Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-08-471056
Margulies, J.
Plaintiff Thomas Lum filed suit against defendants Marco Gonzalez, William Orellana, and Jose Ortiz, seeking damages for personal injuries he sustained in a motor vehicle accident. The accident occurred when Gonzalez, who was driving a tow truck owned by Orellana and was acting in the course and scope of his employment with Ortiz, made an unsafe lane change, causing plaintiff to lose control of his vehicle. The jury awarded plaintiff $580,955 in damages. Prior to trial, both sides served (on the same day) offers to compromise under Code of Civil Procedure section 998. Plaintiff offered to settle, for $200,000, his claims against Gonzalez only. Defendants jointly offered to settle for $400,000. Neither offer was accepted.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Because the jury’s award exceeded the amount of plaintiff’s offer to Gonzalez, the trial court subsequently awarded plaintiff expert fees and costs under section 998 and prejudgment interest under Civil Code section 3291, against Gonzalez only. Defendants appeal the award of expert fees and costs and prejudgment interest, contending (1) plaintiff’s section 998 offer was invalid because it was not made in good faith and was ambiguous and incapable of valuation; (2) an amended judgment entered by the trial court reducing Orellana’s liability to $15,000 pursuant to Vehicle Code section 17151 is “moot” and was improperly entered; (3) Gonzalez obtained a judgment more favorable than plaintiff’s section 998 offer, because only one-third of the total judgment should be apportioned to Gonzalez, and that amount was less than the $200,000 offered by plaintiff; and (4) if plaintiff is entitled to recover expert fees and costs and prejudgment interest, he should only recover one-third of the amounts claimed, because his section 998 offer was directed only to one of the three defendants. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed suit against Gonzalez, Orellana, and Ortiz, alleging he sustained injuries in the accident. Plaintiff alleged Gonzalez caused the accident by making a negligent lane change while driving a tow truck owned by either Orellana or Ortiz. Plaintiff also included allegations of agency/employment and negligent hiring against all defendants.
Defendants, represented by the same counsel, filed a joint answer including a general denial of plaintiff’s allegations and asserting affirmative defenses.
Both sides served section 998 offers by personal service on June 5, 2009, the last permissible day (10 days before the June 15, 2009 trial date). As noted above, plaintiff offered to settle, for $200,000, his claims against Gonzalez only. Plaintiff’s offer stated, in relevant part: “[P]laintiff THOMAS LUM hereby offers to allow judgment to be taken in accordance with the following terms: In favor of plaintiff THOMAS LUM and against defendant MARCO A. GONZALEZ upon payment to plaintiff of the sum Two Hundred Thousand and no/100 ($200,000.00) Dollars, which sum is inclusive of statutory costs awarded to the prevailing party pursuant to Code of Civil Procedure Section 1032.”
In a posttrial declaration filed in the trial court, defendants’ counsel stated she received plaintiff’s section 998 offer approximately two hours after she caused defendants’ offer to be delivered to plaintiff’s counsel’s office; defendants reiterate this claim in their appeal brief. However, the proofs of service attached to the section 998 offers do not disclose the precise times they were served. The record thus does not establish whether one offer was served in response to the other, or whether the offers crossed during delivery.
Defendants jointly offered to settle plaintiff’s claims against them by paying $400,000, in exchange for a dismissal with prejudice of plaintiff’s complaint, and a release by plaintiff of all claims against all three defendants arising out of the accident.
In a letter dated June 14, 2009, defendants’ counsel stated Gonzalez would accept plaintiff’s section 998 offer on the condition plaintiff agreed “the remaining two defendants, Ortiz and Orellana, are entitled to a credit under [section] 877 for the settlement amount ($200,000.00) on any settlement they reach with [plaintiff] or on any verdict against them in this case.” Counsel also discussed this issue orally in court on June 15, 2009. Plaintiff’s counsel informed defendants’ counsel he did not agree to this condition. Gonzalez therefore did not accept plaintiff’s section 998 offer.
Prior to the start of trial, defendants admitted liability. Specifically, defendants admitted Gonzalez was 100 percent at fault for the accident and, at the time of the accident, was driving a tow truck owned by Orellana and was in the course and scope of his employment with Ortiz. Defendants disputed the causation, nature, and extent of plaintiff’s claimed injuries.
The jury returned a verdict awarding plaintiff a total of $580,955 in damages. On June 26, 2009, the trial court entered judgment in that amount in favor of plaintiff and “against defendants William A. Orellana, Jose A. Ortiz and Marco A. Gonzalez.” The judgment also stated plaintiff was “entitled to recover from [defendants] [his] costs of suit and pre-judgment interest as determined by the Court following any [section] 998 motion hearings.”
Plaintiff subsequently filed a memorandum of costs seeking a total of $38,058.34. This total included expert fees totaling $16,267.52, pursuant to section 998, and prejudgment interest totaling $3,501.65, pursuant to Civil Code section 3291. Defendants filed a motion to tax costs. Defendants argued plaintiff was not entitled to recover expert fees and prejudgment interest because (1) the judgment against Gonzalez did not exceed plaintiff’s section 998 offer; (2) plaintiff’s section 998 offer was invalid because it was not made in good faith and was uncertain; and (3) if the offer was valid, plaintiff should only recover one-third of his expert fees and prejudgment interest, because the offer was directed only to one of the three defendants.
Plaintiff opposed defendants’ motion, but agreed to withdraw or reduce certain cost items, including portions of his claimed expert fees.
On August 27, 2009, the trial court denied defendants’ motion to tax costs. The court ordered the judgment against defendants be amended to add $17,343.87 in costs to plaintiff as a prevailing party under section 1032 and postjudgment interest under Civil Code section 3287. The court also ordered the judgment be amended to add $15,921.17 in expert fees and prejudgment interest to be recovered from Gonzalez pursuant to section 998 and Civil Code section 3291.
On October 23, 2009, defendants filed a timely notice of appeal of the trial court’s order denying their motion to tax costs.
In a footnote in his brief, plaintiff argues Ortiz and Orellana lack standing in this appeal, because they are not aggrieved by the award of expert fees and prejudgment interest against Gonzalez. However, plaintiff has not filed a motion to dismiss the appeal as to Ortiz and Orellana, and only asks this court to “disregard [Ortiz’s and Orellana’s] contentions.” (See Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) But this court must address the arguments in defendants’ joint brief, because Gonzalez has standing to present them. And, even assuming the appeal should be dismissed as to Ortiz and Orellana, the dismissal would not change the result of this appeal.
On November 4, 2009, the trial court entered an amended judgment. The amended judgment stated judgment was entered in favor of plaintiff and against defendants in the amount of the verdict ($580,955), together with costs of $16,300.16, but stated Orellana’s liability as owner of the tow truck was statutorily limited to $15,000 under Vehicle Code section 17151. The amended judgment also stated plaintiff was entitled to recover $15,921.17 from Gonzalez pursuant to section 998 and Civil Code section 3291.
II. DISCUSSION
A. Section 998 and Civil Code Section 3291
Under section 998, until 10 days before trial, a party in a case “may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b).) Under section 998, subdivision (d), “[i]f an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award..., the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs.” Civil Code section 3291, which applies in personal injury cases, provides: “If the plaintiff makes an offer pursuant to [section 998] which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to [section 998] which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.” The purpose of these provisions is to encourage settlement by penalizing a party who fails to accept a reasonable offer from another party. (See Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 583 (Taing) [section 998]; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698–699 (Elrod) [same].)
B. Validity of Plaintiff’s Settlement Offer
Defendants contend plaintiff’s section 998 offer of $200,000 to Gonzalez was made in bad faith with the intent to “game the system, ” and was uncertain and incapable of valuation. According to defendants, because plaintiff’s counsel declined to agree the remaining defendants would be entitled to a $200,000 credit against any settlement or judgment if Gonzalez accepted the offer, the $200,000 offer became incapable of valuation. Defendants argue they were “stuck between a rock and a hard place.” If they rejected plaintiff’s “obviously low” offer, they would be forced to pay plaintiff’s expert fees and prejudgment interest (if plaintiff’s offer was valid). If they accepted the offer, two outcomes were possible: (1) the two nonsettling defendants would face the risk they would be held to the $400,000 joint offer; or (2) defendants could withdraw the $400,000 offer, thus ensuring plaintiff would face no risk of paying defendants’ costs or expert fees, “while effectively funding their own prosecution.”
Although the statute does not expressly require a settlement offer be made in good faith, “[m]any courts have concluded that a good faith requirement is implicit” in section 998. (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 767 (Fassberg); see Elrod, supra, 195 Cal.App.3d at pp. 698–700.) A section 998 offer must be “ ‘realistically reasonable under the circumstances of the particular case’ and must carry with it some reasonable prospect of acceptance.” (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1024 (Arno).) The reasonableness of an offer generally is “measured by the potential recovery the defendant will have to pay plaintiff premised upon” the information available to the parties as of the date the offer was served. (Id. at p. 1025; accord, Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 129–130.)
In Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, the Supreme Court “[a]ssum[ed] without deciding” section 998 contained a good faith requirement. (Id. at p. 531.)
Whether a settlement offer was reasonable and made in good faith is a question within the sound discretion of the trial court. (Arno, supra, 130 Cal.App.4th at p. 1025; Elrod, supra, 195 Cal.App.3d at p. 700.) When the offering party obtains a judgment more favorable than his or her section 998 offer, the offer is presumed to have been reasonable, and the burden is on the offeree to demonstrate the trial court abused its discretion in finding it valid. (Arno, at p. 1025; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264 (Jones).)
In addition to being reasonable, “[a]n offer to compromise under [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.” (Fassberg, supra, 152 Cal.App.4th at p. 764.) If an offer is not sufficiently certain to be capable of valuation, it may not be possible to determine whether the recovery at trial is more or less favorable. (Chen v. Interinsurance Exchange of the Automobile Club (2008) 164 Cal.App.4th 117, 121 (Chen).) “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.” (Fassberg, at p. 765.)
The trial court did not abuse its discretion in finding plaintiff’s offer was reasonable and made in good faith. And, based on our independent review, the offer was sufficiently certain to be capable of valuation.
As to good faith and reasonableness, defendants have not shown the amount of plaintiff’s offer to Gonzalez ($200,000) was unreasonable. The jury’s $580,955 award (for which Gonzalez was jointly and severally liable) was substantially more favorable to plaintiff than plaintiff’s offer, so the amount of the offer is presumed reasonable. (See Arno, supra, 130 Cal.App.4th at p. 1025; Jones, supra, 63 Cal.App.4th at p. 1264.) Indeed, defendants do not argue the offer was unreasonably high; instead, they characterize the offer as “obviously low, ” and they suggest this demonstrates plaintiff did not intend or expect the offer to be accepted. Even assuming a plaintiff’s section 998 offer could be found invalid because it was unreasonably low, defendants have not shown plaintiff’s offer was outside the “ ‘range of reasonably possible results, ’ ” in light of the information available to the parties at the time the offer was made. (See Arno, at p. 1025.) As plaintiff notes, defendants’ counsel argued at trial a reasonable total award of damages to plaintiff from all defendants would be $212,598. An offer to settle with Gonzalez for $200,000 was not an implausibly low figure suggesting plaintiff did not seek in good faith to settle his claims against Gonzalez.
Defendants’ counsel suggested the jury award (1) $53,932 for past medical expenses; (2) $22,835 for past lost earnings; (3) $16,643 for future medical expenses; (4) $19,188 for future lost earnings; (5) $50,000 for past noneconomic losses; and (6) $50,000 for future noneconomic losses, which total $212,598.
Defendants argue the inquiry into good faith and reasonableness should not be limited to the amount of the offer and should encompass the parties’ conduct, including efforts to resolve any ambiguities in the offer. Here, however, the text of plaintiff’s offer itself was not ambiguous. As noted above, the offer stated plaintiff would allow judgment to be entered in his favor and against Gonzalez in the amount of $200,000, inclusive of statutory prevailing-party costs. The offer included no other terms or conditions that would create difficulties in placing a total dollar value on the offer. (See Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 800–803 [confidentiality clause].) Moreover, since the offer was directed only to Gonzalez, it did not create uncertainty as to how the settlement amount should be allocated. (See, e.g., Taing, supra, 9 Cal.App.4th at pp. 584–586 [unapportioned offer from plaintiff to multiple defendants].) Finally, the $200,000 offer to Gonzalez was sufficiently certain in amount to determine whether the recovery at trial ($580,955, plus costs) was more or less favorable to Gonzalez. (See Chen, supra, 164 Cal.App.4th at p. 121.)
Defendants suggest plaintiff’s offer was ambiguous because it was “intentionally silent” as to how defendants’ joint section 998 offer to plaintiff would be affected by Gonzalez’s acceptance of plaintiff’s offer. However, as noted above, the record does not establish the sequence in which the offers were served, and thus does not establish plaintiffs’ counsel had defendants’ offer when he drafted and served his own.
Defendants contend plaintiff should have provided them with “an acknowledgment of the law” as to Ortiz’s and Orellana’s rights under section 877 to a credit for the $200,000 settlement against any future judgment or settlement, including the defendants’ joint section 998 offer to settle for $400,000. However, to the extent there was uncertainty on this point, plaintiff was not obligated to make promises or assurances to Ortiz and Orellana about how section 877 would apply in the circumstances of this case. If Ortiz and Orellana were entitled under the law to a full $200,000 credit (a question we need not address), plaintiff’s assurance was unnecessary to secure their rights; if Ortiz and Orellana were not legally entitled to a full credit, plaintiff was not obligated to grant them one as part of his settlement offer to Gonzalez. Plaintiff’s refusal to confirm Ortiz’s and Orellana’s view of their credit rights did not render his settlement offer to Gonzalez a bad faith, unreasonable, or ambiguous one.
Under section 877, subdivision (a), a good faith settlement with one or more of a number of alleged tortfeasors “shall reduce the claims against the [other alleged tortfeasors] in the amount” of the settlement.
The facts of this case are similar to those in Arno, supra, 130 Cal.App.4th 1019, 1024. In Arno, the plaintiff (Arno) was injured in a helicopter crash, and brought suit against the pilot, the pilot’s employer, and the owner of the helicopter. (Id. at p. 1022.) Prior to trial, Arno served on the pilot a section 998 offer to settle for $999,999.99. (Ibid.) Upon expiration of the offer, Arno served an identical offer on the pilot’s employer, which the employer also did not accept. (Ibid.) The jury awarded Arno more than $13 million in damages. (Ibid.) The trial court subsequently awarded expert witness fees and prejudgment interest to Arno under section 998 and Civil Code section 3291. (Arno, at p. 1022.) On appeal, the pilot contended Arno’s section 998 offer to her was not made in good faith. (Arno, at pp. 1023–1024.) The pilot argued since one insurance company covered all defendants and controlled the defense, the insurer had nothing to gain by the pilot’s accepting the offer; after a settlement with, and dismissal of, the pilot, Arno would still be free to pursue a judgment against the remaining defendants for the full amount of Arno’s damages less a set off of some or all of the settlement amount. (Ibid.) The pilot argued Arno therefore knew his offer had no reasonable prospect of acceptance. (Ibid.)
The appellate court ruled the trial court did not abuse its discretion in awarding expert fees and prejudgment interest. (Arno, supra, 130 Cal.App.4th at pp. 1025–1027.) The court noted section 998 “does not require a plaintiff to make a global settlement offer to all defendants in an action, or to make an offer that resolves all aspects of a case.” (Arno, at p. 1026.) The interests of the defendants’ insurer and the pilot’s codefendants did not restrict the trial court’s discretion to find Arno’s offer to the pilot was in good faith and reasonable. (Id. at pp. 1025, 1027.) The appellate court stated the purpose of section 998 is “to encourage settlements ‘by imposing a strong financial disincentive on a party that fails to obtain a more favorable result at trial.’ [Citation.] That purpose would be frustrated if a party could elude the application of the statute by being able to restrict a trial court’s discretion with considerations facing that party’s insurer or other codefendants. Notwithstanding any strategies that could be attributed to Arno, the trial court did not abuse its discretion in applying section 998 sanctions in this case.” (Arno, at p. 1027.)
Similarly, here, plaintiff made a section 998 offer only to the employee-driver, Gonzalez, and did not include a release of the employer (Ortiz) or the vehicle owner (Orellana). Gonzalez should not be able to evade the application of section 998 by restricting the trial court’s discretion with considerations facing Ortiz and Orellana, such as any uncertainty faced by those defendants as to whether they would be entitled to a credit for the amount of Gonzalez’s settlement against any subsequent settlement or judgment.
Defendants contend their competing section 998 offer distinguishes this case from Arno and establishes plaintiff’s offer was not made in good faith. We disagree. Under the approach advocated by defendants, the defendants in a multiple-defendant case could always make a competing joint section 998 offer to invalidate a plaintiff’s section 998 offer to one defendant, and thus defeat the plaintiff’s subsequent claims for expert fees and prejudgment interest. The discretion of trial courts in applying section 998 should not be restricted in this manner. (See Arno, supra, 130 Cal.App.4th at p. 1027.)
C. The Amended Judgment
Defendants claim the amended judgment entered by the trial court on November 4, 2009, reducing Orellana’s liability as the owner of the tow truck to $15,000 pursuant to Vehicle Code section 17151, is “moot, ” and therefore this court should not consider it in addressing the issues raised in this appeal. (As noted above, the original judgment, entered on June 26, 2009, had imposed liability for the full amount of plaintiff’s damages against all three defendants.) Defendants argue the trial court made a material, rather than clerical, change to the judgment (which defendants had already partially satisfied by paying $580,955, plus an amount representing statutory costs and postjudgment interest), and the trial court violated Ortiz’s and Gonzalez’s due process rights by making the change without an adjudication of the amount of Orellana’s liability.
Vehicle Code section 17150 imposes vicarious liability on a vehicle owner for the driver’s negligence; however, under Vehicle Code section 17151, if the driver is not an employee or agent of the owner, the owner’s vicarious liability is capped at $15,000 for an injury to one person in one accident. (See Veh. Code, §§ 17150, 17151, subd. (a).)
The trial court’s amendment of the judgment to reflect the statutory limitation on Orellana’s liability was proper. A trial court has the power to correct a clerical error in a judgment. (Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 209.) In Pettigrew, judgment was entered in favor of an injured passenger and against the vehicle owner, Grand Rent-A-Car, for $150,000. (Id. at p. 207.) The trial court subsequently modified the judgment, reducing the award to $15,000 pursuant to Vehicle Code section 17151. (Pettigrew, at p. 207.) The injured passenger appealed. (Ibid.) The appellate court affirmed, ruling the error was clerical, because the statutory limit on Grand Rent-A-Car’s liability had been overlooked through inadvertence of counsel for Grand Rent-A-Car and the trial court. (Id. at pp. 211–212.) Moreover, the injured passenger did not claim the evidence established an employment or agency relationship between the driver of the vehicle and Grand Rent-A-Car that would except the case from the statutory limitation. (Ibid.)
Similarly, here, the parties apparently did not bring to the trial court’s attention, and the original judgment did not reflect, the statutory limit on Orellana’s liability. Defendants do not argue any employment or agency relationship existed between Orellana and Gonzalez establishing an exception to the liability limitation. Indeed, defendants admitted (and the jury was instructed) Ortiz, not Orellana, was Gonzalez’s employer. Moreover, defendants cite no authority in support of their suggestion the original judgment could no longer be amended once it had been partially satisfied. A clerical error in a judgment may be corrected at any time. (See Pettigrew, supra, 154 Cal.App.3d at p. 209.) The original judgment’s omission of the statutory liability limit was a clerical error, and the trial court had authority to correct it. (See Pettigrew, at pp. 211–212.)
Defendants’ reliance on Nelson v. Adams USA, Inc. (2000) 529 U.S. 460, is misplaced. In that case, a federal district court amended a judgment to impose liability on a person who had not previously been a party to the suit. (Id. at pp. 464–465.) The United States Supreme Court ruled this violated due process. (Id. at pp. 463, 471–472.) Here, in contrast, the trial court merely amended the judgment to reflect a statutory limitation on the liability of Orellana, one of three existing defendants; the other two defendants, Gonzalez and Ortiz, remained liable for the entire amount of the judgment.
D. The Judgment Was Less Favorable to Gonzalez than Plaintiff’s Offer
Defendants contend plaintiff is not entitled to expert fees or prejudgment interest because his section 998 offer of $200,000 to Gonzalez, “one of three Defendants with a unity of interest, ” did not exceed one-third of the judgment. Defendants argue one verdict was entered against all three of them; because defendants admitted liability, the jury was not asked to, and did not, allocate damages among the defendants. Defendants also assert no allocation could have occurred, because Ortiz and Orellana were liable on theories of vicarious liability. Finally, defendants claim the only logical way to determine what portion of the judgment is attributable to Gonzalez is to divide the judgment by three, resulting in a judgment of $199,748.05 against Gonzalez.
In calculating the total amount of the judgment for purposes of this argument, defendants note plaintiff, in his posttrial memorandum of costs, claimed a total of $38,058.34, of which $16,267.52 was for expert fees and $3,501.65 was for prejudgment interest, leaving a claimed total of $18,289.17 in statutory prevailing-party costs and postjudgment interest. If the damages award of $580,955 is added to the $18,289.17 in claimed statutory costs, the total is $599,244.17. One-third of that total is $199,748.05.
Defendants cite no authority in support of their claim the judgment should be divided by three to determine the amount of the judgment against Gonzalez. Indeed, defendants’ argument appears inconsistent with their own position that no allocation of damages among the defendants was possible because Ortiz and Orellana faced vicarious liability. In any event, defendants admitted Gonzalez was 100 percent at fault for the accident, so he was liable for the entire amount of the judgment, i.e., damages of $580,955, plus statutory costs. This result was clearly less favorable to Gonzalez than plaintiff’s section 998 offer to settle for $200,000.
Ortiz, as Gonzalez’s employer, was also jointly and severally liable for the entire judgment. (See, e.g., Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1000–1001, disapproved on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.)
Finally, even if it were appropriate to apportion the judgment among the defendants, the amount apportioned to Gonzalez would not be one-third of the total. Orellana’s liability as the vehicle owner was statutorily limited to $15,000. (Veh. Code, § 17151, subd. (a).) If this amount were deducted from the total calculated by defendants ($599,244.17), the remaining amount would be $584,244.17; if that amount were divided equally between Gonzalez and Ortiz, each would be liable for $292,122.08, a result less favorable to Gonzalez than plaintiff’s section 998 offer.
E. Apportionment of Expert Fees and Prejudgment Interest
Finally, defendants argue even if plaintiff is entitled to recover expert fees and prejudgment interest, he should recover only one-third of those amounts from Gonzalez, because plaintiff’s section 998 offer was “directed to one of three jointly/severally liable Defendants.” Defendants, however, cite no authority requiring the reduction of the award of expert fees and prejudgment interest against Gonzalez to one-third. We hold the trial court did not abuse its discretion in declining to do so.
In the context of statutory prevailing-party costs under section 1032, courts have held even when a plaintiff prevails against fewer than all defendants, the plaintiff is entitled to recover costs from the losing defendants. (See Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 238, 256–257; Stiles v. Estate of Ryan (1985) 173 Cal.App.3d 1057, 1065–1066.) In Oakes, cited by plaintiff, the court also declined to apportion or reduce the awarded costs to reflect plaintiff’s lack of success against the remaining defendants. (Id. at pp. 256–257.) Specifically, the Oakes court rejected the losing defendants’ argument the jury fees portion of the costs “should have been apportioned by deducting the amount attributable to the trial time consumed by plaintiffs’ unsuccessful attempt to establish claims against the other defendants who prevailed against plaintiffs.” (Id. at p. 238)
In other cases, however, courts have held apportionment of prevailing-party costs is within the trial court’s discretion and is appropriate in some circumstances. In Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265 (Heppler), cited by defendants, a construction defect class action, the plaintiffs lost at trial against three of four subcontractors, each of which had performed a different type of work on the development in question. (Id. at pp. 1271–1272, 1273–1274.) The appellate court held the trial court properly awarded costs (including contractual attorney fees) to plaintiffs against the losing subcontractor, but abused its discretion by failing to apportion the attorney fees and certain costs to determine which portion of those fees and costs should be allocated against the losing defendant. (Id. at pp. 1296, 1298.) The appellate court reached this conclusion because the issues involving the losing subcontractor’s case were distinct from the issues relating to the prevailing subcontractors, which consumed multiple days of trial time. (Heppler, at p. 1297.)
Defendants also cite Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, disapproved on other grounds in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1330, 1338. Wakefield is inapposite. In Wakefield, the court noted when a prevailing party incurs costs jointly with one or more parties who are not prevailing parties, the court must apportion costs between the parties. (Id. at p. 986.) The Wakefield court did not address the apportionment of costs when a single plaintiff is entitled to recover costs from some defendants but not others.
As to section 998 sanctions, when a defendant fails to obtain a judgment more favorable than a plaintiff’s settlement offer, the trial court has discretion as to whether to award expert fees. (§ 998, subd. (d).) Accordingly, a plaintiff who serves a valid and successful section 998 offer is not entitled in all circumstances to receive an award of all expert fees incurred, and, as plaintiff concedes, reduction of expert fees may be appropriate in some cases, such as those involving distinct theories of liability against different defendants. (Cf. Heppler, supra, 73 Cal.App.4th at pp. 1297–1298.)
Here, however, all defendants admitted liability, and the trial related solely to causation and damages, issues applying to all defendants. Defendants do not argue any expert fees were incurred in connection with issues relating solely to defendants Ortiz and/or Orellana, such that Gonzalez should not be responsible for them. Accordingly, although the trial court had discretion as to whether, and in what amount, to award expert fees (see § 998, subd. (d)), defendants have not shown the trial court abused its discretion by declining defendants’ request to reduce the award mechanically to one-third of the fees incurred.
III. DISPOSITION
The trial court’s August 27, 2009 order denying defendants’ motion to tax costs is affirmed. Plaintiff shall recover his costs on appeal.
We concur: Marchiano, P.J., Banke, J.