Barba

Following a special verdict by the jury, the trial court entered judgment in favor of plaintiff and respondent Antonio Barba for $117,053.42 against defendant and appellant Lupe Perez. Following judgment, Perez moved to tax certain costs Barba had claimed under Code of Civil Procedure section 998. 1 Perez’s motion was denied in part and granted in part.

Perez appeals from the judgment and the order denying his motion to tax costs, contending that (1) the jury’s verdict is not supported by substantial evidence; (2) the trial court erred in denying his motion for nonsuit based on an agency theory of liability; (3) the trial court erred in rejecting his proposed special jury instruction; and (4) the trial court erred in allowing Barba to recover section 998 costs against him. We shall affirm the judgment and order denying the motion to tax costs.

*447 FACTUAL BACKGROUND

Viewing the evidence most favorable to respondent (Barba), as we must (In re Paul C. (1990) 221 Cal.App.3d 43, 52 [ 270 Cal.Rptr. 369 ]), the record discloses the following facts.

On May 18, 2004, Perez was the owner of the Tropical Club in Lodi, which included a rental housing unit above the club. At the…

I concur in parts L, II. and III. of the majority opinion.

I respectfully dissent from part IV., which affirms the trial court’s award of prejudgment interest and expert witness fees under Code of Civil Procedure section 998. (Undesignated statutory references are to the Code of Civil Procedure.) In my view, plaintiff’s section 998 offer (998 offer), which was served at the same time as the summons and complaint, was invalid. The majority’s contrary conclusion unfortunately adds another wicked slider to a plaintiff’s arsenal of hardball litigation tactics: serving a 998 offer with the summons and complaint.

In Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692 [ 241 Cal.Rptr. 108 ] (Elrod), this court stated: “[T]he section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer.” (Id. at p. 699.)

In Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382 [ 85 Cal.Rptr.2d 4 ], this court recognized the importance of insuring that a party served with a 998 offer be given a reasonable opportunity to evaluate the…

Following a special verdict by the jury, the trial court entered judgment in favor of plaintiff and respondent Antonio Barba for $117,053.42 against defendant and appellant Lupe Perez. Following judgment, Perez moved to tax certain costs Barba had claimed under Code of Civil Procedure section 998. [1] Perez's motion was denied in part and granted in part.

Perez appeals from the judgment and the order denying his motion to tax costs, contending that (1) the jury's verdict is not supported by substantial evidence; (2) the trial court erred in denying his motion for nonsuit based on an agency theory of liability; (3) the trial court erred in rejecting his proposed special jury instruction; and (4) the trial court erred in allowing Barba to recover section 998 costs against him. We shall affirm the judgment and order denying the motion to tax costs.

Viewing the evidence most favorable to respondent (Barba), as we must ( In re Paul C. (1990) 221 Cal.App.3d 43, 52 [ 270 Cal.Rptr. 369 ]), the record discloses the following facts.

On May 18, 2004, Perez was the owner of the Tropical Club in Lodi, which included a rental housing unit above the club. At the time of the events…