Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 06CC05854 Gregory Munoz, Judge. Appeal treated as taken from subsequently entered judgment.
Michael Maguire & Associates, Kevin R. Jolly and Paul Kevin Wood for Defendants and Appellants.
Everett L. Skillman for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendants Rose Marie Watts-Plhak and Star Real Estate appeal from a prejudgment order striking their request for expert witness fees. Although the appeal is premature, the trial court incorporated its ruling into the subsequently entered judgment. Thus, we exercise our discretion to treat the appeal as one taken from the judgment and having been filed immediately after its entry. (Cal. Rules of Court, rule 8.104(e)(2).)
The sole issue is whether the trial court erred by finding defendants’ pretrial settlement offer, proposing to waive costs in return for plaintiff’s dismissal of the action, was not made in good faith. (Code Civ. Proc., § 998; all further statutory references are to the Code of Civil Procedure.) Since the record before us fails to show the trial court abused its discretion by striking the expert witness fees, we affirm the judgment.
FACTS
Plaintiff sued defendants alleging he suffered property damage and personal injuries arising from an automobile collision between his car and one driven by Watts-Plhak. Before trial, defendants timely served plaintiff with the following section 998 offer to compromise: “Defendants will settle with plaintiff for a waiver of costs of litigation in exchange for a full dismissal with prejudice,” including “any and all liens . . . and . . . fees . . . .” Plaintiff did not accept defendants’ proposal.
The case proceeded to a jury trial. The jury returned a special verdict finding defendant Watts-Plhak was negligent. But, concluding her negligence did not cause the injuries claimed by plaintiff, the jury did not award any damages.
Defendants filed a memorandum of costs for nearly $20,000 that included a request for over $13,000 in expert witness fees under section 998. Plaintiff moved to tax costs, arguing the expert witness fee request should be deleted. He described defendants’ section 998 offer as one “for $0,” and argued that, in light of his claims for nearly $200,000 in medical expenses and over $50,000 in lost earnings, it was “unreasonable and [in] bad faith.” Defendants’ opposition contended their section 998 offer was not “nominal or token” because “an offer to settle for a waiver of costs is not the functional equivalent of an offer to settle for $0.”
The trial court granted plaintiff’s motion to tax costs. At the hearing on the motion, the judge acknowledged “[t]here are cases going both ways on this issue” but, citing defendants’ “significant exposure” for “medical expenses,” found this case analogous to Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53. The court rejected defendants’ characterization of the lawsuit as “a clear no liability case,” describing it as “a clear liability case with a serious issue on proximate cause.” In its minute order, the court provided the following explanation for the ruling: “To support expert fees, there must be a good faith offer and a reasonable chance that plaintiff will accept it . . . . Here, the defense admits that the sole purpose of the offer was to obtain expert fees. Under the circumstances of this case, the Court finds that the offer was not made in good faith . . . .”
DISCUSSION
1. Section 998
Section 998 allows a defendant to augment its recovery of costs where it makes a timely but unsuccessful pretrial offer to compromise and “the plaintiff fails to obtain a more favorable judgment” after trial. (§ 998, subd. (c)(1).) In part, the statute declares “the court . . ., 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 during trial . . . of the case by the defendant.” (Ibid.)
The statute is intended to encourage pretrial settlement of litigation, by operating to punish a party that fails to accept another party’s reasonable settlement offer. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 544; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) To trigger section 998, “the pretrial offer of settlement . . . must be realistically reasonable under the circumstances of the particular case.” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.)
“Where . . . the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on . . . [the] offeree, to prove otherwise.” (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 700; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152.) But on appeal, the trial court’s ruling under section 998 is reviewed for abuse of discretion. (Carver v. Chevron U.S.A., Inc., supra, 97 Cal.App.4th at p. 152; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) “‘[“]The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citation.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; see also Agnew v. State Board of Equalization (2005) 134 Cal.App.4th 899, 910.)
2. The Order Striking Defendants’ Expert Witness Fees
Defendants challenge the order striking their request for expert witness fees on several grounds. First, citing the facts of the case, defendants argue the jury’s refusal to award damages to plaintiff was not “surprising or unusual,” and it would be “inequitable” to require it “to make an offer contraindicated by the evidence . . . .”
Defendants have failed to provide an adequate record preserving this argument for appellate review. The record consists of only the clerk’s transcript, some trial exhibits, and a reporter’s transcript covering only the cross-examination of plaintiff. Generally, a case submitted on this type of record is treated as a judgment roll appeal. (Kopf v. Milam (1963) 60 Cal.2d 600, 601 [“appeal on the clerk’s transcript and certain exhibits is treated as an appeal on the judgment roll”]; Williams v. Inglewood Board of Realtors (1963) 219 Cal.App.2d 479, 482 [“Appellant cannot broaden the scope of this court’s inquiry by incorporating in the clerk’s transcript the documentary evidence received in the court below”].) “[T]he sufficiency of the evidence to support the findings is therefore not open to question.” (Kopf v. Milam, supra, 60 Cal.2d at p. 601.)
In Jones v. Dumrichob, supra, 63 Cal.App.4th 1258, the Court of Appeal cited the failure to provide an adequate appellate record in rejecting an attack on the trial court’s order finding the defendant made a reasonable pretrial settlement offer. “Considering that the determination of the good faith and reasonableness of a section 998 compromise offer is left to the sound discretion of the trial court [citation], appellants’ failure to designate the reporter’s transcript of the trial as part of the record on appeal leaves this court with no evidence upon which to base a finding that the trial court abused its discretion in determining that respondent’s . . . offer was reasonable. Given this omission, and unlike the trial judge, we are unable to evaluate independently the strength of appellants’ case on the merits. Therefore, on this record, it would be speculative to make that assessment ourselves, or to reject the trial court’s judgment. [Citation.]” (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1264.)
Defendants’ inclusion of a partial reporter’s transcript does not assist their case. Under California Rules of Court, rule 8.130(a)(2), “If the appellant designates less than all the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.” Since defendants failed to comply with rule 8.130(a)(2), they have waived the right to assert that “the facts of this case” show they made a reasonable pretrial settlement offer. (Calhoun v. Davis (1953) 121 Cal.App.2d 167, 171.)
Second, defendants claim plaintiff failed to carry his burden of showing the waiver of costs offer was unreasonable. Plaintiff challenged the reasonableness of defendants’ section 998 offer, noting his claim for over $250,000 in special damages. Citing defendants’ clear liability and their “significant exposure” for plaintiff’s “medical expenses,” the trial court concluded plaintiff satisfied his burden. In this appeal, it is defendants’ burden to establish the trial court abused its discretion in striking the expert witness fees (Nelson v. Anderson, supra, 72 Cal.App.4th at p. 136) and, given the competing “inferences [that] can reasonably be deduced from the facts, [we] ha[ve] no authority to substitute [our] decision for that of the trial court. [Citations.]” (Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479.)
Next, defendants argue their proposal to waive costs in return for a dismissal of the lawsuit was neither a token offer nor a disfavored one. We agree. But the issue is whether the trial court abused its discretion in finding defendants’ offer was not “realistically reasonable under the circumstances of th[is] particular case.” (Wear v. Calderon, supra, 121 Cal.App.3d at p. 821.) Defendants have failed to present a record establishing the trial court abused its discretion in finding their pretrial settlement offer was not made in good faith.
Suggesting the decisions in Pineda v. Los Angeles Turf Club, Inc., supra, 112 Cal.App.3d 53 and Jones v. Dumrichob, supra, 63 Cal.App.4th 1258 present conflicting results, defendants also ask that we “clarify the law as it pertains to offers to compromise for a waiver of costs.” We see no conflict in the reasoning or holdings of these two cases.
Pineda did not involve a waiver of costs. It concerned a wrongful death action against a manufacturer for defectively designing the helmet worn by the decedent. The jury returned a defense verdict, but the trial court taxed the manufacturer’s request for expert witness fees finding its $2,500 pretrial offer was “not ‘realistic.’” (Pineda v. Los Angeles Turf Club, Inc., supra, 112 Cal.App.3d at p. 63.) Affirming, the Court of Appeal ruled “[a]lthough [the manufacturer’s] liability was tenuous indeed, having in mind the enormous exposure the trial court could find that [it] had no expectation that its offer would be accepted,” and “[f]rom this” conclude “the sole purpose of the offer was to make [it] eligible for the recovery of large expert witness fees at no real risk.” (Ibid.) Jones upheld an award of expert witness fees to the defendant in an unsuccessful action based on his pretrial offer to allow judgment be taken against him in return for a waiver of costs, concluding this “offer . . . did have significant monetary value.” (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1263.)
In each case, the appellate court affirmed the trial court’s ruling on the reasonableness of a defendant’s section 998 settlement offer. Here, the trial court acknowledged “[t]here are cases going both ways on this issue,” and concluded Pineda presented a more analogous situation. Based on the record, we cannot conclude it acted beyond the bounds of reason in doing so.
Finally, defendants contend the record does not support the statement in the trial court’s minute order that “the defense admits that the sole purpose of the offer was to obtain expert fees.” We agree the record before us does not support this statement. Defendants argued their “costs in this matter were [nearly $20,000],” and thus the “offer to settle for a waiver of costs had a substantial monetary value.” Nonetheless, as discussed above, this finding was not the sole basis for the trial court’s ruling. In light of the limited record before us, we cannot speculate on the propriety of its decision to deny defendants’ request for expert witness fees.
DISPOSITION
The appeal is treated as one taken from the judgment incorporating the order striking appellants’ expert witness fees, and the judgment is affirmed. Respondent shall recover his costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.