APPEAL from a judgment of the Superior Court of Tulare County. (Super. Ct. No. VCU228251) Lloyd L. Hicks, Judge.
The opinion of the court was delivered by: Kane, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In this personal injury case arising out of an automobile-versus-motorcycle traffic collision, the jury found that defendant Irene Huerta was the sole negligent cause of the accident and awarded plaintiff Frankie Najera total damages of $728,703.83. According to the verdict form, the damages consisted of past medical expenses ($45,908.83), past wage loss ($12,540), future medical expenses ($480,855), future wage loss ($114,400) and future pain and suffering ($75,000). After judgment was entered on the verdict, defendant moved for a new trial on two grounds: (i) the award of future damages was excessive, and (ii) plaintiff's counsel engaged in improper conduct during trial. The trial court agreed that relief was warranted on the first ground and granted a new trial on the issue of future damages only. Meanwhile, in his memorandum of costs, plaintiff claimed entitlement to expert witness fees and prejudgment interest because defendant had allegedly failed to accept plaintiff's Code of Civil Procedure section 998 offer of settlement (section 998 offer).*fn2 Defendant moved to tax said costs, arguing that plaintiff's section 998 offer--which was served at the time of the original summons and complaint--was not made in good faith. The trial court granted defendant's motion and thereby denied recovery of the challenged costs.
Plaintiff appeals from both the order granting a new trial and the order taxing costs, arguing that each ruling constituted an abuse of the trial court's discretion. Defendant's response includes a protective cross-appeal contending that if the order granting a new trial on the ground of excessive damages is not affirmed, a new trial should still be required on the alternative basis of attorney misconduct. For reasons that follow, we affirm both of the trial court's orders and dismiss the cross-appeal as moot.
FACTS AND PROCEDURAL HISTORY
On November 9, 2007, defendant was driving her van westbound on Avenue 256 in Tulare County. She came to a complete stop at the stop sign where Avenue 256 intersects with Mooney Boulevard. At that location, Mooney Boulevard is a north/south highway on which the flow of traffic is not controlled by a stop sign or signal and the speed limit is 60 miles per hour. Defendant looked both to her right and left before proceeding into the intersection to make an intended left turn onto Mooney Boulevard. Unfortunately, defendant did not see plaintiff's motorcycle in the northbound lanes of Mooney Boulevard approaching the intersection at a speed of 55-60 miles per hour. When defendant pulled forward, she did so directly in front of plaintiff's oncoming motorcycle. Plaintiff's motorcycle immediately struck defendant's van and plaintiff was ejected into the air and thrown forward onto the pavement, thereby sustaining traumatic injuries to many parts of his body.
B. Facts Relating to Offer to Compromise
On April 28, 2008, plaintiff's attorney made a prelitigation policy limit demand on defendant's insurance carrier, State Farm Mutual Automobile Insurance Company (State Farm). The demand included a summary of plaintiff's injuries, medical bills to date, and alleged lost earnings. State Farm requested further information about certain of the damages claimed in the demand (i.e., lost earnings), but plaintiff's attorney never responded to that request. Instead, plaintiff's complaint was filed in Tulare County Superior Court on May 28, 2008.
On June 9, 2008, defendant was served with the summons and complaint, along with a section 998 offer to settle or compromise the action for the sum of $50,000. Defendant delivered the pleadings and other documents to State Farm, who then assigned the case to Attorney Bruce Berger to provide a defense. Mr. Berger's office purports to have received the file from State Farm on June 26, 2008. Mr. Berger was at that time preparing for another trial and had an associate draft and file a general denial to answer the complaint. When Mr. Berger completed the other trial, he learned of the section 998 offer and sent a letter to plaintiff's counsel objecting that the offer was premature and not in good faith because there had been insufficient opportunity to review medical records and conduct basic discovery in order to substantiate plaintiff's damage claims. Mr. Berger's letter also stated it was his understanding that plaintiff's law firm had a policy to not extend the 30-day deadline for accepting a section 998 offer. Attorney John Malmo, a member of plaintiff's law firm, responded in writing that the section 998 offer was in good faith in light of the earlier policy limit demand that had been sent to State Farm. Mr. Malmo did not deny or otherwise comment on whether his firm had a no extension policy. In reply, Mr. Berger once again wrote to register his objection to the practice of serving section 998 offers before there was adequate time to conduct discovery and independently investigate and evaluate a case.
Trial of this action commenced on May 18, 2009, and concluded on May 28, 2009, when the jury announced its verdict. A majority of the testimony at trial concerned the nature of plaintiff's injuries sustained in the accident, and the issue of what past and/or future medical treatment was reasonably necessary as a result of such injuries, including the cost of such medical treatment. Plaintiff called as his expert witnesses a chiropractor and three medical doctors. Defendant's expert witness was a board certified orthopedic surgeon. The respective experts were diametrically opposed on certain important questions relating to future medical treatment, in particular whether surgeries were warranted on plaintiff's neck, back, wrist, knee and ankle as a result of the injuries sustained in the accident. The jury found in favor of plaintiff and awarded him $728,703.83 in total damages. The verdict itemized the damages as follows: $45,908.83 for past medical expenses; $12,540 for past wage loss; $480,855 for future medical expenses; $114,400 for future wage loss; and $75,000 for future pain and suffering. The jury awarded nothing ("$0.00") for past pain and suffering. Judgment was entered on the verdict on July 2, 2009.
Defendant moved for a new trial. The two primary grounds raised by defendant for seeking a new trial were as follows: (1) the future damages awarded by the jury were excessive or the amount thereof was not justified by the evidence (§ 657, subds. 5 & 6); and (2) irregularity of the proceedings in the form of misconduct by plaintiff's attorney prevented defendant from having a fair trial (§ 657, subd. 1). In support of the first ground, defendant's motion compared the testimony of the medical experts for plaintiff and defendant, and argued that the credibility of plaintiff's medical experts was lacking and was far outweighed by that of defendant's medical expert in regard to future medical damages. In support of the second ground, defendant's motion pointed out numerous instances of alleged attorney misconduct on the part of plaintiff's counsel, including such things as allegedly asserting facts not in evidence, making improper arguments and making inflammatory and unfounded accusations against witnesses or opposing counsel. According to defendant's motion, such misconduct was prejudicial to defendant's case as evidenced by the excessively high verdict.
On August 27, 2009, the trial court issued its order granting a new trial on the ground that the jury's award of future damages was excessive. The grant of a new trial of future damages was made conditional on plaintiff declining to accept a reduced damage award of $133,448.83.*fn4 The trial court's order recited reasons for concluding that the future damages were excessive; namely, the testimony of plaintiff's medical experts regarding the need for future surgeries and other future medical treatment was not credible, while in contrast the testimony of defendant's medical expert on these points was both reasonable and credible, including the opinion that no surgeries would be necessary. It therefore appeared to the trial court that the jury's determination of future damages was clearly excessive, and thus a new trial of future damages was warranted. The trial court expressly denied the alternative ground for defendant's motion; namely, that of alleged attorney misconduct on the part of plaintiff's counsel.
In a second posttrial motion, defendant moved to tax (or strike) certain costs that were claimed by plaintiff in the memorandum of costs. Specifically, defendant challenged plaintiff's claim of entitlement to expert witness fees ($19,500) and prejudgment interest ($72,870.38). Plaintiff had alleged that such costs were recoverable under the provisions of section 998 (& Civ. Code, § 3291), because defendant failed to accept a section 998 offer to compromise the action within 30 days after service thereof and plaintiff thereafter obtained a damage award that exceeded the amount of the offer. Defendant's motion to tax costs argued that plaintiff should not be awarded such costs because plaintiff's section 998 offer was not made in good faith since it was served with the summons and complaint ...