Judge: Theodore R. Howard, Case: 19-1105688, Date: 2023-07-27 Tentative Ruling

Plaintiff Alice Alvidrez’s (“Plaintiff”) Motion to Tax Costs (“Motion”) requested by defendant Meredith Anne Castillo (“Meredith”) is GRANTED.

As an initial note, Meredith concedes that three of the requested categories of costs should be taxed to the following amounts:

Filing and motion fees:                  $1,275.00

Deposition costs:                         $1,798.40

Fees for electronic filing or service:    $   435.95

                                      Total:  $3,509.35

The Motion is GRANTED as to those conceded cost amounts.

The only cost at issue between the parties is the $1,500 requested for expert witness fees.  Expert witness fees may be recovered by a party who obtains a more favorable verdict than what was offered in a valid Civ. Proc. Code § 998 offer.  In the present matter, a Civ. Proc. Code § 998 offer (“Offer”) in the amount of $10,000 was served on Plaintiff on or about 03/21/21.  (Goldhamer Decl., Ex. 1.) 

The court finds the terms of the Offer to be ambiguous and thus the Offer was not valid.  Specifically, the while the Offer states that Meredith will pay Plaintiff $10,000, that offer was made “in satisfaction of all claims, damages, costs, expenses, attorney fees, and interest claimed in this action.”  [Emphasis added.]  (Goldhamer Decl., Ex. 1.)  Additionally, the Offer directed the clerk of the court to “enter judgment in this action” and that the $10,000 was for “satisfaction of all claims, damages, costs, expenses, attorney fees, and interest claimed in this action.”  [Emphasis added.]  (Id.)  As phrased, this would release all of Plaintiff’s claims in the entirety of this action against Meredith, her husband Lamberto Ricci Castillo (“Lamberto”), and nominal defendant Kenneth Broomhead (“Broomhead”).  The ambiguity of the terms of the Offer do not support the Offer being valid.  Meredith easily could have either inserted terminology in the Offer indicating it applied only to claims against Meredith, or she could have clarified the terms using some sort of extrinsic evidence (Prince v. Invensure Ins. Brokers, Inc. (2018) 23 Cal. App. 5th 614, 622), but she did neither.  Instead the terms are ambiguous and the Court of Appeal, “interpret[s] ambiguity in the offer against the offeror and strictly construe the offer in favor of the party against whom section 998 is sought to be enforced.“  (Auburn Woods I Homeowners Ass'n v. State Farm Gen. Ins. Co. (2020) 56 Cal. App. 5th 717, 725.)

The ambiguity of the terms of the Offer void the Offer.

Regarding whether the $10,000 offer was more than a nominal offer and made in good faith, Meredith’s prevailing on her motion for summary judgment constituted prima facie evidence the offer was reasonable as to any claims against Meredith. (Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, 26-27.)   However, again as noted, the Offer as phrased seeks to release all claims in this action, and not just those against Meredith.  Given this is a wrongful death action wherein one of the defendants (Lamberto) has already been convicted of killing two people in a criminal matter, a $10,000 release of those claims in a civil matter for the same killings would be a token or nominal amount and not satisfy the good faith requirement of a Civ. Proc. Code § 998 offer.  (Wear v. Calderon (1981) 121 Cal. App. 3d 818, 821.)

For these reasons, the court finds the Offer not to be valid and Meredith is not permitted to recover expert witness fees even though she prevailed on her summary judgment motion.

The Motion is GRANTED as to taxing the $1,500 in expert witness fees requested by Meredith.

Plaintiff to give notice.