Santantonio

I respectfully dissent for two reasons. First, in my view the trial court erred in shifting any costs since the Code of Civil Procedure section 998 1 offer was not unconditional as required by that statute. Second, assuming it were appropriate to shift some costs, the court erred in failing to take account of appellant’s means in setting the amount of the award.

I. The Offer Was a Joint Offer Conditional on Acceptance by All Plaintiffs and Thus Invalid Under Section 998.

In my view the section 998 offer in this case was conditional and its rejection therefore cannot serve to shift the costs of defendant’s expert witnesses to appellant. The offer was conditional because it required acceptance by all three plaintiffs. As such, it is not effective to shift costs under Hutchins v. Waters (1975) 51 Cal.App.3d 69, 73 [ 123 Cal.Rptr. 819 ] and Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791 [ 260 Cal.Rptr. 826 ].

My first problem is with the fact respondent did not serve a separate section 998 offer on each of the three plaintiffs. Instead it combined the three offers in a single joint document and served it on the attorney who happened to be representing all plaintiffs.

Hutchins…

I.

Introduction

Plaintiff and appellant, Gerald Santantonio (Santantonio), appeals from an award of costs against him in the sum of $96,883.12, following his unsuccessful suit against defendants and respondents.

II.

Factual and Procedural Synopsis

Santantonio and two other plaintiffs, Gerald A. Velona (Velona) and Joseph R. Cochrane (Cochrane), were former account executives employed by Los Angeles radio station KFWB, owned by defendant and respondent Westinghouse Broadcasting Company, Inc. (WBC). Santantonio and Velona claimed that they were terminated by KFWB because of their age. Cochrane claimed that age discrimination forced him to leave KFWB for another job which did not pay as well. Plaintiffs also sued WBC’s parent corporation, Westinghouse Electric, Inc., and two managerial employees of KFWB, Jack Hutchison (Hutchison) and Joanne Cunha (Cunha). Cunha was dismissed as a defendant at the start of the trial.

On September 6, 1991, defendants served on plaintiffs’ counsel an “offer to compromise,” pursuant to Code of Civil Procedure section 998 1 as follows:

“Pursuant to C.C.P. § 998, defendants Westinghouse Broadcasting Co., Westinghouse Electric, Inc., Jack…

WOODS (Fred), J. —

Plaintiff and appellant, Gerald Santantonio (Santantonio), appeals from an award of costs against him in the sum of $96,883.12, following his unsuccessful suit against defendants and respondents.

Santantonio and two other plaintiffs, Gerald A. Velona (Velona) and Joseph R. Cochrane (Cochrane), were former account executives employed by Los Angeles radio station KFWB, owned by defendant and respondent Westinghouse Broadcasting Company, Inc. (WBC). Santantonio and Velona claimed that they were terminated by KFWB because of their age. Cochrane claimed that age discrimination forced him to leave KFWB for another job which did not pay as well. Plaintiffs also sued WBC's parent corporation, Westinghouse Electric, Inc., and two managerial employees of KFWB, Jack Hutchison (Hutchison) and Joanne Cunha (Cunha). Cunha was dismissed as a defendant at the start of the trial.

On September 6, 1991, defendants served on plaintiffs' counsel an "offer to compromise," pursuant to Code of Civil Procedure section 998 [1] as follows:

"Pursuant to C.C.P. § 998, defendants Westinghouse Broadcasting Co., Westinghouse Electric, Inc., Jack Hutchison, and Joanne Cunha hereby…