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Amy Jo Mcdaniel et al v. Loyd Richard Asuncion

March 27, 2013

AMY JO MCDANIEL ET AL., PLAINTIFFS AND APPELLANTS,
v.
LOYD RICHARD ASUNCION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CV266577) APPEAL from an order of the Superior Court of Kern County. William D. Palmer, Judge.

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

CERTIFIED FOR PUBLICATION

OPINION

Appellants, Amy Jo McDaniel and Melissa McDaniel, challenge the trial court's award of expert witness fees under Code of Civil Procedure*fn1 section 998 to respondent, Loyd Richard Asuncion, following the entry of a defense verdict on appellants' wrongful death lawsuit. Appellants argue that respondent's section 998 offer was invalid because it was a single offer made to two plaintiffs.

Although joint offers may be invalid, such was not the case here. In a wrongful death action, a single joint cause of action is given to all heirs and the judgment must be for a single lump sum. A unitary verdict can easily be compared to a joint offer to determine whether the offering party has achieved a more favorable judgment. Thus, there is little, if any, justification for invalidating a joint offer made in a wrongful death case. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 630 (Johnson).)

Here, it can clearly be determined that respondent received a more favorable judgment. Accordingly, the award of expert witness fees will be affirmed.

BACKGROUND

Steven Carl McDaniel was killed in a multiple vehicle accident leaving behind appellants, his wife and daughter. Appellants brought the underlying wrongful death action against multiple defendants, including respondent.

Before trial, respondent served a joint section 998 offer on appellants in the amount of $100,000. Appellants did not accept this offer.

Appellants went to trial against respondent and one other defendant. While the jury awarded appellants over $3.3 million on their claim against the other defendant, the jury returned a defense verdict in favor of respondent.

As the prevailing party, respondent submitted a memorandum of costs. Respondent sought over $41,000 in expert witness fees. Because appellants failed to obtain an award that was more favorable than respondent's section 998 offer, the trial court awarded these expert fees to respondent.

DISCUSSION

Under section 998, no later than 10 days before trial "any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time." (§ 998, subd. (b).) If the offer is not timely accepted, it is deemed withdrawn. (§ 998, subd. (b)(2).)

However, the failure to accept a section 998 offer can have consequences. For example, if a plaintiff fails to obtain a more favorable result at trial, that plaintiff cannot recover his or her postoffer costs, must pay the defendant's costs from the time of the offer, and may be required to pay the defendant's reasonably incurred expert witness fees. (ยง 998, subd. (c)(1).) The purpose behind penalizing a party who fails to accept a reasonable section 998 offer in this manner ...


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