In Bates v. Presbyterian Intercommunity Hospital, Inc., (2012 WL 763132) Plaintiff, the Administrator of patient’s estate, brought an action against Presbyterian Intercommunity Hospital, Inc. (“Presbyterian”), and others for, among other things, elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Protection Act”). During the litigation, Presbyterian served an offer to compromise pursuant to California Code of Civil Procedure § 998. Presbyterian offered to waive costs and refrain from pursuing a claim for malicious prosecution if Plaintiff agreed to dismiss her claims against Presbyterian with prejudice. Plaintiff did not accept the offer before it expired. Subsequently, during jury selection, Plaintiff voluntarily dismissed her claims against Presbyterian, with prejudice.
Thereafter, Presbyterian submitted a memorandum of costs as the prevailing party, including a request for expert witness fees. The expert witness fees were based on the C.C.P. § 998 Offer to Compromise and included fees incurred prior to the issuance of the offer to compromise. The trial court awarded costs, including all requested expert fees, to Presbyterian. Plaintiff appealed.
The Elder Protection Act contains an attorneys’ fee provision that permits an award of attorneys’ fees to successful plaintiffs in certain situations. The provision is unilateral and does not permit successful defendants to recover their fees. Courts have concluded that because of the important public policies underlying the Elder Protection Act, a successful defendant may not recover attorneys’ fees even where another relevant statutory or contractual provision would permit the Court to award them.
On appeal, Plaintiff argued that the same reasoning applied to attorney fee awards should be applied to an award of costs to a prevailing defendant, and that a plaintiff seeking to enforce the important public policies underlying the Elder Protection Act should not be concerned with the prospect of paying the defendant’s expert fees or costs if the litigation is unsuccessful. The Court of Appeal held that Presbyterian could recover costs from Plaintiff despite the implied preclusion of an award of attorneys’ fees to prevailing defendants under the Elder Protection Act. The Court of Appeal concluded that costs awardable under the statute which grants a prevailing party the right to recover costs (C.C.P. § 1032) and the cost-shifting offer to compromise statute (C.C.P. § 998) cannot be precluded by implication because the Elder Protection Act does not expressly disable a prevailing defendant from recovering costs and expert fees as it does attorneys’ fees.
The Court of Appeal, thereafter, determined that the offer to compromise was reasonable and awarded Presbyterian expert witness fees pursuant to its C.C.P. § 998 offer to compromise. The Court of Appeal found that expert witness fees recoverable under C.C.P. § 998 are not tied to the date the compromise offer was served. The Court reasoned that the first sentence of C.C.P. § 998 subdivision (c)(1) limits certain recoverable “costs” to those incurred subsequent to the date of the offer. The second sentence, however, which relates to “costs of the services of expert witnesses,” contains no such limitation. As such, the Court’s award of expert fees incurred prior to the offer to compromise was proper.
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