Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. BC371618, Ruth Ann Kwan, Judge.
Law Offices of Armen M. Tashjian and Armen M. Tashjian for Plaintiff and Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
After defendant, Sarika Chawla, stipulated to liability in a personal injury action, a jury awarded plaintiff, Liana Mkrtchyan, $5,640 in damages. Plaintiff appeals from the judgment entered by the court on the grounds the trial court abused its discretion by: arbitrarily limiting voir dire to 30 minutes for each side; by sua sponte reducing the trial time estimate of 7 to 9 days to only 4 days; and denying plaintiff’s motion to strike costs awarded which defendant sought pursuant to Code of Civil Procedure section 998, subdivision (c)(1). We affirm the judgment and the order denying plaintiff’s motion to strike defendant’s costs.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. BACKGROUND
Plaintiff did not provide the pleadings in this action. Plaintiff provided a reporter’s transcript of the voir dire and the section 998 hearings. But no reporter’s transcript of jury trial has been provided. On July 17, 2008, the parties conducted voir dire. A defendant and cross-complainant, John Day, was dismissed from the action. Mr. Day’s cross-complaint against Ms. Chawla was also dismissed. Defendant admitted liability. The parties agreed that the only issue for trial was damages.
Plaintiff’s counsel, Armen Tashjian, advised the trial court that he wanted to call about four or five doctors and he had two experts. The trial court then advised plaintiff that any foundation from the witnesses should be short. At which point, Mr. Tashjian stated that he did not think that he would be able to complete the trial by the following Tuesday. The trial court then advised counsel they had four days to complete the trial. Mr. Tashjian argued that the trial had been reduced to four from seven days. To which the trial court replied, “This is a fender/bender case with just damage issue.” Mr. Tashjian then argued that the case was not a “fender/bender” but was a “rear-ender” with significant medical issues. Mr. Tashjian further stated the trial court was putting expediency over giving plaintiff a full and fair trial. Mr. Tashjian argued: “Your Honor, if I may address the court, at this point, I honestly feel we will not be able to meet our trial estimate by cutting down... to four days and 30 minutes per jury selection.”
The following colloquy then ensued: “The Court: I never gave you seven days to begin with. Okay. I have always said this is about five days that I would give you. Now that we have one major defendant, which has always contested liability out of the case, this is a four day case, counsel. Thank you. [¶] Mr. Tashjian: Well, your Honor, I understand that, but, I’m simply trying to make my record here, if I may. Now if your Honor is going to cut us to thirty minutes per jury, then I respectfully request an opportunity to file a brief on this issue because I’m not accepting the court’s ruling on thirty minutes.” The trial court subsequently stated: “I’m going to tell you that if you use your time wisely, then I certainly would consider a request for additional time. But if you waste your time during voir dire, no I wouldn’t give you additional time. That’s how I usually operate.” Mr. Tashjian then replied, “Fair enough, your Honor.” But the trial court advised Mr. Tashjian: “And if you spend your time trying to indoctrinate jurors, trying to ask them to prejudge evidence and trying to become friends with them, for example, which sometimes attorneys waste their time doing that, then you don’t get additional time. If it appears that you are truly asking questions that goes to the fair selection of this jury, and then it seems like everyone had been involved in a traffic accident and you need to get some information out of them, then... it’s fair that you need additional time, then I would give you additional time. But the general guideline is 30 minutes per side.” When Mr. Tashjian asked for a written general guideline, the trial court responded that it was not written in the code but that was what the trial court was giving the parties.
After the trial court questioned the first 18 jurors, a juror was excused for cause. Mr. Tashjian questioned the remaining jurors. A line of questions included whether the parties watched television shows or listened to radio stations such as those hosted by Rush Limbaugh, Oprah Winfrey, or Jerry Springer. At one point, the trial court told Mr. Tashjian he should “wrap it up” and he had two additional minutes. Mr. Tashjian continued the line of questioning about the talk shows and then began asking about different topics. The trial court interrupted counsel by stating: “Counsel, please do not ask the jury to prejudge any evidence. I have asked you to conclude in two minutes, we have passed that time. Thank you. [¶] You may have a seat.”
In a sidebar conference the following colloquy occurred: “Mr. Tashjian: Your Honor, first I would object that I am not given enough opportunity and chance to voir dire the jury. I still have a lot of questions that are very pertinent to my case, and I feel that I am being shortcut here. Having stated my objection, I will request that... [¶] The Court: Counsel, I want to state for the record that you’ve used over 45 minutes during voir dire. I gave you—I originally indicated to you I would give you 30 for [the] whole jury selection process. You’ve used 45 minutes. A good part of the time was asking them about whether people have watched Jerry Springer, listen to certain hosts, and then some of them is asking the jurors to prejudge. And this case, for what it is, is a clear liability case where the defense have fully admitted to 100 percent liability. The whole entire issue is damage. And you go on and on talking tort reform. Counsel, I have given you full opportunity and I think that you haven’t used the time wisely.” After the parties exercised peremptory challenges, the trial court placed no further time limits on the questioning of the prospective jurors.
Plaintiff has failed to provide us with the reporter’s transcript of the testimony on the damage issue or a suitable substitute. The jury rendered a special verdict on July 23, 2008. Plaintiff was awarded $4,180 in past economic loss and $1,500 in past non-economic loss, for a total of $5,680. On August 8, 2008, plaintiff filed a cost memorandum for $4,726.88, which included $528.10 jury fees and court reporter fees of $1,204. The trial court entered judgment in favor of plaintiff on August 15, 2008, in the amount of $5,680 plus costs.
On August 25, 2008, defendant filed a motion to strike plaintiff’s August 14, 2008 costs memorandum pursuant to section 1033, subdivision (a) and California Rules of Court, rule 3.1700(b). Defendant argued plaintiff’s August 14, 2008 cost memorandum was premature because it had been filed before the judgment was ordered on August 15, 2008. Citing section 1033, subdivision (a), defendant also asserted the August 14, 2008 cost memorandum should be stricken in its entirety because plaintiff recovered a judgment that could have been rendered in a limited jurisdiction case. In addition, defendant contended that plaintiff’s postoffer costs should be taxed or stricken pursuant to section 998. Defendant reasoned plaintiff rejected a statutory compromise offer of $9,000 and did not recover a more favorable judgment. Defendant calculated that the judgment was less favorable by deducting the postoffer jury fees of $528.10 and the court reporter fees of $1,204, which left plaintiff with $2,984.78 in recoverable costs. The amount of the judgment would then total $8,664.78 which is less than defendant’s $9,000 section 998 offer.
On August 20, 2008, defendant filed another cost memorandum in the amount of $14,838.47. Defendant argued that she was entitled to costs pursuant to section 998. Defendant argued plaintiff rejected a statutory compromise offer of $9,000 which had been served on February 15, 2008. The section 998 offer states: “Defendant Sarika Chawla, without admitting liability, offers to settle this matter with plaintiff [Liana Mkrtchyan], for the sum of $9000.00, pursuant to [section] 998, in exchange for a release (attached) and dismissal without prejudice of the complaint filed by plaintiff Liana Mkrtchyan. Said sum will include plaintiff Liana Mkrtchyan’s costs.” The compromise offer mistakenly identifies the plaintiff by a different name. The attached release provides in part that, in exchange for $9,000, plaintiff would release and forever discharge: “[Defendant], its subsidiaries, affiliates, divisions, antecedents, successors, officers, directors, assigns, agents, servants, stockholders, general partners, limited partners, employees, representatives and successors in interest, and all attorneys of any of them, as follows: [¶] For any and all claims, demands, actions, causes of actions or suits of any kind or nature whatsoever and particularly on accounts of injuries, known or unknown, both to person or property which have resulted or may in the future develop from an accident which occurred on or about May 26, 2005, and which are the subject of LOS ANGELES SUPERIOR COURT CASE NO. BC371618 entitled MKRTCHYAN v. CHAWLA.”
Plaintiff moved to strike defendant’s cost memorandum. Plaintiff asserted defendant was not the prevailing party and the judgment exceeded the section 998 offer. Plaintiff argued defendant’s section 998 offer was defective because: the acceptance portion of the document did not comply with statutory requirements; the terms of the agreement were not entirely inclusive; and the offer was vague and uncertain in that it required release of third parties and other claims. Plaintiff also argued that the trial court should not consider the February 15, 2008 section 998 offer because defendant did not attach a copy of the release with the moving papers.
On August 27, 2008, plaintiff filed a second cost memorandum. On September 22, 2008, plaintiff filed a notice of non-opposition to defendant’s motion to strike the August 8, 2008 cost memorandum. Plaintiff’s papers stated that she was withdrawing her premature cost memorandum without prejudice.
On September 30, 2008, the hearing was held on plaintiff’s motion to strike defendant’s cost memorandum. The trial court noted that the section 998 offer had been attached to defendant’s cost memorandum. The trial court asked the parties for a copy of the release. Plaintiff also argued defendant’s section 998 offer was defective because it did not contain her name on the signature line. After taking the matter under submission, plaintiff’s motion to strike defendant’s cost memorandum was denied. Plaintiff’s motion to tax costs was granted in part. In denying the motion to strike defendant’s cost memorandum, the trial court: noted defendant had attached the section 998 offer to the cost memorandum; indicated that it had considered the release which was provided during the September 30, 2008 hearing; and rejected plaintiff’s argument that the incorrect name on the signature line invalidated the release attached to defendant’s compromise offer. The trial court found: the release did not reduce or negate the monetary terms of the offer; after deducting postoffer costs, plaintiff’s judgment was less than $9,000 which included costs; and plaintiff failed to obtain a more favorable judgment than defendant’s section 998 offer. The trial court then taxed defendant’s cost item of $320 for the answer which was filed prior to service of the section 998 offer. Plaintiff filed a timely notice of appeal from the cost order in favor of defendant.
III. DISCUSSION
A. Deficient Record Issues
As noted, plaintiff has failed to provide us with the reporter’s transcript of the trial or a suitable substitute. Thus, we cannot reach the merits of plaintiff’s arguments concerning: the prejudice resulting from the limitations on jury voir dire; the limits on the duration of the trial and any ensuing prejudice; and the reasonableness of defendant’s section 998 statutory compromise offer. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Kathy P. (1979) 25 Cal.3d 91, 102; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)
B. Section 998 Costs
1. Overview
Plaintiff argues the trial court erroneously granted defendant’s memorandum of costs pursuant to section 998 which provides in part: “(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.... [¶] (c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover 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 defendant. [¶] (2)(A) In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.”
2. The action is subject to a cost-shifting analysis under section 998.
Plaintiff argues she was the prevailing party pursuant to section 1032, subdivision (a)(4); therefore, she was entitled to her costs. Generally, the prevailing party of a civil action is entitled to recover costs. (§ 1032 subd. (a)(4); Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 128; Barella v. Exchange Bank (2000) 84 CalApp.4th 793,798.) However, section 998 modifies the general rule regarding the prevailing party when a party, who refuses to settle, obtains a less favorable judgment than that set forth in the statutory offer. (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1112; Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 270; Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 798.) The purpose of section 998 is to encourage settlement of litigation. (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280; Barba v. Perez (2008) 166 Cal.App.4th 444, 451-452; Fassberg Construction Co. v. Housing Authority of Los Angeles (2007) 152 Cal.App.4th 720, 764.) Where a plaintiff recovers a judgment less than a defendant’s pretrial section 998 offer, the normal cost recovery rule is altered. Then, plaintiff may not recover its own costs and the defendant may recover its costs (including expert fees). Under these circumstances, the defendant recovers its costs even if the plaintiff prevails at trial. (§ 998, subd. (c)(1); Scott Co. v. Blount, Inc., supra, 20 Cal.4th at p. 1112; Westamerica Bank v. MBG Industries, Inc., supra, 158 Cal.App.4th at p. 128.) We review the trial court’s determination plaintiff obtained a less favorable judgment than defendant’s section 998 settlement offer for an abuse of discretion. (Linthicum v. Butterfield, supra, 175 Cal.App.4th at p. 271; Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1012; Arias v. Katella Townhouse Homeowners Assn. (2005) 127 Cal.App.4th 847, 854; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.)
Here, the section 998 offer was $9,000. Plaintiff recovered a jury verdict of $5,680. Judgment was entered for $5,680 plus costs. On August 8, 2008, plaintiff filed a cost memorandum seeking $4,716.88. Plaintiff’s cost memorandum included $528.10 and $1,204 for jury and court reporter fees respectively. Plaintiff’s total costs plus the judgment are equivalent to $10,396.88. However, postoffer costs for the jury ($528.10) and court reporter fees ($1204) must be excluded from the calculation. (§ 998, subd. (c)(2)(A).) Thus, the total amount of a judgment would be $8,664.78, which is less than the $9,000 settlement offer. The trial court correctly ruled section 998 applied to this case.
3. The section 998 offer was valid.
Plaintiff contends defendant’s section 998 offer was inoperative. Plaintiff argues defendant’s section 998 offer referenced a release in a separate document. A section 998 offer may include nonmonetary terms and conditions. But the offer must be unconditional to be enforceable. (Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1086; Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 799; Hutchins v. Waters (1975) 51 Cal.App.3d 69, 73.) The Court of Appeal has held “An 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. [Citations.] 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.” (Fassberg Constr. Co. v. Housing Authority of City of Los Angeles, supra, 152 Cal.App.4th at pp. 764-765; accord Berg v. Darden (2004) 120 Cal.App.4th 721, 727.) Unless there is conflicting evidence, the validity of a section 998 offer is a question of law requiring de novo review. (See Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 183-184; Westamerica Bank v. MBG, Industries, Inc., supra, 158 Cal.App.4th at p. 130; Peterson v. John Crane, Inc., supra, (2007) 154 Cal.App.4th 498, 505.) The offer or has the burden of establishing the offer was valid and enforceable under section 998. (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 505; Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268; Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 799; Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 585.)
Relying principally on Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, plaintiff contends defendant’s section 998 offer was invalid in this case because there was a release attached to it. Valentino involved a fall at a business. The owner made a section 998 offer conditioned upon the plaintiff releasing the store and its attorneys and insurance carrier from any and all claims. This included claims the owner’s insurer breached duties owed under the Insurance Code. (Id. at pp. 694-695.) The plaintiff declined the defendant’s offer. The jury verdict in favor of the plaintiff was less than the amount of the defendant’s section 998 offer of $15,000. (Id. at pp. 695-696.) The Court of Appeal reversed the trial court’s order granting defendant’s request for costs. (Id. at pp. 696-701.) The Court of Appeal concluded that other conditions in the section 998 offer had effectively negated the monetary term such that it was ineffective to shift costs to the plaintiff. (Id. at pp. 697-698.) The Court of Appeal held, “To pinpoint the value of the various potential unfiled claims [the plaintiff] might have had at the time of the statutory offer or in the future against three different parties, only one of whom was even a party to the instant action, would require the court to engage in wild speculation bordering on psychic prediction.” (Id. at p. 699.) The Court of Appeal further held: “It would be hard enough for a trial court to place a value on a condition requiring the plaintiff to dismiss a single specific lawsuit she had already filed against the defendant in another court. But when the condition mandates surrender of an array of potential lawsuits against not only the defendant but two other parties the task becomes impossible. Even if it were possible, it would not be worth the cost. Recalling the underlying purpose of section 998 is to promote judicial economy, this court is not about to encourage defendants to add conditions to their statutory offers which introduce so much uncertainty to those offers the courts must spend hours or days sorting them out to determine whether plaintiffs have achieved a more favorable result at trial.” (Id. at pp. 700-701.)
Nevertheless, a general release provision does not render a section 998 offer unreasonable as a matter of law. (See Linthicum v. Butterfield, supra, 175 Cal.App.4th at pp. 271-273; Fassberg Const. Co. v. Housing Authority of City of Los Angeles, supra, 152 Cal.App.4th at pp. 764-767; Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 907.) Rather, the rule is that section 998 offer is governed by the legal principles applicable to contracts generally. (T.M. Cobb Co. v. Superior Court, supra, 36 Cal.3d at p. 278; Linthicum v. Butterfield, supra, 175 Cal.App.4th at pp. 272-273; Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at p. 907.) Thus, a section 998 offer is enforceable if it is “sufficiently definite” as to the parties’ obligations that those obligations have been performed. (Elite Show Services, Inc. v. Staffpro, Inc., supra, 119 Cal.App.4th at p. 268; see also Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at pp. 907-908 [§ 998 offer is enforceable if evidence shows offer clearly and unambiguously intends to settle the action before the trial court]; Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) A section 998 offer is valid if the trial court has evidence that the general release only pertained to the pending action before it. (Linthicum v. Butterfield, supra, 175 Cal.App.4th at pp. 271-272; Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at pp. 907-908.)
In this case, the settlement offer provides: “Defendant Sarika Chawla, without admitting liability, offers to settle this matter with plaintiff [Liana Mkrtchyan], for the sum of $9000.00, pursuant to [section] 998, in exchange for a release (attached) and dismissal without prejudice of the complaint filed by plaintiff Liana Mkrtchyan. Said sum will include plaintiff Liana Mkrtchyan’s costs.” The attached release provides in part that, in exchange for $9000, plaintiff would release and forever discharge: “[Defendant], its subsidiaries, affiliates, divisions, antecedents, successors, officers, directors, assigns, agents, servants, stockholders, general partners, limited partners, employees, representatives and successors in interest, and all attorneys of any of them, as follows: [¶] For any and all claims, demands, actions, causes of actions or suits of any kind or nature whatsoever and particularly on accounts of injuries, known or unknown, both to person or property which have resulted or may in the future develop from an accident which occurred on or about May 26, 2005, and which are the subject of LOS ANGELES SUPERIOR COURT CASE NO. BC371618 entitled MKRTCHYAN v. CHAWLA.”
The foregoing settlement and release identified two parties and was limited to the present personal injury action. The release then lists a number of other parties, who might be covered by the language of the release. However, the release clearly restricts those claims to the accident which occurred on May 26, 2005, which were the subject of this lawsuit. This release is not so uncertain for section 998 purposes to be enforceable. It is clear that the general release did not apply to any other litigation. In any event, unlike in Valentino, there is no evidence that the release was attempting to cover a valuable claim by a different party or entity that was unrelated to the plaintiff’s personal injury action. Thus, the release was not so uncertain that it was difficult to place a value on the section 998 offer due to some on other potential cause of action which might be extinguished by plaintiff’s acceptance. The trial court correctly ruled the proposed release did not invalidate defendant’s section 998 offer.
4. Plaintiff’s remaining contentions lack merit.
Citing section 1005, subdivision (b), plaintiff argues that the trial court erred in considering defendant’s opposition because neither the section 998 offer nor the release were attached to the opposing papers. Section 1005, subdivision (b) provides, “[A]ll papers opposing a motion... shall be filed with the court and a copy served on each party at least nine court days... before the hearing.” However, section 1005, subdivision (b) also gives the trial court discretion to prescribe a shorter time. (See Urshan v. Musician’s Credit Union (2004) 120 Cal.App.4th 758, 765, fn. 5; Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 549; Moore v. El Camino Hosp. Dist. (1978) 78 Cal.App.3d 661, 664; Lewis & Queen v. S. Edmondson & Sons (1952) 113 Cal.App.2d 705, 710-711; Mckee v. Mires (1952) 110 Cal.App.2d 517, 522-523.) The trial court considered the section 998 offer noting it had been attached to defendant’s cost memorandum. The trial court also indicated that it would consider the release because it had only been raised as in issue in plaintiff’s reply to the opposition. This issue arose because plaintiff questioned the validity of the section 998 offer. Thus, plaintiff raised the validity of the release as a defense to defendant’s section 998 offer. It was not an abuse of discretion for the trial court to consider the release in order to resolve the issues raised by plaintiff’s motion to strike defendant’s cost memorandum which included the validity of the section 998 offer.
Plaintiff also argues the section 998 offer was fatally defective because the acceptance line mistakenly stated that her attorney was representing a different party. Given the specific references to plaintiff’s action including the case name and number, this was an obvious typographical error. The obvious typographical error did not render the section 998 offer invalid. (See Klingele v. Engelman (1987) 192 Cal.App.3d 1482, 1485-1486; Domino v. Mobley (1956) 144 Cal.App.2d 24, 28.) The trial court did not err in awarding section 998 costs to defendant.
IV. DISPOSITION
The judgment and order denying plaintiff’s motion to strike are affirmed. Defendant, Sarika Chawla, is awarded her costs on appeal from plaintiff, Liana Mkrtchyan.
We concur ARMSTRONG, J., MOSK, J.