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Derrick Millsaps v. Doehrman Company

April 11, 2011

DERRICK MILLSAPS, PLAINTIFF AND APPELLANT,
v.
DOEHRMAN COMPANY, INC., DEFENDANT AND RESPONDENT.



(Super. Ct. No. 124942)

The opinion of the court was delivered by: Butz , J.

Millsaps v. Doehrman

Co. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

Plaintiff Derrick Millsaps appeals from a 2010 postjudgment order granting nearly $40,000 in costs, including expert witness fees, to defendant Doehrman Company, Inc. (Doehrman). (Code Civ. Proc., § 998.)*fn1 The order represents the finalization of a February 2007 ruling by the trial court in which it granted, in part, motions to tax costs by Millsaps and plaintiff in intervention Pep Boys, Inc. (Pep Boys; collectively, plaintiffs).

On appeal, Millsaps contends Doehrman should be precluded under theories of waiver or estoppel from collecting these costs, given the inexplicable three-year delay in reducing the ruling to an order adding costs to the judgment. He also contends the section 998 offer made by Doehrman was invalid and should not have been the basis for any posttrial award of expert witness fees. We disagree and shall affirm the order.

FACTUAL BACKGROUND

This case arises out of injuries to Millsaps, an employee of Pep Boys, caused by a malfunctioning piece of equipment. Millsaps sued Doehrman for negligent installation of the equipment. Pep Boys, a self-insured employer, had paid workers' compensation benefits to Millsaps, and brought a complaint in intervention to recover those benefits.

Doehrman made a pretrial offer to compromise to Millsaps pursuant to section 998. It offered to pay Millsaps $50,000, in exchange for (among other things) Millsaps' dismissal of the action against Doehrman, and his "agree[ment] to indemnify and hold harmless DOEHRMAN COMPANY, INC. from any and all claims or liens asserted by intervenor PEP BOYS, INC."

The action proceeded to jury trial in 2006; Doehrman prevailed after a jury found it did not install the equipment that caused Millsaps' injury. Judgment was entered in Doehrman's favor on November 3, 2006.

2007: Ruling on Plaintiffs' Motions to Tax Costs

Doehrman filed a timely memorandum of costs in which it sought $50,000 in costs, including expert witness fees. Plaintiffs Millsaps and Pep Boys moved separately to strike and/or tax costs. In his motion, Millsaps argued (among other things) that Doehrman's section 998 offer was "defective" because it was "conditioned upon compromising the claims of the intervenor, and is in fact, an offer made to two parties" ...


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