Opinion
D069615
12-21-2016
VIRGINIA EBERT, Plaintiff and Appellant, v. THELMA PRESS, Defendant and Respondent.
Law Office of Susan M. Goldbeck and Susan M. Goldbeck for Plaintiff and Appellant. Koeller, Nebeker, Carlson & Haluck, Robert C. Carlson, Sharon A. Huerta and Scott A. Davis, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00095315-CU-PO-CTL) APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Reversed in part and affirmed in part. Law Office of Susan M. Goldbeck and Susan M. Goldbeck for Plaintiff and Appellant. Koeller, Nebeker, Carlson & Haluck, Robert C. Carlson, Sharon A. Huerta and Scott A. Davis, for Defendant and Respondent.
The sole issue before us is whether the court erred in awarding $10,245 in expert costs to a prevailing defendant (respondent) under Code of Civil Procedure section 998 (section 998). We conclude the court erred because the section 998 settlement offer was a joint offer made by respondent and another defendant and the plaintiff recovered more than the offer from the other defendant.
Accordingly, we reverse the portion of the cost order awarding respondent $10,245 in expert costs. We affirm the cost order in all other respects.
RELEVANT FACTS AND PROCEDURE
Virginia Ebert and Thelma Press are neighbors. Press's property is owned by her revocable living trust. After one of Press's large trees fell on Ebert's property, Ebert sued Press in her individual capacity (Press) and as trustee of her trust (Trustee). Ebert alleged Press and the Trustee (collectively Defendants) were jointly and severally liable for damages caused by the fallen tree.
Press's attorney made numerous efforts to persuade Ebert's attorney to dismiss Press (as an individual) from the lawsuit as an improper party. Ebert's attorney refused to do so.
In October 2014, Defendants made a joint section 998 offer in which they offered to settle Ebert's "claims against them, jointly and severally, in exchange for" $20,001. The offer was conditioned on Ebert's dismissal with prejudice of her first amended complaint and the execution of releases of all claims arising from or related to the subject of the litigation. Ebert did not accept the offer.
Defendants' section 998 offer read: "Defendants THELMA PRESS, individually, and as TRUSTEE FOR THE LOUIS M. AND THELMA PRESS LIVING [TRUST] (collectively referred to hereinafter as 'Defendants'), pursuant to Code of Civil Procedure Section 998, offer to compromise all of Plaintiff VIRGINIA EBERT'S ('Plaintiff') claims against them, jointly and severally, in exchange for payment to Plaintiff of Twenty Thousand and One Dollars ($20,001.00). [¶] Defendants' offer is conditioned upon Plaintiff's dismissal, with prejudice, of her First Amended Complaint and execution of a Release of All Claims against Defendants, including their past, present, and future employees, agents, insurers, lenders, heirs, administrators, trustors, trustees, beneficiaries, creditors, and assigns as to all matters arising out of or in any way related to the subjects of the above-referenced litigation, including Plaintiff's express waiver of the provisions of Civil Code Section 1542. Plaintiff may indicate her acceptance by having her attorney of record sign where indicated below. [¶] . . . If this Offer is not accepted, Defendants, and each of them, will seek recovery of their costs incurred to defend this action, including expert witness fees, pursuant to Code of Civil Procedure Section 998."
On the day scheduled for trial, the court granted Press's dismissal motion and entered judgment in favor of Press in her individual capacity. The judgment stated: "Subsequent to the entry of this judgment of dismissal, [Press] will claim costs by filing a Memorandum of Costs pursuant to California Rules of Court, rule 3.1700(a)."
This court affirmed the dismissal judgment in a prior nonpublished opinion. (Ebert v. Press (May 20, 2016, D068153) (Ebert I).) Ebert I contains a detailed description of the parties' substantive claims and defenses. Because these matters are not relevant here, we omit a discussion of these facts.
Under rule 3.1700, a prevailing party must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or 180 days after entry of judgment, whichever is first.
The court then conducted a jury trial on Ebert's claims against Trustee. The jury found in Ebert's favor and awarded her $60,000 against Trustee. The court scheduled a hearing on Ebert's equitable abatement claim against Trustee, but later stayed the hearing.
Meanwhile, Press filed a memorandum of costs pertaining to the dismissal judgment entered in her favor. Press requested $52,929.23 in costs, which included $20,490 in expert fees pertaining to services provided by three different experts.
Ebert moved to strike and/or tax the claimed costs. Ebert's notice of motion identified several grounds for the motion, including that Press "has not established that [she] made a valid [section] 998 offer" for recovery of her expert costs. In her memorandum of points and authorities, Ebert argued primarily that Press and Trustee were "united in interest," and therefore the court should not award Press any costs or the court should apportion the costs (including the expert costs).
In her opposition, Press argued that a joint section 998 offer from multiple defendants is valid and it is not necessary that all defendants prevail as a precondition to a section 998 expert cost award. Relying on several authorities including Winston Square Homeowner's Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282 (Winston Square), Press claimed entitlement to "recovery of her expert witness costs as an 'absolute prevailing party.' " Press emphasized she and Trustee had distinct legal capacities and obligations with respect to the property at issue, and she was required to actively defend the matter for several years until she was finally dismissed from the action.
In reply, Ebert argued the $60,000 jury award against Trustee legally precluded Press from recovering her claimed expert fees under section 998 because the jury award was higher than the joint offer. In support, Ebert relied on Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141 (Persson) and Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227 (Kahn). As discussed below, these cases stand for the proposition that when defendants make a joint section 998 offer, in evaluating a defendant's later motion for an enhanced cost award under section 998, it is necessary to view the plaintiff's cumulative recovery against all defendants for purposes of deciding whether the plaintiff obtained a more favorable judgment. (§ 998, subd. (c)(1).) Ebert also argued the section 998 offer was invalid because (1) she could not be reasonably certain of the value of the offer because defendants did not specify who was responsible for costs; and (2) the offer could be read to include a condition that she release a claim that was not part of the lawsuit.
Kahn was filed after Ebert filed her initial motion, but before Ebert filed her reply brief. (Kahn, supra, 240 Cal.App.4th 227.)
In its tentative ruling, the court denied Ebert's motion in its entirety. With respect to Ebert's challenge to the section 998 expert costs, the court found Ebert did not properly raise the issue because she asserted the arguments for the first time in her reply papers. The court additionally rejected Ebert's argument regarding Press's failure to specify in the offer which party would bear costs.
At the hearing, both counsel focused on fairness issues. Ebert's counsel urged the court to apportion the costs, asserting it was unfair to require Ebert to bear 100 percent of Press's expert costs when those costs were shared by the Trustee, against whom Ebert had prevailed. Press's counsel responded that Press was the prevailing party in the litigation and it was unfair to require Press to bear any of the expert costs when it was clear from the outset of the litigation that Press was an improper defendant.
After taking the matter under submission, the court reiterated its earlier findings that Press "is the prevailing party as to plaintiff's claims against her" and that the "costs claimed are allowed by statute and appear proper on the face of defendant's Cost Memorandum." But the court modified its earlier tentative ruling by reducing the amount of allowed costs. As to expert costs, the court stated it was "apportion[ing]" the claimed expert costs and ordered Ebert to pay $10,245 of these costs.
DISCUSSION
I. Overview
Generally, a prevailing defendant is not entitled to recover fees paid to experts. (Martinez v. Brownco Construction Co., Inc. (2013) 56 Cal.4th 1014, 1018-1019 (Martinez).) But these costs may be recoverable under section 998 in certain circumstances. (Id. at p. 1019.)
The relevant provision here is section 998, subdivision (c), which provides that if a valid offer made by a defendant "is not accepted and the plaintiff fails to obtain a more favorable judgment or award, . . . the court . . . in its discretion, may require the plaintiff to pay a reasonable sum to cover post-offer costs of the services of expert witnesses . . . ." (§ 998, subd. (c)(1).) To be a valid section 998 offer, the offer must be in writing, served not less than 10 days before trial, and specify the terms and conditions of the settlement. (§ 998, subd. (b); see Martinez, supra, 56 Cal.4th at p. 1019.) The party seeking expert costs has the initial burden to make a prima facie showing that the statutory elements are satisfied.
Ebert contends the court erred in awarding expert costs under this subdivision on three alternative grounds: (1) the section 998 offer was not valid as it was unclear as to the payment of costs; (2) the section 998 offer was not valid because it required the dismissal of claims that were not part of the lawsuit; and (3) even if the offer was valid, Ebert failed to "obtain a more favorable judgment" within the meaning of section 998, subdivision (c)(1) when considering the cumulative outcome against both defendants. We agree with the third argument, and therefore do not reach the first two arguments.
II. Applicable Legal Principles
A joint defense settlement offer can be a valid section 998 offer. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 889 (Austin B).) Where, as here, defendants who are alleged to be jointly and severally liable make a joint offer, a plaintiff can reasonably assess his or her chances of obtaining a better judgment against either defendant and thus the offer is not impermissibly vague or uncertain. (Persson, supra, 125 Cal.App.4th at pp. 1169-1172; Austin B., supra, at p. 889; Brown v. Nolan (1979) 98 Cal.App.3d 445, 448-451 (Brown).) This is true even "though one defendant has no potential liability on one of plaintiff's claims." (Persson, supra, 125 Cal.App.4th at p. 1170.)
But a showing of the validity of the section 998 offer is only the first step in the expert fees analysis. The defendant must also prove the plaintiff's monetary recovery was less than the amount of the offer. (§ 998, subd. (c)(1).) Press argues she met her burden on this element because Ebert recovered nothing against her, whereas the settlement offer was for $20,001. Ebert counters that Press did not meet this burden because Ebert's combined recovery against Press and Trustee was $60,000, about three times the amount of the offer. Press responds that the jury verdict against Trustee is irrelevant to the analysis.
These competing arguments raise the issue as to how a court determines the "more favorable judgment or award" element of section 998, subdivision (c)(1) when there are multiple offering defendants and different outcomes for each of the defendants. In resolving this question, we do not write on a clean slate. This issue has been considered by at least three courts: Winston Square, supra, 213 Cal.App.3d 282; Persson, supra, 125 Cal.App.4th 1141; and Kahn, supra, 240 Cal.App.4th 227. Winston Square's analysis supports Press's view, and the reasoning by the Persson and Kahn courts supports Ebert's assertions. Before explaining our conclusion that we find the latter decisions to be more persuasive, we first briefly summarize the decisions.
In Winston Square, a homeowners association sued a developer and multiple subcontractors for alleged construction defects. (Winston Square, supra, 213 Cal.App.3d at pp. 285-286.) The trial court dismissed three of these parties based on their statute of limitations defense. (Id. at pp. 286-287.) After the dismissal, one of the subcontractors recovered section 998 expert fees based on the plaintiff's rejection of a $500,000 settlement offer made on behalf of all defendants and cross-defendants. (Id. at pp. 293-294.) The homeowners association appealed. Although most of the appellate opinion concerned timeliness issues, in a brief discussion the reviewing court rejected the plaintiff's challenge to the expert cost award. The court first noted that joint offers fall within section 998 if defendants are alleged to be jointly and severally liable. (Id. at p. 294.) The court then summarily concluded (without analysis or citation to authority) that the subcontractor was the "prevailing party" under section 998 because it was "completely absolved of any liability" and that a "subsequent settlement between plaintiff and the other defendants on [other] issues . . . was irrelevant . . . ." (Ibid., italics added.)
Without expressly rejecting Winston Square's reasoning, Persson took a different approach. (Persson, supra, 125 Cal.App.4th at pp. 1168-1172.) There, two defendants alleged to be jointly and severally liable made a joint $500,000 section 998 offer. (Id. at p. 1169.) After trial on the plaintiff's case, the court entered judgment (1) in the plaintiff's favor against one defendant for $306,000 and (2) in the other defendant's favor. (Id. at p. 1151.) The prevailing defendant then moved for expert fees under section 998, subdivision (c)(1) because the plaintiff failed to recover more than the $500,000 offer. (Id. at p. 1169.) The trial court found the offer was not valid because the offer was not apportioned and therefore the plaintiff " 'was not in a position to evaluate the offer.' " (Ibid.)
The Persson court reversed, stating: "[I]t is incomprehensible why a plaintiff would be unable to evaluate an offer in which each defendant offers to have judgment taken against him, jointly and severally, in a stated amount, even if one defendant has no liability on one of the plaintiff's claims. The plaintiff need only assess the chances of recovery on each of his claims, no matter which defendant is liable, and add them together. If the joint offer exceeds that amount, the plaintiff should accept it. In this case, [the plaintiff] had only to assess his chances of recovering more than $500,000 on all of his claims against both defendants. . . . The evaluation is straightforward, as is the ability to determine after trial whether the offer was more favorable than the judgment." (Id. at pp. 1170-1171.) In rejecting the plaintiff's contention that the joint offer placed him in an untenable position because he had to "either take the unapportioned offer 'or perhaps risk paying enormous post-offer attorneys' fees to only one of the Defendants' " the Persson court explained: "There is no such risk. The offer was joint, and [plaintiff] could not accept the offer as against one defendant and not the other. Even if, after trial, one defendant were found to have no liability, that defendant could not claim post-offer costs against [plaintiff] unless the other defendant's liability was also less than the offer, since the offer was a joint offer." (Id. at 1171, italics added.)
Ten years later, the Kahn court addressed the same issue (in a different procedural context) by conducting an extensive survey of judicial decisions interpreting multiple-party section 998 offers. (Kahn, supra, 240 Cal.App.4th at pp. 237-241.) Based on this review and the policies underlying section 998, the Kahn court agreed with Persson's reasoning and explicitly rejected the Winston Square approach. (Kahn, at pp. 241-244.)
In Kahn, the plaintiff sued 20 defendants alleged to be jointly and severally liable, and the defendants then made a collective section 998 settlement offer. (Kahn, 240 Cal.App.4th at p. 229.) After 14 defendants obtained nonsuits, the court awarded them expert fees under section 998. (Id. at p. 233.) The Kahn court held the award was premature because defendants' entitlement to the award depended on the outcome of the plaintiff's case against the remaining six defendants. (Id. at p. 230.) The court reasoned that in determining whether a plaintiff has failed to obtain a more favorable recovery under section 998, subdivision (c), a court must view a plaintiff's entire recovery against all offering defendants (which it termed the "comparison approach"), rather than just a single prevailing defendant (which it called the "absolute prevailing party" approach). (Id. at pp. 242-243.) The court found the comparison approach to be compelled by section 998 because it "permits the offering party to recover its expert witness fees only if the offer and judgment concern the same parties, such that the judgment reveals whether the offer was reasonable." (Id. at p. 242, second italics added.) The court explained that viewing a single recovery in isolation would defeat section 998's objectives of encouraging reasonable settlement offers and reasonable settlement decisions, and would inject uncertainty and gamesmanship into the settlement process. (Id. at pp. 242-244.)
III. Analysis
On our review of section 998's language, the relevant judicial interpretations, and the public policies underlying section 998, we agree with Kahn and Persson that in determining whether a plaintiff failed to obtain a more favorable judgment after rejecting a valid joint section 998 defense offer, a court must evaluate the plaintiff's total recovery from the offering defendants, and not just from a single offeror. If the plaintiff's total recovery was more than the offer, a prevailing defendant is precluded from recovering section 998 costs.
Because section 998 does not explicitly refer to multi-party offers, courts focus on the policies underlying the statute in determining appropriate rules governing these offers. Section 998's fundamental policy is to encourage reasonable and fair settlement of lawsuits by providing financial incentives and disincentives in the form of enhanced cost awards. (Martinez, supra, 56 Cal.4th at p. 1019.) In a multiple-defendant offer situation, this policy objective is achieved by allowing defendants to recover the statutory costs only if the total recovery against all defendants was less than the offer. This is because in evaluating the reasonableness of a joint offer, the relevant comparison is between the total amount offered and the cumulative value of the claims to be dismissed against all offering defendants. Because a plaintiff must dismiss claims against all offering defendants, a rational plaintiff would accept the offer only if the total estimated value of the claims to be dismissed is equal to or less than the total offer. Any policy that would encourage only a limited consideration of the plaintiff's case (as to any one defendant) when evaluating this form of a settlement offer would incentivize defendants to make unreasonable joint offers and the plaintiff to overvalue or undervalue the case, diminishing the chances of a fair settlement and thus defeating the policies underlying section 998.
The logic of this conclusion is illustrated by the circumstances here. Defendants jointly made a $20,001 offer that could be accepted only if Ebert dismissed her claims against both defendants. While this may have been a valuable offer for Ebert with respect to Press, Ebert could only accept the offer if she dismissed her case against both defendants. Thus, before deciding whether to accept the offer, Ebert had to also evaluate her case against Trustee. If Ebert had accepted this joint offer, she would have lost her opportunity to recover from the Trust, against which she had a much stronger case (evidenced by her later obtaining a $60,000 jury verdict). To encourage a plaintiff to accept an offer under these circumstances would penalize the party for rejecting an offer that was substantially below the true value of the case. And it would reward a defendant with a weak defense for making a joint offer with a defendant with a stronger defense merely to unfairly pressure the plaintiff into accepting an unreasonable offer. (See Kahn, supra, 240 Cal.App.4th at pp. 243-244 ["[s]uch a rule . . . would create an incentive in every multi-defendant case for the defendants to jointly make a low-ball offer that would guarantee individual defendants enhanced costs if any one of them were to be dismissed or found not liable"].) Section 998 aims to permit a reasonable evaluation of claims and to promote settlement of claims at a fair value, and was not enacted to encourage a party to settle meritorious claims for less than they are worth. (See Kahn, supra, at pp. 242-243.)
Press argues that the Kahn-Persson approach is unfair to the prevailing defendant because it improperly penalizes the defendant for the other defendant's weaker case. She emphasizes that there was no colorable claim against her, and Ebert's counsel should have dismissed the claims long before she was forced to incur attorney fees and costs. The simple answer to this argument is that Press (a clear and absolute prevailing defendant) controlled the form of her settlement offer. If she believed (as she apparently did from the outset of the case) that Ebert had no colorable claim against her, Press was free to make a separate offer to Ebert to settle the case for a minimal amount or for a waiver of costs. If Ebert had rejected the offer and Press was later dismissed from the case, Press would have been able to recover her expert costs without reference to Ebert's recovery against a party with a weaker defense. Because the offering party controls the amount and form of the offer, it is not unfair to view the plaintiff's collective recovery against the offering defendants in determining whether the plaintiff received a more favorable judgment.
Press asserts that the "majority of courts . . . endorse [Winston Square's] 'absolute prevailing party rule.' " She cites three cases for this proposition: Austin B., supra, 149 Cal.App.4th 860; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 (Santantonio); and Brown, supra, 98 Cal.App.3d 445. None of these cases support the assertion.
In Austin B., two preschool students brought claims against the school district and several of its employees. (Austin B., 149 Cal.App.4th at p. 865.) The defendants collectively served a section 998 settlement offer on each plaintiff for $75,000, which each plaintiff rejected. (Id. at p. 889.) After various dispositive rulings and a trial, each defendant fully prevailed against the plaintiffs. (Id. at p. 870.) The trial court then awarded the defendants expert witness costs under section 998. On appeal, the plaintiffs argued the defendants were not entitled to these costs because they submitted a "lump sum settlement offer" and because defendants were "united in interest." (Austin B., supra, at p. 888.) This court rejected these arguments, noting that joint defense offers are valid under section 998, and then applied this rule in the vicarious liability context. (Id. at pp. 889-890.) We also observed: "Moreover, by joining in a group offer, each defendant assumed the risk that if plaintiffs' recovery against any one defendant exceeded the group offer, the plaintiffs would be able to recover their . . . section 998 costs against all defendants. . . ." (Id. at p. 890.)
Austin B. did not "endorse" Winston Square's reasoning on the issue before us. Although we cited to Winston Square, this citation was solely in support of our statement that joint defense section 998 offers may be valid (Austin B., supra, 149 Cal.App.4th at p. 889), a point that is undisputed here. Austin B.'s additional observation that when making a joint offer, each defendant assumes the risk regarding plaintiff's recovery against the other defendants is inconsistent with Winston Square's "absolute prevailing party" approach and supports our conclusion here—when considering section 998, subdivision (c)(1)'s "more favorable" result element in the joint defense offer context, it is essential that a court evaluate the plaintiff's recovery against all of the defendants and not merely with respect to a single defendant.
Likewise, neither Santantonio nor Brown applied Winston Square's reasoning on the issue before us. (Santantonio, supra, 25 Cal.App.4th 102; Brown, supra, 98 Cal.App.3d 445; see Kahn, supra, 240 Cal.App.4th at p. 244.) The Brown and Santantonio courts considered primarily the issue of whether a joint defense offer by defendants claimed to be jointly and severally liable can be a valid section 998 offer (Santantonio, at pp. 114-115; Brown, at pp. 449-451), an issue that is now well settled. Moreover, in both cases the defendants jointly made section 998 offers that exceeded the total amounts that the affected plaintiff recovered against the offering defendants. (Santantonio, at pp. 108-109; Brown, at pp. 447-448.) Here, the defendants jointly made a section 998 offer that was less than the judgment the plaintiff recovered after trial.
Beyond her reliance on Winston Square, Press contends we should uphold the trial court's conclusion because the court was acting in a discretionary capacity and there is no showing the court acted in an arbitrary or capricious manner. Press asserts the court had broad discretion to decide whether Ebert failed to obtain a more favorable judgment by considering the policies underlying section 998 when making its ruling.
This argument reflects a misunderstanding of the scope of the trial court's discretionary authority. Under the statutory language, the court first must decide whether the defendant met its burden to show he or she made a valid section 998 offer and that the plaintiff "fail[ed] to obtain a more favorable judgment or award." (§ 998, subd. (c)(1).) Where, as here, the relevant facts are undisputed on these issues, these determinations are legal questions, and do not involve the exercise of discretion. (See Kahn, supra, 240 Cal.App.4th at p. 234; Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130; Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 797.) If (and only if) the defendant establishes these elements, the trial court then engages in a discretionary exercise of judgment in determining whether the offer was reasonable and whether expert fees should be awarded to the moving defendant. (§ 998, subds. (b), (c)(1); see Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 629; Najah v. Scottsdale Ins. Co. (2014) 230 Cal.App.4th 125, 143-144.) In this case, the undisputed facts established Ebert recovered more than the joint offer from one of the offering defendants. Under applicable law, this recovery precluded either defendant from the right to recover enhanced costs under section 998. The trial court had no discretion to decide otherwise. (See Kahn, supra, 240 Cal.App.4th at pp. 234, 237-245; Ladas v. California State Auto. Assn. (1993) 19 CalApp.4th 761, 774-775; see also Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)
We briefly address two last points. First, Press argues that Ebert forfeited her right to raise the prevailing party issue because she failed to assert this point in her initial motion to tax and/or strike costs. (See Santantonio, supra, 25 Cal.App.4th at p. 113.) On our review of the record, we are satisfied that Ebert did sufficiently raise the issue in her reply brief below and Press's counsel had the full opportunity to address the issue (and did brief the issue) in her responsive motion papers. Moreover, a reviewing court has the discretion to consider an issue not previously raised if the issue concerns a legal question not dependent on the resolution of disputed facts. (See UFITEC, S.A. v. Carter (1977) 20 Cal.3d 238, 249, fn. 2; In re Julien H. (2016) 3 Cal.App.5th 1084, 1089.) That is the case here. (See Kahn, supra, 240 Cal.App.4th at p. 234.) The applicable facts are not disputed—the amount of the joint section 998 offer was $20,001, and Ebert recovered nothing as to Press and recovered $60,000 against Trustee. As explained above, these facts establish Press was not entitled to recover her expert fees under section 998.
A more troubling issue is whether Ebert forfeited her right by not squarely raising the more-favorable-result issue in her opening appellate brief. After consideration, we conclude that Ebert did not forfeit this right.
In her opening brief, Ebert focused primarily on her argument that the court erred in deciding the cost issue before a final judgment was entered in her case against Trustee and requested that we remand for further proceedings on this issue. We reject this argument because it appears that the only issue remaining in Ebert's case against Trustee is Ebert's abatement claim, the resolution of which would not affect the jury verdict awarding Ebert $60,000 or our conclusion on Press's right to recover expert fees.
Other than raising this timing argument, Ebert's counsel did not make clear in her opening appellate brief that she was challenging the court's failure to evaluate the outcome as against both defendants. But by discussing the Kahn case at length, Ebert sufficiently gave notice of the issue. Significantly, Press's counsel (to his credit) fully briefed the issue in the respondent's brief, and Ebert's counsel then responded to those arguments in her reply brief. Although we do not condone Ebert's counsel's briefing deficiencies, we are satisfied that the issue was fully briefed and is properly before this court. In the interests of justice, we shall order the parties to bear their own appellate costs. (Cal. Rules of Court, rule 8.278(a)(5).)
In a footnote in her appellate brief, Ebert asks us to take judicial notice of certain records filed in Ebert I. Although judicial notice may be proper, Ebert's counsel failed to comply with the procedural rules for requesting judicial notice on appeal, which include a requirement of a separate motion and an explanation why the matter is not in the record or separately provided to this court. (Cal. Rules of Court, rule 8.809.) We thus deny the request. We have nonetheless accepted the validity of certain facts on which counsel agree in their briefs.
Press moved to augment the record to include a reporter's transcript from the Ebert I case. We grant the motion, but conclude the material is not relevant to our analysis because it pertains to an issue we do not reach on this appeal.
DISPOSITION
The November 9, 2015 postjudgment costs order is affirmed in part and reversed in part. We reverse the portion of the order awarding defendant Thelma Press $10,245 for her expert witness fees. We affirm the order in all other respects. Each party to bear her own costs on appeal.
HALLER, J. WE CONCUR: NARES, Acting P. J. AARON, J.