Motion to Tax Costs
2/25/2014

Tentative Ruling:

Plaintiffs’ motions to strike/tax costs of the expert fees for the experts called by Merlix and Reliable as stated in their cost bills are denied. As these are the only costs challenged, judgment should be modified to reflect the costs total for each defendants’ memorandum of costs.

The basis for the motion is the one judgment or one action rule. Plaintiffs cite the case of McDaniel v. Asuncion (2013) 214 Cal. App. 4th 1201. The holding in that was that a joint offer to compromise as against all heirs in a wrongful death action was appropriate and valid, not that a separate offer as against each plaintiff was invalid. As part of the reasoning for this decision, that court stated what this court considers to be non-binding dictum at page 1208 implying that separate offers to compromise directed to separate heirs in a wrongful death action would be inappropriate because a “wrongful death action is rendered in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages, and thereafter the court apportions the award between the heirs.” Thus, the McDaniel court reasoned that a defendant’s attempt to apportion the plaintiffs’ recovery through a section 998 offer would contradict the principal that the court determine the respective rights in a wrong death award. This portion of the court’s discussion was not essential to the holding: the court merely followed the holding of Stallman v. Bell (1991) 235 Cal.App.3d 740, 746 [286 Cal. Rptr. 755] wherein the court concluded that “[w]here a single joint cause of action is given to all heirs, who must bring one action [citation], and where the judgment must be for a single lump sum even though the heirs share the damages in proportion to their loss [citation], there would appear to be little, if any, justification for invalidating a joint offer.” The holding in McDaniel is consistent with the other citations in that case that were cited as follows:

Where there is more than one plaintiff, a defendant may still extend a single joint offer if the separate plaintiffs have a “ ‘unity of interest such that there is a single, indivisible injury.’ ” (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505 [65 Cal. Rptr. 3d 185].) Additionally, “[m]ore recent cases have declined to mechanically apply a rule that renders void any joint offers without first examining whether it can be determined that the party claiming costs has in fact obtained a more favorable judgment.” (Stallman v. Bell (1991) 235 Cal.App.3d 740, 746 [286 Cal. Rptr. 755] (Stallman).)

In this case, however, the defendants extended separate offers to compromise under CCP §998 to the individual plaintiffs in a wrongful death action and then obtained a defense verdict which is clearly more favorable than the offers to compromise or request for dismissal on costs waiver.

Contrary to Plaintiffs’ contention that CCP §998 offers to compromise violates the one action rule are multiple citable authorities that demonstrate that this position is not correct. The one judgment or one action rule is meant to protect defendants from plaintiff-heirs seeking serial recoveries where some of the heirs of a decedent did not join in the original action. For this reason, the rule is not jurisdictional and its protections to the defendants may be waived. (See Cross v. Pacific Gas & Elec. Co., supra, 60 Cal.2d at p. 692; Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807–808 [62 Cal. Rptr. 2d 78].) For example, ‘a wrongful death settlement will not terminate the action if the settlement includes less than all of the named heirs. By settling with less than all of the known heirs, the defendant waives the right to face only a single wrongful death action and the nonsettling heirs may continue to pursue the action against the defendant.’ (Smith [v. Premier Alliance Ins. Co. (1995)] 41 Cal.App.4th [691,] 698 [48 Cal.Rptr.2d 461].) Similarly, if the defendant settles an action that has been brought by one or more of the heirs, with knowledge that there exist other heirs who are not parties to the action, the defendant may not set up that settlement as a bar to an action by the omitted heirs. [Citations.]” (Gonzales, supra, 77 Cal.App.4th at p. 489.) Thus, the one judgment or one action rule does not make the 998 Offers to Compromise invalid.

It has been suggested that the legislative purpose of CCP §998 is best served in multi-plaintiff cases by requiring that separate offers be prepared and served on individual plaintiffs, allowing each plaintiff an opportunity to accept or reject the offer. Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1546. This rationale is no less served by validating the separate offers in a wrongful death case since the one judgment or action rule is waived if the defendant accepts a settlement by one of the heirs.

Further, in the case of a defense verdict, such as this case, there is no difficulty for the court to determine that defendants received a more favorable judgment than their individual separate offers made to settle as to each plaintiff. Moreover, there is no logic in invalidating such offers even if the Plaintiffs had prevailed and received an award of damages since the court would be able to determine the sufficiency of each separate allocated CCP §998 offer to compromise by comparing the court’s determination of the damage allocation made to each separate plaintiff based upon the proportion of that heir’s damage to the damage suffered by the heirs as a whole.

Therefore, the court declines to follow the dictum of McDaniel v. Asuncion which seems to indicate a different result because it fails to recognize the reality of the facts of this case (total defense verdict) or the facts of a hypothetical case where a judgment is rendered in favor of the heirs.

The court does not find that the offers to compromise in this case were made in other than good faith. The exposure to asbestos created by these defendants was shown at trial to be minimal and not a significant causal factor in Mr. Rush’s death; further, the smoking history and type of cancer involved in this case showed a strong link to a difference cause for Mr. Rush’s death.