So long as it is clear that the written offer of compromise is made under section 998 and, if accepted, will result in entry of judgment—the expected and standard procedural result unless specific terms and conditions stated in the offer provide otherwise—the offer need not identically track the language of the statute under which it is made. If the offeree is uncertain about some aspect of the offer, or would prefer the action be dismissed rather than have a judgment entered against him, he is free to explore those matters with the offeror, or even to make counterproposals during the period in which the statutory offer remains outstanding. By doing so, he will not run the risk of having the original offer revoked and may still accept that offer on the terms extended.” (Berg, supra, 120 Cal.App.4th at pp. 730-731, emphasis supplied.)
Both before and after Berg, other appellate courts have published opinions agreeing with its basic principles. For example, just a month before Berg was published, a panel of the Fourth District was faced with a somewhat similar issue in Elite, supra, 119 Cal.App.4th 263, 268-270. There, the defendants served a rather unusual section 998 offer on the plaintiff in its action seeking injunctive relief for allegedly unfair competition. In it, and among other things, the defendants offered to pay the plaintiff “reasonable attorneys’ fees,” an offer the trial court ruled was not too uncertain to render the section 998 offer ineffective.
The appellate court affirmed, rejecting the plaintiff’s argument that that offer was “too uncertain to be enforced because the provision did not specify the amount of fees to be paid, but rather left that for future determination or agreement.” (Elite, supra, 119 Cal.App.4th at pp. 268-269.) In so holding, it applied “general contract principles” (id. at p. 268), ruling: “[N]either law nor equity requires that every term and condition of an agreement be set forth in the contract. . . . [¶] . . . [T]he fact that the offer does not specify a particular amount of attorney fees does not leave the matter open for the parties’ future agreement, nor does it create an uncertainty that renders it unenforceable.” (Id. at p. 269.)
Last year, two of our sister courts cited Berg in the course of ruling that the section 998 offers made in the respective trial courts were not too ambiguous or uncertain. In Fassberg Construction Co. v. Housing Authority of Los Angeles (2007) 152 Cal.App.4th 720, the appellate court reversed a trial court holding denying expert witness fees to the cross-complaining––and ultimately victorious––Housing Authority, which had submitted a rather complex section 998 settlement offer to the construction company plaintiff. In rejecting the trial court’s conclusion that the release proposed in the section 998 offer of the Housing Authority was “overbroad” (id. at p. 765), the court stated: “An offer to compromise under Code of Civil Procedure section 998 must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer. [Citing Berg and other cases.] Any nonmonetary terms or conditions must be sufficiently certain and capable of valuation to allow the court to determine whether the judgment is more favorable than the offer. [Citations.] Ascertaining the terms of an offer, including the determination whether the offer is sufficiently specific and certain for purposes of section 998, is a question involving the interpretation of a writing. We independently interpret a writing if the interpretation does not turn on the credibility of extrinsic evidence. [Citing both Berg and Elite, among other cases.]” (Fassberg, supra, 152 Cal.App.4th at pp. 764-765; see also, Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134-135.)
In addition to the express holding of Berg that “[a]n otherwise clear section 998 offer is not rendered invalid simply because it does not track precisely the language of the statute” (Berg, supra, 120 Cal.App.4th at p. 728), and the cited authorities agreeing with this principle, there are at least three other reasons why we reject appellant’s “invalid offer” argument. Briefly stated, they are that: (1) courts should interpret and apply section 998 to advance that statute’s “clear purpose . . . to encourage the settlement of lawsuits prior to trial.” (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672; see also, Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262 (Jones), and Ray v. Goodman (2006) 142 Cal.App.4th 83, 91); (2) courts should embrace the interpretation of a statute which “best effectuates the legislative purpose” inasmuch as that purpose “‘will not be sacrificed to a literal construction of any part of the statute.’” (Santa Ana Unified School Dist. v. Orange Cty. Development Agency (2001) 90 Cal.App.4th 404, 410); and (3) even as and when mistakes are made in drafting section 998 offers, such are and should be “excusable.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 259.)
B. Finding the Section 998 Offer Reasonable was not an Abuse of Discretion.
As noted earlier, appellant’s second contention is that respondent’s $4,000 section 998 offer was unreasonable, and that the trial court abused its discretion in holding otherwise. The parties correctly note that abuse of discretion is the appropriate standard of review regarding this holding of the trial court. (See, e.g., Jones, supra, 63 Cal.App.4th at p. 1262 and cases cited therein.)
Our opinion a decade ago in Jones is almost totally dispositive of this contention, indeed almost down to the dollar amounts ultimately involved. There, a hospital and one of its anesthesiologists was sued by a former patient and her husband for negligence and alleged battery in connection with a medical procedure undertaken there. Before trial, the anesthesiologist filed and served a section 998 offer offering to have judgment taken against him for a waiver of costs. The offer was rejected by the plaintiffs, and the case went to trial against the doctor; the jury returned a verdict in his favor. He thereupon filed a memorandum of costs, including $5,440 in expert witness fees, which the trial court allowed after appellants filed a motion to tax those costs. Appellants appealed solely regarding those expert witness fees, and we affirmed. (Jones, supra, 63 Cal.App.4th 1258.)
In so doing, we first rejected their contention that the pre-trial waiver of costs offer “was not a reasonable offer, but rather a token, tactical one made only to preserve the right to later claim these disputed costs.” (Jones, supra, 63 Cal.App.4th at p. 1262.)
In a unanimous opinion authored by our-then colleague, Justice Ruvolo, we held: “[C]ase law interpreting the good faith requirement allows for great flexibility in customizing pretrial settlement offers. Expounding on the latitude allowed parties in formulating settlement offers, the court in Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 906, noted: ‘[T]he statute does not indicate any intent to limit the terms of the compromise settlement or the type of final disposition.’ Another court concluded that even a ‘modest settlement offer’ may be in good faith if it is believed the defendant has a significant likelihood of prevailing at trial. [Citation.] These two cases clarify that section 998 does not confine an offeror to strict content-based rules, but rather imposes only the flexible parameters of the good faith requirement on the formulation of a section 998 offer. [¶] We find no abuse here in the trial court’s making a discretionary award of expert witness fees. Facially, respondent’s offer carried a significant value to appellants because, if accepted, it would have eliminated appellants’ exposure to the very costs which are the subject of this appeal, a sum appellants can hardly claim now to be de minims. We are not obliged to ignore the reality that respondent prevailed at trial. In fact, the trial result itself constitutes prima facie evidence that the offer was reasonable, and the burden of proving an abuse of discretion is on appellants, as offerees, to prove otherwise. [Citation.]” (Jones, supra, 63 Cal.App.4th at p. 1264; see also, Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 470-473; Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025-1027; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134-136.)
Under this principle, and based on the record provided us (jointly) by the parties, we have no difficulty in concluding that there was no abuse of discretion in the trial court’s finding that respondent’s $4,000 section 998 offer was reasonable on the facts of this case. Those facts specifically did not include any issue related to liability; such was clearly established from the beginning by the effective admission of respondent, the driver of the Lexus, that he had indeed backed into the Lincoln Town Car occupied by appellant. Rather, the key pretrial and trial issue was whether that accident was the medical cause of appellant’s cervical injury.
This much is clearly established––and never rebutted––by a declaration in the record before us by respondent’s trial counsel. In it, he states: “The 998 offer was not made until after substantial discovery had been conducted, the reports and photographs had all been exchanged, and both sides had plenty of time to retain experts in accident reconstruction, radiology, and surgery to assess the issues at hand. Indeed, plaintiff did retain such experts. Moreover, I explained on numerous occasions to plaintiff’s counsel the reasons why plaintiff’s condition was not caused by this accident. The basic facts have always been clear: This minor tap to plaintiff’s front bumper did not generate enough force to cause injury to any plaintiff, eggshell or otherwise. The impact was not forceful enough even to move plaintiff’s car.”
The record provided us contains no contrary factual statements from appellant or his counsel. At least per that record, appellant’s counsel filed no counter-declaration in the trial court but, rather, contented himself with generalized negative remarks (e.g., respondent’s section 998 offer was “paltry”) in his memoranda of points and authorities supporting the motion to tax costs. The same verbiage is repeated in appellant’s briefs to us, e.g., appellant’s offer was “paltry,” “miniscule,” and an example of “extortionate tactics.”
Bearing in mind that, both before and at trial, the issue was never whether respondent was negligent orwhether appellant underwent painful and expensive medical procedures but, rather, whether there was any causal connectionbetween those two circumstances. Thus, we have no hesitation in concluding that the trial court did not abuse its discretion in finding respondent’s pre-trial $4,000 settlement offer reasonable.
C. There was no Abuse of Discretion Regarding the Individual Costs Challenged.
Appellant’s third and final point is that the trial court abused its discretion in not taxing certain specific items in respondent’s cost bill. There are, however, many problems with our addressing these various items, e.g.: (1) the items challenged, and the amounts involved in each, change both between appellant’s two briefs to this court and, incredibly, within one of those briefs; (2) the record before us is totally inadequate to permit us to separately evaluate whether the trial court abused its discretion in allowing any of these costs; and (3) the largest of the challenged items––the expert witness fees of two experts retained by respondent pretrial, but who did not testify––was never challenged in the trial court.
Regarding the first point: in the final few pages of his opening brief, appellant sets forth six separate items of, in his view, inappropriate costs allowed by the trial court. These total, at least according to our calculations, $59,590.49. (Ibid.) But then, in the final paragraph of the “Conclusion” of that brief, appellant lists only three such items, totaling $5,321.59. Even more perplexingly, in his reply brief two of the six items challenged in his opening brief are never mentioned, reducing the challenged number to four, which total $58,140.49.
We find no mention therein of the $2,727.59 in “exhibit costs” challenged at page 23 of appellant’s opening brief or the $1,450 “exhibit rush fees” challenged at pages 24 and 25 thereof. But we are gratified to note that, adding these two items to the total amount challenged in appellant’s reply brief, gives the total of the items challenged in his opening brief. (Frankly, we were worried!)
But there is more. Bearing in mind, again, that our standard of review is abuse of discretion, and that it is appellant’s burden to provide an appellate court a record demonstrating such an abuse (see, e.g., Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448; 1 Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 4:42), the record provided us allows us no opportunity to consider that issue. For example, by far the largest cost item challenged by appellant––no matter which section of which brief one considers––is the $44,850 in expert witness fees paid by respondent’s counsel to two medical expert witnesses who were originally retained by them but who never testified at trial. This made them, per appellant, “superfluous.” But there is nothing in the record before us which establishes that appellant objected in the trial court to the expert witness fees paid to these two medical experts below; that point is thus waived.
In that court, appellant specifically objected to the costs of the depositions of these two experts, but not to their substantially greater witness fees.
Additionally––if any further support is necessary––section 998 makes it clear that costs recoverable thereunder include “a reasonable sum to cover costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” (§ 998, subd. (c)(1).) Here, the trial court had before it a detailed cost bill which included these fees, a declaration from respondent’s counsel summarizing why the five experts he had originally retained were necessary both for trial preparation and trial purposes, and an opposition of appellant’s motion to tax costs which further explained that position.
Under all these circumstances, the record clearly does not demonstrate any abuse of discretion by the trial court regarding the various individual cost items challenged––in varying sums––on appeal by appellant.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Lambden, J., Richman, J.