Bush

DISCUSSION

A. Defendant's Ability To Challenge the Ruling on the Motion To Tax Costs

Plaintiffs contend defendants are barred, based on principles of res judicata and

law of the case, from asserting that the unapportioned section 998 offer was invalid

because defendants did not separately appeal from the judgment establishing that their

liability was joint and several. However, for the purpose of evaluating the validity of an

unapportioned section 998 offer, a defendant's liability is determined from the allegations

of the pleadings at the time the offer was made. (See, e.g., Burch v. Children's Hospital

3 of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548-551 (Burch)

[finding that because the allegations of the complaint at the time plaintiff's section 998

offer was made did not unequivocally establish the defendants' joint and several liability,

plaintiff's unapportioned section 998 offer was invalid, even though defendants later

admitted joint and several liability].) The fact that the judgment in this case may have

established the defendants' liability as joint and several is thus irrevelant. Accordingly,

we…