California Court of Appeals, Fourth District, First Division
APPEAL from posttrial orders of the Superior Court of Riverside County, No. INC1001609 John G. Evans, Judge.
Tardiff Law Offices, Neil S. Tardiff; Ford, Walker, Haggerty & Behar and William C. Haggerty for Defendants and Appellants.
Law Offices of Robert S. Gerstein, Robert S. Gerstein; Daniels, Fine, Israel, Schonbuch & Lebovits and Alan J. Carnegie for Plaintiff and Respondent.
Prior to trial, defendant Eisenhower Medical Center (EMC) served on plaintiff David Litt a $15, 000 settlement offer under Code of Civil Procedure section 998, which Litt did not accept. Litt subsequently added Compass Group USA, Inc. (Compass) as a defendant in the suit. Compass did not serve a section 998 offer on Litt. A jury returned a verdict for Litt and against defendants jointly and severally for $3, 000.
After trial, EMC and Compass jointly requested costs and expert fees and Litt requested costs. The court found that Litt was the prevailing party as to Compass and EMC was the prevailing party as to Litt, but declined to award EMC its post-section 998 offer expert fees that were incurred and/or paid by Compass pursuant to an indemnity agreement between them.
EMC and Compass argue that the court should have treated them "as one" for purposes of recovering costs and expert fees and, in any event, it should have awarded EMC its post-section 998 offer expert fees paid by Compass. We conclude that the court correctly considered EMC and Compass separately for purposes of its prevailing party determination, but that it erred in denying EMC recovery of expert witness fees that were paid by Compass. Accordingly, we reverse the orders in that regard and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Litt suffered a personal injury in an EMC hospital cafeteria, when his head struck a partially closed gate. A year later, Litt filed a complaint against EMC for negligence. On April 7, 2011, EMC served a section 998 offer on Litt to settle the case for $15, 000. Litt did not accept EMC's section 998 offer before it expired by law. Thereafter, Litt amended his complaint to add Compass, which operated the cafeteria under a contract with EMC, as a defendant. Compass did not serve a section 998 offer on Litt.
EMC and Compass retained several medical experts to rebut the nature and extent of Litt's claimed injuries and damages. Although certain of the experts' invoices predated Compass's appearance in the case, subsequent to its appearance, Compass paid all of EMC's costs and expert fees pursuant to an indemnity provision between them.
At the outset of trial in October 2012, all parties orally stipulated in court that EMC and Compass would be "treated as one" for purposes of the trial. The jury returned a verdict for ...