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Nasseem Farag et al v. Arvinmeritor

April 24, 2012

NASSEEM FARAG ET AL., PLAINTIFFS AND APPELLANTS,
v.
ARVINMERITOR, INC., DEFENDANT AND RESPONDENT.



(Los Angeles County Super. Ct. No. BC431525) APPEAL from a post-judgment order of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

Plaintiffs and appellants Nasseem Farag (Nasseem) and Sanna Farag (Sanna) (collectively, the Farags) appeal a post-judgment order denying their motion to tax expert witness costs sought by defendant and respondent ArvinMeritor, Inc. (ArvinMeritor) pursuant to Code of Civil Procedure section 998 after trial.*fn1 *fn2

The Farags contend a section 998 offer made jointly to a husband and wife is void.

Guided by Barnett v. First National Ins. Co. of America (2010) 184 Cal.App.4th 1454 (Barnett), we conclude a section 998 offer may be made jointly to spouses because, under California's community property law, a cause of action for personal injury damages is community property (Fam. Code, § 780) and under Family Code section 1100, subdivision (a), either spouse has the power to accept the offer on behalf of the community. Therefore, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, Nasseem, a 58-year-old man, was diagnosed with mesothelioma, a cancer linked to asbestos exposure.

Nasseem began working as a mechanic shortly after immigrating to the United States in 1981. Later, Nasseem purchased his own gas station in Ontario, California, where he continued to perform repair work on vehicles.

Following Nasseem's diagnosis, he and his wife, Sanna, sued various defendants alleging his exposure to asbestos-containing vehicles and vehicle parts. The complaint sought damages for personal injury and loss of consortium. Numerous defendants were named, including ArvinMeritor, whose predecessor, Rockwell International Corporation, was a manufacturer and distributor of asbestos-containing brake linings during the relevant years.

Prior to trial, ArvinMeritor served a section 998 offer to compromise on the Farags. ArvinMeritor offered the Farags one cent ($0.01) in exchange for a dismissal with prejudice and a mutual waiver of costs. The offer was made jointly to the Farags and did not specify that the offer was capable of acceptance by either plaintiff without the consent of the other. The offer was predicated on ArvinMeritor's assertion there was no evidence that Nasseem had been exposed to any ArvinMeritor product. The Farags did not accept the offer and proceeded to trial against various defendants, including ArvinMeritor.

The jury returned a verdict in favor of ArvinMeritor.

ArvinMeritor then submitted a memorandum of costs which included a request for $11,033 for expert witness fees as well as $2,173 in expert travel costs, based on the rejected section 998 offer.

The Farags filed a motion to tax those costs, as well as other costs requested by ArvinMeritor.

The trial court partially granted the motion to tax costs, but denied the Farags' motion to tax the expert witness fees and expert travel costs.

The Farags filed a timely notice of appeal from the post-judgment order on the ...


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