Goodstein

I respectfully dissent.

My concerns about the majority opinion center on a single issue. Was the defendant’s offer a valid Code of Civil Procedure Section 998 offer despite the fact it included a demand the plaintiff sign a “general release,” not just a termination of this particular cause? I believe the answer is no, it was not. That is, I construe section 998 as limiting the terms of a statutory offer to the precise cause which will go to trial before the court if the offer is not accepted.

In my view, this very court actually decided this issue in a unanimous opinion six years ago. (Valentino v. Elliot Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692 [ 247 Cal.Rptr. 483 ] review den. Aug. 18, 1988.) In that opinion, we characterized the issue as follows: “[W]e confront a fundamental issue in the interpretation of California’s settlement incentive scheme. May costs be shifted against a prevailing party who rejected a statutory settlement offer (under Code Civ. Proc., § 998) that would have required this party to forego other lawsuits as well as dismissing the one involved in the case at trial?” ( 201 Cal.App.3d at p. 694 .) That sounds nearly identical to the issue before us in this…

*903 Opinion

Plaintiff Goodstein appeals from a September 11, 1990, order granting defendant’s motion to recover expert witness fees, awarding fees and costs of $138,421, and denying plaintiff’s motion to tax costs. On appeal, plaintiff challenges the trial court’s award of expert witness fees under Code of Civil Procedure section 998 and the cost award on several grounds.

Factual and Procedural Background

After a judgment of nonsuit was granted in favor of defendant (Bank) on Goodstein’s complaint for slander of title and negligence, 1 Bank filed a memorandum of costs in conjunction with a motion to recover expert witness fees totaling about $116,000, based on Goodstein’s rejection of Bank’s written statutory offer to compromise and his failure to obtain a judgment more favorable than the offer (Code Civ. Proc., § 998, subd. (c)).

According to declarations submitted in support of Bank’s motion, Good-stein claimed numerous items of damages exceeding $2 million in his suit against Bank, including damages for loss of business investment in Jook Box Corporation, of which Goodstein was the sole shareholder. Prior to trial, Bank designated numerous expert witnesses, including…

Plaintiff Goodstein appeals from a September 11, 1990, order granting defendant's motion to recover expert witness fees, awarding fees and costs of $138,421, and denying plaintiff's motion to tax costs. On appeal, plaintiff challenges the trial court's award of expert witness fees under Code of Civil Procedure section 998 and the cost award on several grounds.

After a judgment of nonsuit was granted in favor of defendant (Bank) on Goodstein's complaint for slander of title and negligence, [1] Bank filed a memorandum of costs in conjunction with a motion to recover expert witness fees totaling about $116,000, based on Goodstein's rejection of Bank's written statutory offer to compromise and his failure to obtain a judgment more favorable than the offer (Code Civ. Proc., § 998, subd. (c)). [2]

According to declarations submitted in support of Bank's motion, Goodstein claimed numerous items of damages exceeding $2 million in his suit against Bank, including damages for loss of business investment in Jook Box Corporation, of which Goodstein was the sole shareholder. Prior to trial, Bank designated numerous expert witnesses, including Robert Wagman and James…