Fish

Judgment was entered for defendants on plaintiffs’ complaint. Defendants filed a memorandum of costs and plaintiffs moved to tax those costs. Plaintiffs then filed a notice of appeal. Plaintiffs’ motion to tax costs was subsequently denied and defendants were awarded expert witness fees pursuant to Code of Civil Procedure section 998. Plaintiffs assert that the trial court erred when it refused to permit plaintiffs to call an undisclosed expert witness on rebuttal at trial. They also contend that the court should not have awarded expert witness fees to defendants. For the reasons expressed below, we affirm the judgment.

Facts

Plaintiffs own property directly across the street from defendants’ property. Plaintiffs brought an action against defendants alleging that defendants’ septic system was discharging waste and other harmful substances onto plaintiffs’ property. Plaintiffs sought an injunction and damages. Defendants made a pretrial offer to compromise pursuant to section 998 by offering to pay plaintiffs $5,000. The case was tried to the court and on October 3, 1991, judgment was entered for defendants. The judgment provided that defendants could recover from…