Opinion
2d Civil No. B186756
12-7-2006
LITA BIEJO, Plaintiff and Appellant, v. JACOB DAKESSIAN, Defendant and Respondent.
Rehwald Rameson Glasner & Chaleff and William Rehwald for Plaintiff and Appellant. Moriarity & Associates and John L. Moriarity for Defendant and Respondent.
Plaintiff and appellant Lita Biejo sued defendant and respondent Jacob Dakessian for injuries she suffered during an all-terrain vehicle (ATV) accident allegedly caused by defendants dog. The trial court entered judgment in defendants favor after it determined during a bifurcated bench trial that defendant was not the owner of the dog. In this appeal, plaintiff contends: (1) the judgment must be reversed because she was denied her right to a jury trial on the issue of liability; (2) the court erred when it ordered her to pay defendants expert witness fees as a consequence of her rejection of a pretrial offer to compromise under Code of Civil Procedure section 998; and (3) the court should not have ordered her to pay the fees of a defense medical expert whose testimony was excluded at trial based on his failure to provide plaintiff with a written report.
All statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant own neighboring parcels of ranch land which share a common roadway. On January 20, 2002, plaintiff was injured when she fell off an ATV she was riding down the roadway. She claimed the accident was caused by a dog chasing her and filed a lawsuit for general negligence against defendant as the owner of the dog. Defendant denied owning the dog, claiming that it was a stray that sometimes came on his property.
On May 22, 2003, defendant filed a section 998 offer to compromise in which he agreed to waive costs in exchange for a dismissal. The offer was rejected and, after a number of continuances, the case was set for trial in July 2005. Plaintiff waived her right to a jury trial, but defendant did not. At a hearing on various motions in limine, the trial court suggested that the issue of whether defendant owned the dog could be dispositive because if he was not the dogs owner he owed plaintiff no duty to control the dog. The court suggested a bifurcated proceeding for the trial of the ownership issue only, and defense counsel agreed. Plaintiffs counsel objected to bifurcation of this limited issue, although she agreed that the broader question of liability (which would include additional issues of breach of duty and causation) could be bifurcated from issue of damages.
Defendant waived his right to a jury trial on the issue of the dogs ownership and the trial proceeded before the court. At the conclusion of the bifurcated proceeding, the court determined that plaintiff had not carried her burden of proving that defendant was the owner of the dog that allegedly caused her accident. Judgment was entered in favor of defendant.
Defendant filed a cost bill seeking $25,062.05 as the prevailing party. This post-offer amount included pretrial interest, the fees of Dr. John Larsen, who performed an independent medical examination of plaintiff on defendants behalf, and the fees of Carl Sheriff, P.E., an accident reconstruction expert retained by defendant. Plaintiff filed a motion to tax costs. The court granted the motion to the extent it sought prejudgment interest, but ruled that defendant was entitled to the remainder of his costs.
DISCUSSION
Plaintiffs Right to a Jury Trial on Ownership Issue
Plaintiff contends she was deprived of her right to a jury trial on the issue of the dogs ownership. She acknowledges that she waived a jury before trial began, but argues that once the court decided to bifurcate the issue of the dogs ownership, and once defendant elected to waive his right to a jury trial on that limited issue, she should have been granted relief from her jury trial waiver. Plaintiff relies primarily on section 631, subdivision (e), which provides, "The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury."
The primary flaw in plaintiffs argument is that she never asked the trial court to exercise its discretion under section 631, subdivision (e). Plaintiffs counsel objected to bifurcating the issue of dog ownership from remaining issues of liability, on which defendant was unwilling to waive his right to a jury. She also expressed concern that if the court removed the ownership issue from the jurors consideration during the remainder of the liability phase, they would not have a complete view of the evidence. But when counsels objection to the limited bifurcation was overruled, she did not specifically ask that the trial on the ownership issue be held before a jury rather than the court.
In Taylor v. Union Pac. R.R. Corp (1976) 16 Cal.3d 893, cited by plaintiff, the court examined a previous version of section 631 and concluded that a party may be granted relief from a prior jury waiver when a party who has previously demanded a jury later decides to waive that right. (Id. at p. 900.) But Taylor also holds that the court is only obligated to consider this option when the party seeking such relief actually requests it. (Ibid.) The party seeking relief in Taylor was found to have waived the issue because she did not make such a request and instead acquiesced in the trial courts (mistaken) view that it did not have the authority to reinstate the right to a jury trial once a party had waived it. Taylor does not assist plaintiff.
Plaintiff also cites Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809, for the proposition that relief from a jury waiver should be granted unless it would work a serious hardship on the other party. In Boal, the trial court granted relief to a party who had requested a jury trial but whose counsel then inadvertently marked a box on a form showing a jury waiver. The case does not assist plaintiff, who never requested such relief.
Fees and Costs Awarded Under Section 998
Defendant made a section 998 offer in which he agreed to settle the case for a waiver of costs. Plaintiff rejected the offer and did not obtain a more favorable judgment. The court awarded costs to defendant as the prevailing party, which included expert witness fees under section 998, subdivision (c)(1). Plaintiff contends the trial court should have granted her motion to tax costs and disallowed these fees, because the section 998 offer was a token one made in bad faith for the sole purpose of allowing the defendant to accumulate high expert fees. We disagree.
Plaintiff also challenges a purported award of prejudgment interest, but the minute order on the motion to tax costs shows that the $4,546.58 in prejudgment interest that was claimed by defendant in his costs bill was stricken as unauthorized.
Section 998, subdivision (c)(1) provides, "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." An offer under section 998 must be made in good faith to be valid, and must carry with it "some reasonable prospect of acceptance." (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698.) "One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees." (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263.)
A defendants offer to settle for a waiver of costs is not per se nominal or unreasonable, especially where the defense has incurred significant costs. (Jones v. Dumrichob, supra, 63 Cal.App.4th at pp. 1263-1264.) A modest offer may be in good faith in cases where the defendant has a significant likelihood of prevailing at trial. (Id. at p. 1264.) An offer under section 998 is presumed reasonable unless proven otherwise by the opposing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134.)
Plaintiff has not carried her burden of establishing that defendants offer was in bad faith. Defendant had a significant likelihood of prevailing at trial based on the dog ownership issue alone. In fact, he did so. Plaintiff complains that she did not know defendants costs at the time of the offer, hence, she had no way to assess the offer in relation to the likelihood of her success on the merits. But she knew that she was claiming physical injuries as a result of a motor vehicle accident and that appellant challenged her version of how the accident occurred. It was reasonably foreseeable that defendant would need to consult with experts in medicine and accident reconstruction if the case proceeded to trial, even if plaintiff did not know the precise amount of the fees that would be incurred when she rejected the section 998 offer. The trial court did not abuse its discretion in awarding expert witness fees. (See Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1262.)
Fees of Dr. Larsen
Plaintiff argues that the court should not have awarded defendant $ 784.30 in expert witness fees for services rendered by Dr. John Larsen, who conducted an independent medical examination on behalf of the defense. She points out that Dr. Larsen was excluded as a witness at trial based on his failure to provide a written report to plaintiff as required by former section 2031, subdivision (h) (now § 2032.610, subd. (a)(1)). Section 998, subdivision (c)(1) allows an award of expert witness fees incurred in preparation for trial, even if the expert is not called to testify. Dr. Larsens services allowed defendant to prepare for trial and the cross-examination of plaintiff and her physicians, even if he was excluded as a trial witness. The trial court did not abuse its discretion in awarding his expert witness fees. (See Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.)
The judgment is affirmed. Costs on appeal are awarded to defendant.
We concur:
YEGAN, Acting P.J.
PERREN, J.