Opinion
No. B181928.
September 11, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III., sections B., C., D., E. and F.
Appeal from the Superior Court of Los Angeles County, No. BC305689, James C. Chalfant, Judge.
Rintala, Smoot, Jaenicke Rees, Peter C. Smoot, J. Larson Jaenicke and Michael B. Garfinkel for Plaintiff and Appellant.
Irell Manella, Henry Shields, Jr., Laura A. Seigle and Anne Hwang for Defendant and Respondent.
OPINION
I. INTRODUCTION
Plaintiff and appellant Sander/Moses Productions, Inc. (Sander/Moses) contracted with NBC Studios, Inc. (NBC Studios) to provide executive production services for the television series entitled Profiler, which the NBC television network broadcast between 1996 and 2000. Sander/Moses provided those services for two years and was paid the fixed compensation to which it was entitled under the agreement. A dispute arose over Sander/Moses's entitlement to contingent compensation under the agreement. Sander/Moses sued, alleging that NBC Studios wrongly applied a contract limitation provision to calculate the contingent compensation owed Sander/Moses under the agreement. The trial court granted NBC Studios's motion for summary adjudication as to the breach of fiduciary duty cause of action and its motion for judgment on the pleadings as to the cause of action for breach of the implied covenant of good faith and fair dealing. A jury subsequently returned a verdict in favor of NBC Studios on the remaining causes of action.
Sander/Moses appeals the judgment entered after the verdict on various grounds. In the published portion of the opinion, we discuss Sander/Moses's contentions that the trial court erred by not shifting the burden of proof to NBC Studios. We hold that the trial court correctly instructed the jury on the burden of proof.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Agreement Between NBC Studios and Sander/Moses for the Services of Sander and Moses As Executive Producers of the Profiler Series
In 1996, NBC Studios was a production company that produced television programs and sold them to the NBC television network, among others. The network paid NBC Studios a licensing fee for the right to broadcast the programs NBC Studios developed.
Ian Sander (Sander) and Kim Moses (Moses) were experienced executive producers. They were the principals in Sander/Moses, a loan-out company that made the executive production services of Sander and Moses available to production companies.
Production companies such as NBC Studios hire executive producers to manage the day-to-day production of television programs.
In 1996, NBC Studios purchased a script for a television pilot entitled Insight from its author, Cynthia Saunders. NBC Studios renamed the pilot Profiler. At the time NBC Studios acquired the rights to Profiler, the NBC television network was planning a Saturday night program lineup of "spooky" programs that the network referred to as "thrillogy night." The NBC television network had expressed an interest in airing Profiler as part of thrillogy night, along with two other new one-hour programs entitled The Pretender and Dark Skies.
NBC Studios began searching for an executive producer for the Profiler pilot and ultimately entered into negotiations with Sander/Moses for the services of Sander and Moses as executive producers for the Profiler pilot and proposed series. NBC Studios expected Sander and Moses to render the types of services customarily rendered by executive producers in the television industry. An experienced entertainment attorney and an agent from Creative Artists Agency (CAA) represented Sander/Moses in the negotiations, and NBC Studios was represented by an in-house attorney from its business affairs department.
On February 29, 1996, Sander/Moses entered into an agreement with NBC Studios with respect to production of a one-hour pilot script for Profiler and a proposed one-hour series based on the pilot. The agreement provided that if the pilot was produced, NBC Studios would pay Sander/Moses $95,000 and would engage Sander and Moses as the executive producers for the first year at $37,500 per episode. The agreement also gave NBC Studios an option to retain the services of Sander and Moses for the second and third years of production at $40,000 and $45,000 per episode, respectively. In addition, the agreement provided that if NBC Studios retained Sander and Moses for the second year of the series, but did not retain them as executive producers for the third year, they would be engaged as executive consultants for the third year at $20,000 per episode.
In addition to the fixed compensation, the agreement specified that Sander/Moses was entitled to contingent compensation. For executive producing the pilot, Sander/Moses was to receive 2.5 percent of NBC Studios's "adjusted gross" from the series. Sander/Moses was also entitled to an additional 2.5 percent of the "adjusted gross" for executive producing the first year of the series and another such 2.5 percent for executive producing the second year of the series.
The term "adjusted gross" was defined in appendix I to the agreement as the amount of "gross receipts" that remained after certain deductions, such as distribution expenses. The term "gross receipts" had a traditional definition in the appendix, but then was further defined to be the same as the license fees that the NBC television network paid to NBC Studios for the rights to broadcast Profiler. The provision equating gross receipts to license fees further required NBC Studios to use "[a]n amount equal to ninety-five percent (95%) of the published final pattern budget for the applicable broadcast year approved by [NBC Studios] for programs produced for the first four (4) full broadcast years" (Budget Formula) for purposes of calculating gross receipts for the first three years of the series. That Budget Formula, however, was subject to an overriding limitation: "[P]rovided, however, that the total license fee . . . shall in no event exceed the license fee . . . paid by [the] NBC [television network] during the applicable broadcast year to suppliers of programs comparable to the Program [Profiler] in a similar broadcast year. . . ." The "programs comparable" limitation did not apply to the fourth year of the series.
According to the attorney who negotiated the agreement on behalf of NBC Studios, appendix I was based on a form that had been developed through prior negotiations between other CAA agents and NBC Studios. The compensation scheme described in appendix I was the "top" definition of adjusted gross that NBC Studios had negotiated in the past with CAA agents, i.e., it had the most favorable terms of the agreements negotiated between NBC Studios and CAA on behalf of its other clients.
The "published final pattern budget" is the budget for each episode of the program that is approved by NBC Studios and the NBC television network before shooting commences. The final pattern budget per episode for Profiler for the first season was $1,336,182.
The entire provision reads as follows: "Company [NBC Studios] and Participant [Sander/Moses] have agreed that for purposes of computing Gross Receipts arising out of Company's authorization of the broadcast of the Program [Profiler] over the facilities of the NBC television network ('NBC'), the network license agreement between NBC and Company with respect to such broadcast shall be deemed to provide for the payment by NBC to Company of the following applicable license fees, which license fees shall be deemed to be in lieu of all actual Gross Receipts, if any, accruing to Company from the authorization of such broadcast:
"(i) for the initial network broadcast by NBC of the Program, the following amounts: [¶]. . . [¶]
"(B) in the case of a series, an amount equal to ninety-five percent (95%) of the published final pattern budget for the applicable broadcast year [sic] approved by Company for Programs produced for the first four (4) full broadcast years (five (5) broadcast years if a Midseason broadcast start), and in the fifth (sixth if a Midseason start) and succeeding broadcast years, for programs produced subsequent to the first four (4) full broadcast years (five (5) broadcast years if a Midseason start), one hundred percent (100%) of the published final pattern budget, plus, in any event, such additional cast protection allowances or other `breakage,' if any, which NBC shall pay Company in connection with the Program (the foregoing is not meant to guarantee that NBC shall agree to pay any such `breakage' fees), provided, however, that the total license fee including `breakage' shall in no event exceed the license fee including customary `breakage,' if any, paid by NBC during the applicable broadcast year to suppliers of programs comparable to the Program [Profiler] in a similar broadcast year. . . ."
Under the agreement, NBC Studios retained all ownership rights to Profiler, including any copyrights. NBC Studios also controlled the production, distribution, and exploitation of Profiler. It had the right to make the "final and controlling" determination "in all matters respecting the performance of [Sander and Moses's] services (including without limitation matters involving creative judgment and financial controls)." The agreement further provided that "[NBC Studios] shall have no obligation to produce, complete, release, distribute, advertise, or exploit any television program or series and that "[n]othing contained in this Agreement shall constitute a partnership or joint venture by the parties hereto. . . ."
Specifically, the agreement provided that "[a]ll results and proceeds of [Sander and Moses's] services under this Agreement shall be and become the property of [NBC Studios], and [NBC Studios] shall own all rights of every kind and character therein throughout the universe in any and all languages in perpetuity."
B. The Parties' Performance Under the Agreement
Sander and Moses provided executive production services for the Profiler pilot, which, in May of 1996, the NBC television network "picked up" — i.e., opted to have produced for exhibition or distribution — as a series for an initial season on the NBC television network. Pursuant to the agreement, they also provided executive production services for the first and second years of Profiler. The NBC television network broadcast Profiler on Saturday night, back-to-back with another thrillogy series, The Pretender.
Although Profiler was picked up by the NBC television network for a third season, NBC Studios did not retain Sander and Moses as executive producers that year. Instead, pursuant to the agreement, they were paid $20,000 per episode as executive consultants for the third season, but were not asked to perform any services. They did not perform any services or receive any compensation for the fourth and last season of Profiler. In total, NBC Studios paid Sander/Moses over $2,122,500 for Sander and Moses's work on Profiler.
C. The Claim for Contingent Compensation
NBC Studios paid Sander/Moses all fixed sums due under the agreement for the pilot and the first, second, and third years of the series. The dispute centers on Sander/Moses's claim for contingent compensation under the agreement.
On June 7, 2000, Sander/Moses's attorney requested an accounting from NBC Studios. On August 15, 2000, NBC Studios provided an accounting showing adjusted gross receipts for Profiler through June 30, 2000. It listed Sander/Moses's "contingent compensation" at "$0." Thereafter, NBC Studios sent annual accountings to Sander/Moses on September 24, 2001, September 27, 2002, and October 9, 2003, each showing Sander/Moses's contingent compensation as "$0." Each statement calculated gross receipts for Profiler for the first three years by adding up all the license fees NBC Studios received from the NBC television network for the right to broadcast the show.
Because the "programs comparable" limitation did not apply to Sander/Moses's entitlement to contingent compensation for the fourth year of the series, NBC Studios calculated the gross receipts for that year using the Budget Formula.
NBC Studios's apparent rationale for simply using the Profiler license fee to calculate gross receipts for the first three years of the series, as opposed to the Budget Formula (limited by the "programs comparable" requirement), was as follows: Because The Pretender had a license fee that was almost identical to that for Profiler, and was otherwise comparable to Profiler, the license fees in the Profiler statements would be substantially similar to those in The Pretender statements; and, because the "programs comparable" limitation trumped the Budget Formula, using the Profiler license fee in the Profiler statements would yield the same or similar results as using the comparable statement for The Pretender.
In early 2002, Sander/Moses retained an accountant who sought an explanation from NBC Studios as to how the gross receipts shown in its annual accountings had been calculated. In response, NBC Studios informed the accountant that for the first three years of the series, it compared Profiler to The Pretender to determine the licensing fee. In addition, NBC Studios gave the accountant license fee information for several other shows. According to NBC Studios, any "gross receipts" amount would have to be limited by the license fee for The Pretender, which series NBC Studios considered "comparable" to Profiler under the agreement. This gross receipts figure was then reduced to zero by adjustments in the form of deductions for items such as distribution fees.
Sander/Moses contended, and it is undisputed, that if NBC Studios had used the Budget Formula for the first three years of the series, the adjusted gross amount for Profiler would have been a positive $18,841,627 (as opposed to the approximately negative $25 million calculated by NBC Studios). Sander/Moses maintained that The Pretender was not a comparable program under the agreement, and therefore there should have been no limitation on the Budget Formula. Because Sander/Moses was entitled to 7.5 percent of that positive amount, it contended its damages without interest were $1,413,122.
Sander/Moses's primary theory of recovery was that there were no programs comparable to Profiler during the years in question and, therefore, the "programs comparable" limitation in the Appendix I definition did not apply. Ninety-five percent of the Profiler final pattern budget for the first season was $1,269,373, whereas the license fee received by NBC Studios from the NBC television network for the first season was $950,000.
In its October 2003 accounting statement, NBC Studios calculated that gross receipts for Profiler were $163,203,805 and that deductions (for purposes of calculating the adjusted gross) were $188,268,713, leaving a negative adjusted gross of approximately $25 million. Using the Budget Formula, Sander/Moses calculated that gross receipts were $192,174,345 and that deductions were $173,332,718, leaving a positive adjusted gross of $18,841,627.
D. The Sander/Moses Lawsuit and the Jury Trial
Sander/Moses filed an action against NBC Studios asserting causes of action for breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, accounting, and declaratory relief. The trial court granted NBC Studios's motion for summary adjudication as to the cause of action for breach of fiduciary duty and the request for punitive damages. It also granted NBC Studios's motion for judgment on the pleadings as to the cause of action for breach of the implied covenant of good faith and fair dealing.
The case proceeded to a jury trial in November 2004. During the arguments relating to jury instructions, Sander/Moses contended that the burden of proof should be shifted to NBC Studios. But the trial court refused to shift the burden, and instead gave an instruction that placed the burden of proof on Sander/Moses.
Sander/Moses proposed a general verdict form, while NBC Studios proposed a special verdict form. Ultimately, Sander/Moses acquiesced in a two-question special verdict form, the first question of which read: "Has Sander/Moses Productions, Inc. proved that the NBC network did not pay license fees (including customary breakage) to suppliers of programs comparable to Profiler in a similar broadcast year?" The second question on the form dealt with damages.
Over Sander/Moses's objection, the trial court gave a jury instruction concerning the meaning of the term "comparable" in the agreement's gross receipts formula. The challenged instruction read: "The term comparable means capable of or suitable for comparison or similar. To determine what is comparable, you should consider only the factors that the evidence has shown were appropriate and consistent with the contract's purpose for determining license fees."
Prior to the close of evidence, the trial court, after discussing the matter with counsel in chambers, concluded that the facts concerning the interpretation issue were largely undisputed, and that the parties intended the term "comparable" to have its "plain meaning." The trial court then indicated that it would define the term "comparable" for the jury and allow the parties to "argue the purpose of that language as articulated by witnesses in applying that plain meaning."
After slightly more than a day of deliberations, the jury notified the trial court that a verdict had been reached. Because the parties were close to settling the matter, they requested that the trial court seal the verdict so they could have additional time to attempt to finalize an agreement. In doing so, the parties stipulated to waive their right to poll the jury and to object to the form of the verdict. Based on that stipulation, the verdict was sealed and the jurors released. The next day, after the parties failed to reach a settlement agreement, the trial court unsealed the verdict. The jury had returned a verdict in favor of NBC Studios. Specifically, in response to question number one on the special verdict form, the jury answered "no." After judgment was entered on the verdict, the trial court found that NBC Studios was entitled under Code of Civil Procedure section 998 to recover its expert fees.
III. DISCUSSION
A. The Trial Court Did Not Err by Instructing the Jury That Sander/Moses Had the Burden of Proof
Challenges to jury instructions are subject to a de novo standard of review. ( People v. Posey (2004) 32 Cal.4th 193, 218 [ 8 Cal.Rptr.3d 551, 82 P.3d 755].) In the absence of evidence justifying an alteration in the normal allocation of the burden of proof, the rule in California is that "a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500; see Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667 [ 3 Cal.Rptr.3d 279] ( Sargent Fletcher).) "It is true that `[t]he general rule allocating the burden of proof applies "except as otherwise provided by law." The exception is included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule. In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.' (Cal. Law Revision Com. com., 29B West's Ann. Evid. Code (1966 ed.) § 500, p. 431.)" ( Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661 [ 25 Cal.Rptr.2d 109, 863 P.2d 179]; accord, Samuels v. Mix (1999) 22 Cal.4th 1, 19 [ 91 Cal.Rptr.2d 273, 989 P.2d 701].)
Relying primarily on Wolf v. Superior Court (2003) 107 Cal.App.4th 25 [ 130 Cal.Rptr.2d 860] ( Wolf), Sander/Moses argues that the trial court committed prejudicial error when it refused to reallocate the normal burden of proof and instruct the jury that NBC Studios had the burden of proof. According to Sander/Moses, apart from whether there is a fiduciary relationship, whenever a case involves contingent compensation based on financial information exclusively under the control of the defendant, the burden of proof automatically shifts to the defendant as a matter of law.
The court in Wolf, supra, 107 Cal.App.4th 25, decided the issue before it at the demurrer stage. Therefore, in analyzing the plaintiff's contention regarding the burden of proof, the appellate court in that case was required to treat the allegations of the complaint as if they were true. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [ 9 Cal.Rptr.2d 92, 831 P.2d 317], citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [ 216 Cal.Rptr. 718, 703 P.2d 58] and Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828 [ 122 Cal.Rptr. 745, 537 P.2d 865].)
In the complaint in Wolf, supra, 107 Cal.App.4th 25, the plaintiff alleged that he entered into an agreement with the defendant Walt Disney Pictures and Television (Disney) in which he assigned to Disney the rights to his novel, Who Censored Roger Rabbit? (1981), as well as to the Roger Rabbit characters, and that in exchange for those rights, the plaintiff was to receive fixed compensation, as well as contingent compensation. ( Id. at p. 28.) The plaintiff also alleged that an amendment to the agreement granted him audit rights; that each time he attempted to exercise those rights, Disney failed to provide access to pertinent records; that Disney underreported revenues; and that Disney failed to disclose the nature of its third party agreements concerning the Roger Rabbit characters and the compensation received from those third party agreements. ( Ibid.) Based on those allegations, the court in Wolf held that the plaintiff had failed to state facts sufficient to constitute a cause of action for breach of fiduciary duty. ( Id. at p. 27 ["a contingent entitlement to future compensation within the exclusive control of one party does not make that party a fiduciary in the absence of other indicia of a confidential relationship"].) The court added that, "[i]n cases where the financial records essential to proving the contingent compensation owed are in the exclusive control of the defendant, fundamental fairness . . . requires shifting the burden of proof to the defendant." ( Id. at p. 36.)
Wolf, supra, 107 Cal.App.4th 25, is not dispositive here. First, as noted, Wolf involved only the issue of whether the plaintiff had stated a cause of action for breach of fiduciary duty. Because of the procedural posture of the case, the court was not called upon to make a definitive determination as to whether the burden of proof should be shifted at the time of trial. Rather, the court merely observed that, "in contingent compensation and other profit-sharing cases where essential financial records are in the exclusive control of the defendant who would benefit from any incompleteness, public policy is best served by shifting the burden of proof to the defendant, thereby imposing the risk of any incompleteness in the records on the party obligated to maintain them." ( Id. at p. 35.) But the court made that observation only in connection with the allegations in the complaint and in holding that there was no claim stated for breach of fiduciary duty.
The facts alleged in the complaint in Wolf, supra, 107 Cal.App.4th 25, concerning access to necessary financial information differ substantially from the facts in this case. There, Disney allegedly refused to turn over necessary information in response to repeated audit requests, and also allegedly refused to disclose the nature of its relationships with third parties regarding the marketing and sales of Roger Rabbit merchandise.
Here, there is no evidence that the information necessary to calculate the amount of contingent compensation to which Sander/Moses was entitled under the agreement was unavailable. To the contrary, the record shows that Sander/Moses was provided information through the audit process, including information about other programs. Moreover, Sander/Moses's expert was able to calculate its damages based on the available information. And Sander/Moses took the position in its opening brief that the amount to which it was entitled was undisputed. Thus, unlike the situation presented by the facts pled in Wolf, supra, 107 Cal.App.4th 25, Sander/Moses had the ability to prove the amount of compensation to which it claimed it was entitled. Accordingly, there was no need to shift the burden of proof.
According to Sander/Moses, "[t]he evidence is undisputed that if the calculation is made in this fashion [using the Budget Formula], the adjusted gross receipts for Profiler . . . are in fact a positive $18,841,627."
In addition, even if NBC Studios had "exclusive" control over information essential to Sander/Moses's case on liability, there is nothing in the record to suggest that NBC Studios withheld such information, a fact that distinguishes this case from Wolf, supra, 107 Cal.App.4th 25. Contrary to Sander/Moses's assertion, "[g]reater access to relevant evidence does not mandate that a defendant bear the burden of proof on the issue." ( Sargent Fletcher, supra, 110 Cal.App.4th at p. 1671.) Sander/Moses made no showing in the trial court that it was unable to obtain the information needed to establish its claimed rights.
Under Sargent Fletcher, supra, 110 Cal.App.4th 1658, Sander/Moses would have to demonstrate why specific information necessary to prove its case was not obtained from NBC Studios during discovery, or why such information was received too late to be useful at trial. ( Id. at p. 1673 ["Defendants almost always are in a better position to know what they did and why they did it. Liberal rules of discovery apply to even up that particular playing field"].)
"`On rare occasions, the courts have altered the normal allocation of the burden of proof.' . . . But the exceptions are few, and narrow." ( Sargent Fletcher, supra, 110 Cal.App.4th at p. 1670, quoting National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346 [ 133 Cal.Rptr.2d 207].) Unlike the burden of proof (or burden of persuasion) which does not shift during trial, the "`burden of producing evidence'" (Evid. Code, § 110) or burden of going forward " may shift between plaintiff and defendant throughout the trial." ( Sargent Fletcher, supra, 110 Cal.App.4th at p. 1667.) Although "exceptions to the general rule placing the burden of proof for prima facie elements on defendants are made when it is otherwise impossible for the plaintiff to make its case, and when policy considerations support affording the plaintiff greater protection" ( id. at p. 1673), Sander/Moses failed to show that such an exception to the normal allocation of the burden of proof was appropriate in this case.
B.-E
See footnote, ante, page 1086.
B. Standards of Review We apply different standards of review to the distinct issues raised by Sander/Moses on appeal. The challenges to the special verdict form are subject to a de novo standard of review. ( Miller v. Weitzen (2005) 133 Cal.App.4th 732, 736, fn. 3 [jury instructions]; Wilson v. Ritto (2003) 105 Cal.App.4th 361, 366 [special verdict form]; Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303 [special verdict form]; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285 [special verdict form].) Sander/Moses's challenge to the trial court's order granting summary adjudication in favor of NBC Studios on the breach of fiduciary duty cause of action is also governed by a de novo standard of review. ( Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) "We make `an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' ( Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [ 38 Cal.Rptr.2d 35].)" ( Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216.) Sander/Moses's challenge to the trial court's award of expert witness fees as a section 998 discretionary item of costs is governed by an abuse of discretion standard. ( Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.)
C. Sander/Moses Has Forfeited Its Right to Seek Appellate Review of the Special Verdict FormSander/Moses contends that the trial court erred by submitting to the jury an incomplete and confusing special verdict form. We hold that Sander/Moses has forfeited its right to challenge the propriety of the special verdict form. Sander/Moses proposed a general verdict form, while NBC Studios proposed a special verdict form that included fifteen questions about whether seven other programs were comparable to Profiler. When Sander/Moses objected to NBC Studios's special verdict form, NBC Studios submitted a second special verdict form with two questions, to which Sander/Moses also objected. As modified, proposed question number one read as follows: "Has Sander/Moses Productions, Inc. proved that the NBC network did not pay license fees (including customary breakage) to suppliers of programs comparable to Profiler in a similar broadcast year?" The second question was that if the answer to the first was in the affirmative, "State the amount of damages suffered by Sander/Moses Productions, Inc., as a result of NBC Studios, Inc.'s breach of the agreement." During the discussion of certain proposed modifications to that form, the following exchange took place between Sander/Moses's trial counsel and the trial court: "[The Court]: All I'm asking you is, can you live with question one as the only basis of breach? If you can't, I need to know why, so that the question can be changed, or we can add another question. [Sander/Moses's Counsel]: We'll live with it. [The Court]: I don't want to give this to the jury and have the jury come back and say `No,' and you say, `You know what, I articulated a different breach to the jury, and it wasn't on the jury form.' That's what I don't want to have happen. You didn't say it out loud. [Sander/Moses's Counsel]: I'm sorry, we'll live with this." Based on that exchange, the trial court approved and submitted to the jury a modified version of the two-question special verdict form proposed by NBC Studios. Sander/Moses argues that the two-question special verdict form was incomplete, inconsistent with its theory of the case, and confusing. It contends that the form of question number one allowed the jury to find that other programs were comparable to Profiler, without identifying the other program or programs. According to Sander/Moses, the form of that question deprived it of the ability to determine whether the other program or programs upon which the verdict was based had higher license fees than Profiler. The implication of Sander/Moses's argument is that the jury may have found a program comparable to Profiler that had a license fee equal to or greater than the amount the Budget Formula would have yielded. If that was the case, Sander/Moses argues, it may have been entitled to damages. This theory, however, differs from the theory of recovery that Sander/Moses pursued in the trial court — i.e., there were no programs comparable to Profiler such that the "programs comparable" limitation did not apply. In essence, Sander/Moses's argument is that the special verdict form was incomplete. It contends that the trial court should have asked a follow-up question seeking to determine whether the other comparable program or programs had license fees that "were more, equal to, or less than the network license fee paid for Profiler." The defect in this argument is that Sander/Moses failed to request any additional questions when specifically asked by the trial court whether any were required. During the discussion of the special verdict form, the trial court made it clear that it was affording Sander/Moses the opportunity to deal with the issue about which it now complains, and Sander/Moses expressly rejected that opportunity. Moreover, Sander/Moses opposed NBC Studios's original proposed special verdict form that contained fifteen questions about the comparability of seven specifically identified programs. Had it been submitted to the jury, that form (or a modified version including programs Sander/Moses considered comparable) would have addressed the very matter upon which Sander/Moses now asserts error. Under these circumstances, Sander/Moses has forfeited the right to challenge the completeness of the special verdict form on appeal. Generally, an appellant may forfeit his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure to which he or she objects on appeal. ( Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166.) As one court has commented, "[t]here is nothing shocking about these rules. They are consistent with the adversary system's appreciation that lawyers in civil litigation must be given adequate breathing room to select whatever trial strategies they deem appropriate." ( Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686 ( Mesecher).) This general rule has been applied to cases involving attacks on special verdict forms when the appellant failed to object in the trial court. (See Mesecher, supra, 9 Cal.App.4th at pp. 1686-1687; John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 579-580 [failure to request modification to special verdict form results in waiver of any claim that it was insufficient to enable the findings desired].) That rule also applies to allegedly incomplete jury instructions as to which no objection is raised at the trial court level. ( Orient Handel v. United States Fid. Guar. Co. (1987) 192 Cal.App.3d 684, 697-699.) In Mesecher, supra, 9 Cal.App.4th 1677, the defendant jointly drafted a special verdict form knowing it could result in inconsistent verdicts. ( Id. at pp. 1686-1687.) The defendant allowed the trial court to submit the form to the jury, making a "deliberate choice to avoid the gamble of an all-or-nothing verdict in favor of a compromise verdict. . . ." ( Id. at p. 1687.) On appeal, the defendant argued that the jury verdict should be overturned because the answers to the special verdict questions showed that the verdict was inconsistent. ( Id. at p. 1685.) The appellate court held that the defendant had forfeited its right to assert error on the ground the ensuing verdicts were inconsistent. ( Id. at p. 1687.) Although this case differs somewhat from Mesecher, supra, 9 Cal.App.4th 1677, the conclusion we reach is the same as in that case. Sander/Moses initially objected to and argued about the adequacy of the two-question special verdict form that NBC Studios had proposed, but, when pressed by the trial court on the issue of whether another question or further clarification was required, Sander/Moses stated twice that it could "live with" the special verdict form as modified. Having been afforded the opportunity in the trial court to remedy the deficiency about which it now complains, Sander/Moses may not pursue the issue on appeal. This conclusion is buttressed by the fact that NBC Studios originally proposed a special verdict form with several questions which would have yielded the jury's findings on the comparability of seven programs. But Sanders/Moses objected to that form, causing NBC Studios to withdraw it. As a result, Sander/Moses cannot now complain that the form that was submitted to the jury failed to disclose the program or programs that the jury found to be comparable to Profiler. The cases Sander/Moses cites involving a non-forfeiture are not applicable to the situation here, in which Sander/Moses, in effect, agreed to the form it now challenges. In addition, Sander/Moses expressly waived its right to poll the jury and object to the verdict after it was returned, but before the jury was released. It is well established in California that "when a verdict is not in proper form and the jury is not required to clarify it, any error in said verdict is waived by the party relying thereon who at the time of its rendition failed to make any request that its informality or uncertainty be corrected." ( Brown v. Regan (1938) 10 Cal.2d 519, 523-24, citing Benson v. Southern Pac. Co. (1918) 177 Cal. 777; see also Lynch v. Birdwell (1955) 44 Cal.2d 839, 851.) The jury's answer to question number one of the special verdict form indicated that the jury found at least one other program comparable to Profiler, but it did not disclose whether the jury found more than one program comparable. Similarly, the jury's answer did not disclose the identity of the program or programs that the jury found comparable, thereby, according to Sander/Moses, depriving it of the ability to determine whether the license fees for the comparable program or programs were substantially higher than the Profiler license fee. That alleged deficiency was apparent from the face of the special verdict form; yet, Sander/Moses voluntarily agreed that the jury could be released before the verdict was unsealed, thereby relinquishing the right to object to the verdict after it was announced and to request that the trial court order the jury to correct the alleged deficiency before being released. This is another basis for the forfeiture by Sander/Moses of its right to challenge the form of the special verdict on appeal.
Sander/Moses contends that there was evidence in the record that NBC Studios received network license fees for other programs during the relevant time frame as high as $1.1 million.
D. The Jury Instruction Concerning the Disputed Contract Term "Comparable" Did Not Constitute Prejudicial ErrorSander/Moses contends that the trial court erred by taking away from the jury a disputed contract interpretation issue. We hold the trial court did not err by instructing the jury on the disputed contract interpretation issue. The trial court instructed the jury concerning the term "comparable" as used in the limiting provision of Appendix I. The trial court's instruction stated that, "The term `comparable' means `capable of or suitable for comparison' or `similar.' To determine what is `comparable,' you should only consider the factors that the evidence has shown were appropriate and consistent with the contract's purpose for determining license fees." Sander/Moses contends that the term "comparable" was subject to at least two conflicting interpretations, and that the extrinsic evidence in support of those interpretations was in dispute. Therefore, according to Sander/Moses, the jury should have been allowed to interpret the meaning of "comparable" based on the conflicting evidence. Sander/Moses argues that by giving the instruction concerning the meaning of "comparable," the trial court erroneously decided a factual issue that should have been decided by the jury. The challenged instruction did not take the comparability issue away from the jury. The instruction began by defining comparable in the most general terms — almost a dictionary definition — as "`capable of or suitable for comparison'" or "`similar.'" The trial court then instructed the jury that, "[t]o determine what is comparable, you should consider only the factors that the evidence has shown were appropriate and consistent with the contract's purpose for determining license fees." A fair reading of the latter portion of the challenged instruction is that the jury, not the trial court, was to determine what program or programs were comparable to Profiler using factors shown by the evidence to be appropriate. Thus, the comparability issue was not taken away from the jury, as Sander/Moses contends. In fact, based on the challenged instruction, each side argued to the jury the evidence that supported its interpretation of that term. Sander/Moses vigorously argued that its interpretation of "comparable," based on a wide variety of factors, was correct, while NBC Studios contended that its interpretation, based primarily on a comparison of program license fees, should be accepted. That each party was allowed to advocate its view of the relevant factors and supporting evidence to the jury during argument suggests that, rather than taking the issue away from the jury, the instruction facilitated the jury's determination of the "comparable programs" issue. Sander/Moses complains that, by tying the factors the jury could consider to license fees, the instruction implicitly adopted NBC Studios's narrow interpretation of the "programs comparable" term. The instruction, however, refers to "the factors the evidence shows were appropriate and consistent with the contract's purpose for determining license fees." The reference to license fees appears to refer to the term used in the Appendix to the agreement for "gross receipts," subject to limitations. The instruction did not state or imply that license fees were the sole factor for defining the meaning and application of "comparable." Indeed, Sander/Moses was not deterred from arguing to the jury that it should consider a variety of creative factors, not just license fees. The instruction did not limit the factors to be applied beyond those introduced in evidence, nor did it explicitly suggest that the factors urged by one side should be favored over those advanced by the other. The jury was free to choose some facts, but not others, from each party's presentation. There is nothing in the record to suggest that the jury read the instruction narrowly and therefore applied only those factors argued by NBC Studios. Neither party provided evidence of the intent of the parties as to the meaning of "comparable." Absent was any evidence of custom and usage, which is often introduced to establish the intent of the parties in using a term in a particular industry. In view of the lack of relevant evidence on the meaning of the term "comparable," the trial court cannot be faulted for its general instruction covering the term. Even if we were to conclude that the trial court should not have given the challenged instruction, we would nevertheless conclude that Sander/Moses was not prejudiced by such an error. Instructional error in a civil action requires reversal only "`where it seems probable' that the error `prejudicially affected the verdict.'" ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 ( Soule).) "The reviewing court should consider not only the nature of the error, `including its natural and probable effect on a party's ability to place his full case before the jury,' but the likelihood of actual prejudice as reflected in the individual trial record, taking into account `(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.'" ( Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.) Under this standard, Sander/Moses was not prejudiced by the challenged instruction. Sander/Moses does not contend that the challenged instruction impeded its ability to place its full case before the jury. That is because, as noted above, the instruction allowed each party to argue all the evidence in support of its respective interpretation of the term "comparable program." Sander/Moses instead contends that it was prejudiced by the instruction, primarily because it "made the definition of comparable license fee dependent" and thereby pointed "the jury towards only one party's view of the single contested issue in the phase of the case liability. . . ." Under the four-part test for determining the likelihood of actual prejudice from instructional error, as articulated in Soule, supra, 8 Cal.App.4th 548, Sander/Moses has failed to show that the challenged instruction was prejudicial. First, the state of the evidence militates against a finding of prejudice. Sander/Moses was allowed to put on evidence supporting the broad range of factors that it considered relevant to the comparability determination under the agreement. And Sander/Moses's opening brief details all of the evidence it had introduced in support of its broad interpretation of "comparable." Among other things, Sander was allowed to testify at length, as an expert, about the creative and other differences between Profiler and The Pretender, and to opine that the two shows were not comparable. Thus, Sander/Moses submitted evidence that it considered supported its interpretation of the "programs comparable" term. Second, other instructions served to minimize any prejudicial effects from the challenged instruction. For example, the jurors were instructed at the outset that they "must decide what the facts are" and that they "must consider all the evidence," and decide what happened. They were also told that they "must decide the facts based on the evidence" admitted in the trial. Those instructions, when combined with the portion of the challenged instruction expressly instructing them "to determine what is comparable," directed the jury to consider both parties' evidence on the issue. Third, the arguments of Sander/Moses's counsel further offset any potential prejudicial effects of the challenged instruction. Sander/Moses's counsel argued all of the evidence that had been introduced in support of its interpretation of the term "programs comparable," and urged the jury to accept it over NBC Studios's narrower interpretation. There is no indication in the record that the challenged instruction in any way limited or impaired the arguments made on Sander/Moses's behalf at trial. Fourth, there is nothing to suggest that the jury itself was misled by the instruction, or that it interpreted the instruction as Sander/Moses now does. During deliberations the jury asked only one question, and it was not about the meaning of the term "comparable" or the challenged instruction. In addition, if the jury had interpreted the instruction as a mandate to ignore all the evidence from Sander/Moses on the issue, there would have been little, if anything, upon which to deliberate. The record, however, shows that the jury spent slightly more than a day deliberating over the answer to question number one on the special verdict form that required the jurors to determine whether there were programs comparable to Profiler. Therefore, it does not appear from the record that the jury was misled by the challenged instruction. Finally, even if the trial court decided on the interpretation of the agreement, it was justified in doing so because there were no disputed factual issues regarding extrinsic evidence. Even though there might be conflicting inferences from the undisputed evidence, the issue of the meaning of "comparable" was one of law to be decided by the trial court. ( Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865; Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, fn. 3.) The trial court said at one point it would interpret the agreement, and yet it gave the jury the issue of the application of the term "comparable." To the extent the trial court did interpret the agreement, Sander/Moses has not shown that the court's interpretation was erroneous.
In its opening brief, Sander/Moses complains in a footnote about the trial court's ruling that excluded certain deposition testimony from the attorney who negotiated the agreement on behalf of NBC Studios. According to Sander/Moses, the attorney testified about a variety of factors to be used in determining whether a program was comparable, "including creative elements, time periods, airing time, viewership and star levels." Sander/Moses contends that deposition testimony was in direct conflict with the attorney's trial testimony. But Sander/Moses does not appeal from that ruling and, in fact, concedes that it was harmless error. In its reply brief, however, Sander/Moses again complains in a footnote that the trial court's ruling excluding the attorney's deposition testimony impeded its ability to place its entire case before the jury. The propriety of the trial court's ruling on the proffered deposition testimony is a separate issue from the propriety of the challenged jury instruction, and Sander/Moses has clearly forfeited appellate review of that evidentiary ruling.
E. The Granting of NBC Studios's Motion for Summary Adjudication of the Breach of Fiduciary Duty Cause of Action Was Not Prejudicial ErrorSander/Moses argues that the trial court committed prejudicial error when it summarily adjudicated the breach of fiduciary duty cause of action. According to Sander/Moses, there were sufficient facts in the record on the summary adjudication motion from which the trial court should have determined that NBC Studios owed fiduciary duties to Sander/Moses, and from which the trier of fact could have determined that NBC Studios breached those duties. We hold that even if there was error in summarily adjudicating the fiduciary duty claim, the error was not prejudicial. Before the trial court, Sander/Moses argued that NBC Studios owed it fiduciary duties based on a relationship akin to a joint venture that arose from the contract between them. Assuming, without determining, that the breach of fiduciary duty claim should not have been summarily adjudicated, Sander/Moses has not shown a miscarriage of justice that would result in a reversal. (Cal. Const., Art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 ["`[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"'"]; Soule, supra, 8 Cal.4th at p. 574 ["A judgment may not be reversed on appeal, even for error involving `misdirection of the jury,' unless . . . it appears the error caused a `miscarriage of justice'"].) As pled, Sander/Moses's fiduciary duty cause of action stated two distinct breaches — charging improper deductions against gross receipts so as to reduce improperly the adjusted gross upon which contingent compensation was calculated, and using an inapplicable contract limitation to calculate, and improperly limit, gross receipts. The issue of improper deductions had been in dispute at the time of the motion for summary adjudication. Ultimately, however, the parties removed that issue by stipulation, thus leaving only the issue of whether NBC Studios properly applied the "programs comparable" limitation in calculating gross receipts. Sander/Moses' claim that NBC Studios breached its fiduciary duty by, inter alia, understating income from Profiler was based on NBC Studio's use of The Pretender as a comparable program to limit the contingent compensation. Sander/Moses used this identical allegation as the basis of its breach of contract cause of action that was decided against it by the jury and by the trial court in denying the new trial motion. The jury determined, in effect, that NBC studios had correctly applied the "programs comparable" limitation that resulted in no contingent compensation being due. Thus, there could have been no breach of contract or breach of fiduciary duty arising out of NBC Studios's application of that limitation. Sander/Moses argues that a possible distinction between the breach of contract claim and breach of fiduciary duty claim might be in the allocation of the burden of proof for those claims. But Sander/Moses does not argue, and has not shown, that the different burdens of proof for breach of fiduciary duty and breach of contract claims would have made a difference with respect to the issue of the proper interpretation of the "programs comparable" limitation. (See Soule, supra, 8 Cal.4th at p. 580 [instructional error in a civil case warrants reversal only where it seems probable that the error prejudicially affected the verdict]; Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 985 [no prejudice from incorrect refusal of instruction shifting burden of proof to defendant because defendant's ability to put its full case before the jury was not impaired]; Sargent Fletcher, supra, 110 Cal.App.4th at pp. 1674-1675 [same].) That a different burden of proof would have had an effect seems unlikely because Sander/Moses had a full and fair opportunity to put its case before the jury, and there was little dispute about the evidence supporting the parties' respective theories on the application of the "programs comparable" limitation, as to which the jury rendered a unanimous verdict after deliberating for slightly more than a day. From the record, it appears that the parties presented the jury with two clear, but very different, alternatives concerning the proper application of the "programs comparable" limitation. As stated in Sargent Fletcher, "[i]t is highly unlikely that in such a complex case the jury would find the evidence in equipoise. Rather, it had to be persuaded one way or the other." ( Sargent Fletcher, supra, 110 Cal.App.4th at p. 1675.) As evidenced by the verdict, NBC Studios persuaded the jury that its application of the "programs comparable" limitation was proper, notwithstanding Sander/Moses' evidence and arguments in support of its theory. Accordingly, Sander/Moses has not shown that even if the trial court erred in granting summary adjudication as to the breach of fiduciary duty claim, such an error constituted a miscarriage of justice.
Although the erroneous granting of a motion for summary judgment, being "a denial of a fair trial," is reversible "because it `lies outside the curative provisions'" of the miscarriage of justice provision of the California Constitution ( Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 610), that principle should not apply to the situation here when the issue summarily adjudicated was, in effect, resolved by the jury in connection with another cause of action, and where the issue was later resolved by stipulation.
F. The Trial Court Did Not Abuse Its Discretion by Awarding NBC Studios Expert Fees Under Section 998Sander/Moses also contends that the trial court abused its discretion by awarding NBC Studios expert witness fees as a discretionary item of costs under section 998. We hold that the trial court did not abuse its discretion in awarding NBC Studios expert witness fees as a discretionary item of costs under section 998. We therefore affirm the judgment. After judgment was entered on the verdict, NBC Studios submitted a cost bill of $62,100.79 that included a request for expert witness fees under section 998. Sander/Moses moved to tax costs on the ground, inter alia, that NBC Studios's section 998 pre-trial offer — $1,000 and a waiver of costs — was not made in good faith. The trial court found that NBC Studios was entitled to recover its expert fees under section 998, and awarded it $23,575 in expert witness fees. Sander/Moses contends that NBC Studios's $1,000 offer under section 998 was nominal and not made in good faith. In support of its argument, it points to the disparity between NBC Studios's potential exposure — $1,413,122 — and the $1,000 offer. According to Sander/Moses, that disparity renders the offer unrealistic, and demonstrates that it was made solely to recover expert fees in the event NBC Studios prevailed at trial. As noted above, the review of this issue is governed by an abuse of discretion standard. ( Arno v. Helinet Corp., supra, 130 Cal.App.4th at p. 1025; Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1262.) "`Where . . . discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" ( Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.) "It is within the discretion of the trial judge to allow expert witness fees pursuant to section 998, based on failure of an offeree to obtain a more favorable judgment than the settlement offer. In exercising that discretion the trial court must evaluate whether defendant's offer was made in good faith and reasonable under the circumstances, and whether fees sought by the offeror are reasonable and justified in amount." ( Culbertson v. R.D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 711.) In the instant case, NBC Studios prevailed at trial. That result "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." ( Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1264.) Sander/Moses has not met its burden of establishing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. Sander/Moses's focus on the amount of the offer, and the disparity between it and NBC Studios's potential exposure, frames the issue too narrowly. The amount of the offer "is only one of the many factors to be taken into consideration by the trial judge in making his decision." ( Culbertson v. R.D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.) "Anything that may impact the reasonableness of a section 998 offer may be considered by the trial court." ( Arno v. Helinet, supra, 130 Cal.App.4th at p. 1026.) For example, the fact that the offer is substantially less than the amount of potential exposure does not render the offer unreasonable if the defendant had a substantial likelihood of prevailing at trial. ( Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 154.) Here, the trial court reviewed and ruled upon NBC Studios's motion for summary adjudication, and then presided over the jury trial. Thus, it was in the best position to evaluate the strength of Sander/Moses's case on liability. In ruling on the motion to tax costs, it found that both parties were experienced in the television production business and that they "knew, or should have known, that one-hour dramas such as Profiler do not make the profits necessary to pay contingent compensation until they are widely syndicated, which did not happen with Profiler. Furthermore, at the time the contract was negotiated, one-hour dramas were not paid the high license fee that [Sander/Moses] claimed for Profiler." Given the trial court's dim view of Sander/Moses's case on liability, it was not arbitrary, capricious, or patently absurd for it to conclude that NBC Studios's offer was realistic at the time it was made. This conclusion is underscored by the fact that the jury returned a unanimous verdict in favor of NBC Studios after only a little more than a day of deliberation. In addition, Sander/Moses's focus on the $1,000 amount of the section 998 offer ignores the fact that NBC Studios also offered to waive the costs to which it would be entitled as prevailing party. As the trial court noted, the costs claimed at trial were in excess of $60,000. In Jones v. Dumrichob, supra, 63 Cal.App.3d 1258, the defendant offered to allow judgment to be taken against him for a waiver of costs. ( Id. at p. 1261.) The plaintiffs rejected the offer and the case proceeded to jury trial. ( Ibid.) The jury returned a unanimous verdict in favor of the defendant, and the trial court awarded the defendant his costs, including expert witness fees under section 998. ( Ibid.) In rejecting the plaintiffs' argument on appeal that the section 998 offer was not made in good faith due to the lack of any monetary value, the court of appeal held that the defendant's "offer demonstrably did have significant monetary value. Appellants overlook the fact that in offering to have judgment entered against him, [the defendant] was also waiving his considerable cost bill against which [the plaintiffs'] likelihood of success in the case must have been weighed." ( Id. at p. 1263.) NBC Studios's recoverable costs were substantial. Although the exact amount could not have been known at the time the offer was made, Sander/Moses concedes at least $14,000 had accrued at the time of the offer, and it must have been aware that the ultimate amount NBC Studios was offering to waive would be in excess of that $14,000 amount. (See Carver v. Chevron U.S.A., Inc., supra, 97 Cal.App.4th at p. 154 ["Hindsight now shows that the value of the proposed waiver of costs and fees was considerable, and it was no secret at any time that Chevron hired expensive lawyers who were expected to pursue all available avenues of defense. That they might eventually be successful was reasonably foreseeable as of the time the offer was made"].) At the time of the section 998 offer, it was reasonably foreseeable that NBC Studios would retain one or more experts to testify at trial and that it would incur other substantial costs that would be recoverable from Sander/Moses if NBC Studios prevailed at trial. Indeed, given the timing of the offer (i.e., one month before trial), Sander/Moses was well positioned to estimate its potential exposure for costs, including expert fees. Based on these facts, the trial court did not abuse its discretion in finding that NBC Studios's section 998 offer was, under the circumstances, made in good faith.
Section 998, subdivision (c) provides: "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 part, 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."
IV. DISPOSITION
The judgment of the trial court is affirmed. NBC Studios is awarded its costs on appeal.Turner, P. J., and Kriegler, J., concurred.
A petition for a rehearing was denied October 11, 2006, and appellant's petition for review by the Supreme Court was denied November 29, 2006, S147508.