Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. S-1500-CV-265123, William D. Palmer, Judge.
Law Offices of John C. Hall and John C. Hall for Plaintiff and Appellant.
Wall, Wall & Peake, Larry F. Peake; McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Defendant and Respondent.
OPINION
CORNELL, J.
Appellant Lora Faye Warfield was injured in an automobile accident when the vehicle she was driving was rear ended by the vehicle driven by respondent Susan Carol Chandler. Warfield appeals from a jury verdict in her favor, presenting two arguments to this court. Her first contention is that the jury awarded insufficient damages. We disagree and conclude the award was supported by substantial evidence.
Warfield’s second argument concerns the costs awarded after judgment was entered. Warfield rejected a Code of Civil Procedure section 998 offer that exceeded the award she ultimately received from the jury. Pursuant to that statute, when a plaintiff rejects a section 998 offer and obtains a less favorable judgment, the plaintiff may not recover costs incurred after the offer was made, and the defendant may recover costs incurred after the offer was made (postoffer costs). (Id., subd. (c)(1).)
All further statutory references are to Code of Civil Procedure unless other stated.
The trial court first determined that Warfield was the prevailing party pursuant to section 1032, subdivision (a)(4) because she obtained a net monetary recovery and concluded she was entitled to recover costs incurred before the section 998 offer was made (preoffer costs). (§ 1032, subd. (b).) The trial court then applied section 998, subdivision (c)(1) and awarded Chandler her postoffer costs and disallowed Warfield any postoffer costs. The primary dispute in this case was the extent of injury suffered by Warfield as a result of the accident. Numerous medical experts were retained and extensive medical records were obtained and reviewed. The result was that the postoffer costs incurred by Chandler exceeded the total of the judgment in Warfield’s favor and the preoffer costs she incurred.
When faced with this rather unusual situation, the trial court concluded that Chandler was the prevailing party pursuant to section 1032, subdivision (a)(4) because she now had the net monetary recovery. The trial court then awarded preoffer costs to Chandler pursuant to section 1032, subdivision (b). Warfield argues the trial court’s interpretation of these statutes was erroneous. While we agree with Warfield, we will not reverse the orders awarding Chandler costs because Warfield failed to appeal from those orders.
FACTUAL AND PROCEDURAL SUMMARY
Warfield was stopped at a traffic light when her vehicle was rear ended by the vehicle Chandler was driving. The impact pushed Warfield’s vehicle forward until it struck the vehicle in front of it. Chandler testified that her vehicle was traveling no more than 10 to 15 miles per hour at the time of impact. The air bags did not deploy in either Chandler’s or Warfield’s vehicle.
Although shaken, Warfield initially did not believe she had sustained any significant injuries. Over the next few days, however, she developed pain in her neck. She visited her physician approximately two weeks after the accident. After conducting an examination, her physician ordered radiologic studies and referred Warfield to a specialist. The specialist discovered that Warfield, who was 70 at the time of the accident, was suffering from degenerative disk disease in her neck that must have been present long before the accident, but apparently was asymptomatic. In addition, the specialist observed a soft tissue injury in the lower area of Warfield’s neck, which he attributed to the accident. The specialist prescribed a neck collar and physical therapy and advised Warfield that if her symptoms did not improve, her options included surgery or a series of epidural injections.
It appears Warfield’s attorney believed he could convince the jury to award Warfield compensation for the proposed surgery (in excess of $50,000) or a series of epidural injections that would be repeated on a regular basis for the remainder of Warfield’s life span (in excess of $20,000). Trial counsel asked the jury to award damages in excess of $100,000.
The jury did not accept trial counsel’s theory and awarded Warfield past economic damages of $2,894.16, future economic damages of $5,000, and past noneconomic damages of $5,000, for a total judgment of $12,894.16. The trial court subsequently ordered costs as set forth in the introduction.
Warfield filed her notice of appeal from the judgment on November 16, 2009. The trial court’s order on costs that Warfield contends was erroneous was entered on April 15, 2010, and was not appealed.
DISCUSSION
I. Inconsistent Verdict
Warfield argues the verdict was insufficient to compensate her for her injuries. She phrases the argument as one of an inconsistent verdict, i.e., the verdict was inconsistent and required trial court intervention. The trial court rejected this argument when it denied Warfield’s motion for a new trial based on the same theory. We also reject the argument for two reasons.
First, Warfield has failed to provide relevant citations to the evidence in the record to support the argument. It is the appellant’s obligation to provide citations to the record and to authority to support his or her arguments. (Cal. Rules of Court, rule 8.204(a)(1)(C).) It is not our responsibility to comb the appellate record for facts or to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Second, we reject the argument on the merits. We have reviewed the record in its entirety and note that the issue of damages was contested. Warfield’s retained expert witness provided the only favorable testimony in support of the claimed damages. This included Warfield’s testimony. The testimony of two witnesses exemplifies our point.
Warfield testified that prior to the accident she never had any problems with her neck and that the pain in her neck developed shortly after the accident. First she visited her primary care physician, who referred her to Dr. Firooz Amjadi, who specializes in issues with the spine. According to Warfield, Amjadi told her that her pain would not improve without surgery. He also told her she could attempt to manage her pain with an epidural injection.
She wore a neck brace and attended physical therapy. She asserted that her pain had not improved in the almost two years since the accident. She was, however, able to do the things she did before the accident, but not “as vigorously.” She had not had surgery or the epidural injections because she was concerned about the pain and the risks. Nor had she returned to see Amjadi because she knew her options. The last neck-related treatment was 17 months before the trial. She had not scheduled further treatment for her neck.
Amjadi confirmed that Warfield had substantial degenerative changes to her neck that were unrelated to the accident. When Amjadi first saw Warfield, she had a 20 percent restriction in moving her neck, which was consistent with the degenerative changes in her neck. After the examination, Amjadi recommended that Warfield immobilize her neck with a collar to allow the cervical strain to heal. The strain was consistent with a motor vehicle accident, but the degenerative condition was unrelated.
At the second visit, two weeks later, Warfield reported her symptoms had improved significantly. Two months later, Amjadi examined Warfield. At this visit she had a 40 percent reduction in range of motion in her neck, which Amjadi felt was caused by wearing the neck brace and the degenerative changes in her neck. Warfield again reported significant improvement. Physical therapy was ordered. By the last visit, five months after the accident, Amjadi expected the strain to have resolved. Warfield was still reporting pain, and Amjadi told her that epidural injections into the neck were an option.
Amjadi testified that surgery would not be required for the strain, but might be required for the degenerative condition in her neck. He also testified that the residual pain Warfield was experiencing could not be attributed to the accident. He opined the strain was doing well and any further treatment would be related to the degenerative condition in her neck.
From this testimony the jury reasonably could have concluded that in the future Warfield would not have surgery or the epidural injections, the two procedures on which her damage claim was based. Warfield admitted that she had not made any plans to pursue either course of treatment, but that they were merely options. Amjadi established it was likely that Warfield’s continued pain was caused by the degenerative condition in her neck and was not the result of her motor vehicle accident. On this testimony alone, the jury could have rejected all claims of future damages. We therefore reject Warfield’s argument that the verdict was not supported by substantial evidence.
Warfield’s primary argument appears to be that the verdict was inconsistent and thus cannot stand. She theorizes that because the jury awarded her damages for future medical expenses, it must have concluded that the continued pain she was experiencing was related to the accident. Therefore, according to Warfield, the jury also was required to award her damages for future pain and suffering. The failure to do so resulted in an inconsistent verdict.
An inconsistent verdict occurs when the trier of fact makes inconsistent determinations of fact based on the same evidence. (Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 101.) In Cavallaro, the inconsistent verdict rule was applied to reverse the judgment because the jury found one defendant liable to plaintiff for damages but found a second defendant not liable, even though their liability was based on the same set of facts. Obviously, that is not the case here.
A more analogous case is Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, 883, where the appellate court held that a verdict that awarded the plaintiff damages for lost wages and medical bills, but did not award any compensation for pain and suffering, was inadequate as a matter of law.
Similar is Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931 (Dodson), the case on which Warfield places primary reliance. Dodson was injured as the result of the defendant’s negligence. Dodson was diagnosed with degenerative disease of the neck, a central disk rupture, compression of the spinal cord, spinal cord signal changes, and quadriparesis (weakness in the extremities as a result of a spinal cord injury). Surgery was conducted to remove the herniated disk and arthritic joints and a metallic plate was inserted. (Id. at p. 934.)
At trial, Dodson’s expert opined that Dodson suffered a spinal cord injury as a result of the accident, and the surgery was the necessary result. The defendant’s experts testified that the accident did not cause the herniated disk and, if it had, Dodson’s symptoms would have been instantaneous, instead of increasing over time. (Dodson, supra, 154 Cal.App.4th at p. 934.)
The jury found the defendant was negligent, and its negligence caused Dodson’s injuries. Nonetheless, the jury awarded Dodson damages for his medical expenses, but no compensation for noneconomic injury or pain and suffering. The appellate court relied on the following rule to reverse the judgment and order a new trial on damages. “The controlling rule, we believe, was best stated in Miller [v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555], which affirmed a jury verdict that made no allowance for pain and suffering. Miller distilled this principle from the precedents it reviewed: Cases finding an award inadequate for failure to account for pain and suffering ‘involve[] situations where the right to recover was established and … there was also proof that the medical expenses were incurred because of defendant’s negligent act.’ [Citation.] In such situations, Miller concluded, ‘[i]t is of course clear that … a judgment for no more than the actual medical expenses occasioned by the tort would be inadequate.’ [Citation.] On the other hand, a verdict may properly be rendered for an amount less than or equal to medical expenses in cases where, ‘even though liability be established, a jury may conclude that medical expenses paid were not occasioned by the fault of the defendants.’ [Citations.]” (Dodson, supra, 154 Cal.App.4th at pp. 936-937, fn. omitted.)
The appellate court concluded that these principles compelled the conclusion that the damages were inadequate as a matter of law. “[T]he factual conflicts that Miller and Haskins [v. Holmes (1967) 252 Cal.App.2d 580] tell us may justify the jury’s failure to award non-economic damages—whether the plaintiff received any substantial injury or suffered any substantial pain; whether medical treatment was actually given or was given as a result of the injuries; and whether the medical treatment was reasonable or necessary—were resolved by the jury in its special verdict. In Dodson’s case, we know—because the jury expressly decided—that [the defendant’s] negligence was a cause of Dodson’s injury, and that Dodson suffered economic damages ‘caused by the accident.…’ We know that he underwent surgery in which a herniated disc was removed and replaced with a metallic plate. We know the jury awarded damages, at least in part, for Dodson’s surgical expenses. A plaintiff who is subjected to a serious surgical procedure must necessarily have endured at least some pain and suffering in connection with the surgery. While the extent of the plaintiff’s pain and suffering is for the jury to decide, common experience tells us it cannot be zero.” (Dodson, supra, 154 Cal.Ap.4th at pp. 937-938, fns. omitted.) The appellate court’s holding, however, was very limited: “We hold that where a plaintiff had undergone surgery in which a herniated disc is removed and a metallic plated inserted, and the jury has expressly found that defendant’s negligence was a cause of plaintiff’s injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.” (Id. at p. 933.)
We agree with Dodson’s holding when the issue is the adequacy of noneconomic damages. Dodson, however, is distinguishable for several reasons. First, Dodson concluded that a verdict was inconsistent because it did not award any damages for past pain and suffering, even though the jury found the defendant’s negligence caused plaintiff’s injury and awarded him past medical expenses for a serious operation necessitated by the accident. Here, Warfield was awarded compensation for future medical expenses that have not been, and perhaps never will be, incurred. It is not incongruous to conclude that while future medical expenses may be incurred as a result of the accident, there may not be any pain and suffering directly associated with those future medical expenses (tests, medical imaging, etc.).
Second, the two cases are factually distinguishable. Dodson was hospitalized, underwent serious surgery, and used a walker for some time. Here, Warfield wore a neck brace and received physical therapy treatments for a period of time, after which her treating physician opined that her injury had resolved. It is well established “that an award that does not account for pain and suffering is ‘not necessarily inadequate as a matter of law’ [citation], and that ‘[e]very case depends upon the facts involved.’ [Citation.]” (Dodson, supra, 154 Cal.App.4th at p. 936.) The facts of this case do not lead to the inescapable conclusion that the jury was required to award damages for future pain and suffering simply because it awarded damages for future medical expenses.
Warfield is arguing that since the jury awarded $5,000 in future medical expenses, it also was required to award future noneconomic damages. As Warfield’s counsel admitted at oral argument, no court ever has ruled so. We decline to do so here. The jury reasonably could have concluded that while there may have been some future medical treatment required as a result of the accident, it also reasonably could have concluded that any pain and suffering that Warfield would suffer in the future was the result of her degenerative neck disease, and this pain and suffering was unrelated to the accident. It is unclear exactly what type of treatment the jury was considering. While we understand Warfield is disappointed with the total award, considering its findings, the jury would have been justified in awarding no future damages.
Accordingly, we conclude there was no error in the jury award or in the trial court’s rejection of Warfield’s motion for a new trial.
II. Costs
Procedural summary
After judgment was entered in favor of Warfield in the amount of $12,894.16, Warfield filed a memorandum of costs seeking recovery of $4,102.76. In response, Chandler filed an opposition to the memorandum of costs and a motion to strike costs. She also filed her own memorandum of costs.
Chandler asserted that Warfield should not be awarded costs for two reasons. First, Warfield had rejected a section 998 offer in the amount of $25,000. Since the judgment was less than that amount, Chandler argued that Warfield was not entitled to any costs. Chandler theorized that if the judgment was added to the costs sought by Warfield, the total would not exceed the section 998 offer she had made. Therefore, according to Chandler, Warfield was not entitled to recover any costs and Chandler should recover all of her costs. No authority was cited for this proposition.
Second, Chandler argued that since the judgment could have been rendered in a limited civil case, the trial court should not award Warfield any costs. Chandler cited section 1033, subdivision (a) for this proposition. This section provides the trial court with discretion to refuse to award a prevailing plaintiff costs when the judgment could have been rendered in a court of limited jurisdiction.
Section 1033, subdivision (a) states: “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”
The trial court properly resolved the issues presented by the parties. It recognized that section 998 provides, in a case such as this, where the defendant made a pretrial offer to plaintiff that was refused, and the subsequent judgment was less than the defendant’s section 998 offer, the plaintiff was entitled to recover his or her preoffer costs, and the defendant was entitled to recover his or her postoffer costs. The trial court awarded Chandler postoffer costs of $17,432.80. It also appears, although the record is unclear, that the trial court awarded Warfield her preoffer costs.
After setting off the judgment and the costs awarded to Warfield against the costs awarded to Chandler, the trial court determined that the net judgment was an award of $3,728.64 to Chandler. The trial court then invited Chandler to file a motion for her preoffer costs: “Any further claim by defendant to be addressed by properly noticed motion.…” (Capitalization omitted.)
Following the trial court’s lead, Chandler filed a motion to be declared the prevailing party in the litigation pursuant to section 1032, subdivision (a)(4) as the party with the net monetary judgment. Warfield opposed the motion. After the hearing, the trial court ruled that Chandler was the prevailing party pursuant to section 1032, subdivision (a)(4) and awarded her preoffer costs in the amount of $7,614.11, for a total award in her favor of $11,342.75. The trial court, also noting there was no case law on this issue, suggested that Warfield seek appellate review of the issue.
Analysis
First, Chandler correctly points out that Warfield failed to file a notice of appeal from the postjudgment order, and therefore this court is without jurisdiction to decide the issue. (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172.) Warfield filed her notice of appeal before the trial court issued the order concluding that Chandler was the prevailing party. The notice of appeal filed by Warfield is from the judgment only. The proper procedure is to file a notice of appeal from the postjudgment order. (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.) Therefore, we are without jurisdiction to hear the matter. (Ibid.)
Nonetheless, we will address the issue because the trial court clearly erred and, if for no other reason, our discussion may preclude repetition of the error.
The issue is clear, if not easily stated. May the trial court determine which party prevailed in the action pursuant to section 1032 after it has apportioned costs pursuant to section 998? As we shall explain, the answer also is clear. The trial court abused its discretion by proceeding in a fashion not permitted by statute.
The application of section 998 to facts that are not in dispute presents a question of law that we review de novo. (Berg v. Darden (2004) 120 Cal.App.4th 721, 726.) The right to recover costs is derived solely from statutes; in the absence of statutory authority, each party must pay for his or her own costs. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439.) In a case such as this, where we are required to interpret a statute, we apply well-settled rules. “In interpreting a statute, our primary goal is to determine and give effect to the underlying purpose of the law. [Citation.] ‘Our first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning.’ [Citation.] ‘“If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”’ [Citation.] In other words, we are not free to ‘give the words an effect different from the plain and direct import of the terms used.’ [Citations.] However, ‘“the ‘plain meaning’ rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.”’ [Citation.] To determine the most reasonable interpretation of a statute, we look to its legislative history and background. [Citation.]” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 (Goodman).)
The general rule allowing recovery of costs is found in section 1032. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1439; see also Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108 (Scott Co.) [“Section 1032 is the fundamental authority for awarding costs in civil actions”].) As pertinent here, section 1032 defines the prevailing party as the party with the net monetary recovery (id., subd. (a)(4)) and requires the trial court to award costs to the prevailing party in any action or proceeding, “except as otherwise expressly provided by statute.” (Id., subd. (b).)
“Section 998 modifies the general rule of section 1032.…” (Scott Co., supra, 20 Cal.4th at p. 1112.) This conclusion is apparent from the statute itself. Section 998, subdivision (a) states, “The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.” (Italics added.) We need not resort to rules of statutory construction to interpret this section. It states in plain, clear, and concise language that section 998 will either augment costs otherwise awarded by section 1032 or will operate to withhold costs otherwise awarded by section 1032. In other words, “‘section 998 establishes a procedure for shifting the costs upon a party’s refusal to settle’” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 128) by “expand[ing] the number and type of recoverable costs and fees over and above those permitted by section 1032[, subdivision] (b).” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000.)
The only logical method to implement this requirement is first to determine the prevailing party and then apply section 998. The method utilized by the trial court, determining the prevailing party after applying section 998, is contrary to the plain meaning of section 998, subdivision (a).
Augmentation, or a recovery greater than normally allowed, occurs if the prevailing party made a section 998 offer and then obtained a more favorable judgment. For example, if Warfield had made a section 998 offer and obtained a more favorable judgment, in addition to costs recoverable under section 1032, she would have been entitled to recover interest from the date of the offer (Civ. Code, § 3291), and the trial court would have discretion to award her postoffer expert witness fees (Code Civ. Proc., § 998, subd. (d)). Withholding of costs, or prohibiting recovery of costs normally recoverable, occurs in a case such as this, where the plaintiff rejects an offer by the defendant and then obtains a judgment in his or her favor, but in an amount less than that offered by the defendant in his or her section 998 offer. The plaintiff’s postoffer costs are withheld. (§ 998, subd. (c)(1).) In addition, the costs recoverable by the defendant are augmented because he or she may now recover postoffer costs, and the trial court has discretion to award the defendant postoffer expert witness costs. (Ibid.)
Augment is defined as “To make (something already developed or well under way) greater, as in size, extent, or quantity.” (American Heritage Dict. of the English Language (4th ed. 2006) at p. 118.)
Withhold is defined as “To refrain from giving, granting, or permitting.” (American Heritage Dict. of the English Language, supra, at p. 1976.)
Moreover, the procedure utilized by the trial court violates Supreme Court precedent, which we and the trial court may not do. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In Scott Co., the Supreme Court held that when a plaintiff rejects a defendant’s section 998 offer and then obtains a less favorable result at trial, the plaintiff is still entitled to recover his or her preoffer costs. (Scott Co., supra, 20 Cal.4th at pp. 1111-1112.) The procedure utilized by the trial court resulted in Warfield being denied her preoffer costs because she no longer was the prevailing party in the litigation.
The trial court concluded that after the augmenting and withholding procedure required by section 998, it should return to section 1032 and redetermine the prevailing party under that statute. The trial court could not cite any authority for this procedure. Nor has our research or that of the parties located any case that suggests such a procedure is proper. We presume the reason for the lack of statutory authority is the result of the plain language of the statutes.
Sections 1032 and 998 require the trial court to follow a simple two-step procedure. First, the trial court must determine the prevailing party utilizing the general rule of section 1032 and determine the recoverable costs as permitted by section 1033.5. Second, the trial court must then augment or withhold the amount determined in step one pursuant to the dictates of section 998. After these two steps are completed, the trial court’s cost award is complete.
This conclusion is compelled not only by the plain language of the statutes, but also by the history of the statutes. As early as 1995, section 998, subdivision (c), which addresses cases where the plaintiff rejects a defendant’s section 998 offer and then does not obtain a more favorable result, gave the trial court discretion to award costs from the inception of the action. In 1997, however, the Legislature rewrote subdivision (c) and eliminated this discretion. (Stats. 1997, ch. 892, § 1.) Nor was such discretion added to any other portion of section 998 or any other statute. The 1998 version of section 998, subdivision (c) was substantially similar to the current version. When the trial court awarded Chandler her preoffer costs, it exercised a power that the Legislature had eliminated. Since all costs awards are permissible only by statute, this result cannot stand. The trial court does not have the authority to award a defendant preoffer costs pursuant to section 998, subdivision (c).
In 1995, section 998, subdivision (c) stated: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff shall not recover his or her costs and shall pay the defendant’s costs from the time of the offer. For purposes of this section, a plaintiff in a cause of action not based on tort shall not be deemed to have obtained a more favorable judgment unless the judgment obtained by the plaintiff, exclusive of attorney’s fees and costs, exceeds the offer made by the defendant pursuant to this section.”
In 1998, after amendment, section 998, subdivision (c)(1) read: “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 the costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in preparation for trial or arbitration of the case by the defendant.”
Chandler argues the trial court has authority to award a defendant its preoffer costs pursuant to section 1032, subdivision (a)(4). In making her argument, Chandler ignores the following: (1) cost awards are permissible only if allowed by statute; (2) the Legislature eliminated this discretion when it rewrote section 998, subdivision (c) in 1997; and (3) the language of the relevant statutes is inconsistent with such an award.
Nor has Chandler cited any cases that support her argument. The only case cited by Chandler in the trial court was Wakefield v. Bohlin (2006) 145 Cal.App.4th 963 (Wakefield). The proposition in Wakefield on which Chandler relied specifically was rejected in Goodman, supra, 47 Cal.4th 1327. Undeterred, Chandler now argues that Goodman supports her argument. We are not persuaded.
The issue presented in Goodman and Wakefield is distinct from the issue presented in this case. In Goodman, the plaintiffs purchased a newly constructed house from defendants. Plaintiffs sued defendants, the contractor, the architect, and the real estate broker under various theories alleging the house was defective. By the time of trial, the plaintiffs had settled with all parties, except the defendants, for a total of $230,000. The trial court found these settlements were made in good faith. After the settlements were reached, the defendants made an offer pursuant to section 998 in the amount of $35,000, which plaintiffs rejected. The plaintiffs prevailed at the bench trial, but obtained only a “‘total damage award’ of … $146,000.” (Goodman, supra, 47 Cal.4th at p. 1331.) After the trial court determined the plaintiffs’ damages, it was informed of the settlements reached before trial. Since the settlements exceeded the damages determined by the trial court, it concluded that section 877 required the damages be reduced by the pretrial settlements and ordered that the plaintiffs recover nothing. The trial court then determined the defendants were the prevailing parties and awarded them costs. (Goodman, at p. 1331.)
The plaintiffs appealed, arguing that because the trial court concluded that they had suffered damages of $146,000, they were the prevailing parties pursuant to section 1032, subdivision (a)(4), notwithstanding the pretrial settlements (the result reached in Wakefield). The issue determined by the Supreme Court, therefore, was whether the term “net monetary recovery” as used in section 1032, subdivision (a)(4), should be interpreted to include offsets for pretrial settlements or to exclude pretrial settlements. The Supreme Court concluded that the term meant exactly what it said -- a plaintiff’s net monetary recovery was the award it received after all deductions and offsets. (Goodman, supra, 47 Cal.4th at pp. 1333-1334.)
While the defendants in Goodman made an offer pursuant to section 998, the issue addressed by the Supreme Court was the definition of the term “net monetary recovery” in section 1032, subdivision (a)(4) when there were pretrial settlements. In other words, the issue was whether offsets that existed before the trial court determines which party prevailed should be taken into account when making that determination.
Goodman is inapposite here for two reasons. First, the issue in this case is not offsets, but the effect of the augmenting or withholding of costs (i.e., adding costs not normally recoverable or subtracting costs normally recoverable) pursuant to section 998. Second, as explained above, costs can be augmented or withheld only after the prevailing party has been determined. Therefore, Goodman does not provide any support for Chandler’s argument.
DISPOSITION
The judgment is affirmed. Costs are awarded to Chandler.
WE CONCUR: LEVY, Acting P.J., FRANSON, J.