Kahn v. The Dewey GroupAnnotate this Case
This case stemmed from plaintiff's personal injury suit against 20 defendants where plaintiff alleged that defendants were jointly and severally liable. After plaintiff denied a settlement offer under Code of Civil Procedure section 998 from all 20 defendants, the trial court granted a nonsuit as to 14 of the 20 defendants and entered judgment. The case against the remaining six defendants went to a jury but a mistrial was granted. The dismissed defendants asserted that defendants collectively had incurred nearly $300,000 in expert witness fees, and sought to recover 14/20ths (70 percent) of that total. Plaintiff moved to strike or tax costs on the ground that a final judgment had not yet been entered against all 20 of the defendants on whose behalf the section 998 offer had been made, and thus the dismissed defendants could not yet recover expert witness fees. The trial court denied the motion to strike or tax costs, and it awarded the dismissed defendants expert witness fees. The court reversed the award of expert witness fees, concluding that the offer must be compared to the judgment(s) obtained against all defendants, not some of the defendants. In this case, because no judgment has yet been entered with regard to six of the 20 defendants, the trial court erred in awarding expert witness fees to the 14 dismissed defendants.