Filed 6/17/15 Horn v. Rand CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

STEVEN J. HORN,

Plaintiff and Appellant,

v.

MICHAEL J. RAND,

Defendant and Respondent. B255051

(Los Angeles County Super. Ct. No. BC474177)

APPEAL from an order of the Superior Court of Los Angeles, Michael Johnson, Judge. Affirmed.

Law Offices of Howard A. Kapp and Howard A. Kapp fo r Plaintiff and Appellant. Reback, McAndrews, Kjar, Warford, Stoc kalper & Moore, James J. Kjar, Cindy A. Shapiro, Michael H. Cooper, for Defendant and Respondent.

___________________2 Plaintiff and Appellant Steven J. Horn appeals from the trial court’s postjudgment order awarding defendant and respondent Mi chael J. Rand expert witness fees under

Code of Civil Procedure section 998. 1 Prior to trial, Horn failed to accept Rand’s section 998 offer to settle Horn’s legal malpractice claim or accept Rand’s offer to settle on his cross-complaint for unpaid a ttorney fees. The cross-co mplaint was later dismissed without prejudice at trial. The jury return ed a verdict finding Rand was not negligent in his legal representation of Horn. Rand filed a memorandum of costs seeking, among other expenses, expert witness fees as Horn failed to obtain a judgment more favorable

than his section 998 offer. Horn contends on appeal that the trial c ourt abused its discretion in awarding Rand expert witness fees because (1) the section 998 offer was made in bad faith and (2) the trial court should have concurrently cons idered Rand’s section 998 offer on the crosscomplaint in determining whethe r Rand’s offer to settle on th e complaint was reasonable.

We conclude Rand’s secti on 998 offer on the complaint was reasonable and made in good faith. Moreover, the trial court did not abuse its discretion in determining that the two concurrently served section 998 offers we re not “one offer,” as Horn suggests. We therefore affirm the postjudgment order.

PROCEDURAL HISTORY 2

Horn’s complaint alleged a single claim of legal malpractice against Rand for his representation of Horn in a pr ior legal malpractice action. Rand answered the complaint

1 All further statutory references are to the Code of Civil Procedure, unless otherwise noted.

2 We only recount the procedural history as the facts at trial are not relevant to the issues raised on appeal.3 and filed a cross-complaint seeking approximat ely $75,000 in unpaid attorney fees. Horn

answered the cro ss-complaint. Prior to trial, Rand served Horn with a section 998 offe r to settle the complaint for $25,000. The offer stated in pertinent pa rt: “Defendant, MICHAEL J. RAND, in his capacity as Defendant only, hereby offers to compromise the here in Complaint, only, brought by Plaintiff STEVEN J. HORN, in his capacity as Plaintiff only, for the single total sum of Twenty Five Thousand Dollars and 00/Cents ($25,000.00). Through this Offer, Plaintiff and Defendant ag ree to bear their own attorneys’ fees and costs related solely to Plaintiff’s Co mplaint.” It went further on to st ate that, “This offer is unrelated to, and does not in any way affect the Cro ss-Complaint herein by Cross-Complainant, MICHAEL J. RAND, as against Cro ss-Defendant, STEVEN J. HORN.” That same day, Rand served a section 998 offer to settle th e cross-complaint for $59,900. The offer stated in pertinent pa rt: “Cross-Complainant, MICHAEL J. RAND, . . . in his capacity as Cross-Co mplainant, only, offers to have judgment entered under . . . section 998 in favor of Cross-Complainant, MICHAEL J. RAND, . . . and against CrossDefendant[], STEVEN J. HORN . . . in the amou nt of Fifty Nine Thousand Nine Hundred Dollars and 00/Cents ($59,900.00 ). [¶] Each party shall bear [his] own attorney fees and costs related solely to the Cr oss-Complaint.” The offer on the complaint wa s served by Rand’s counsel, while the o ffer on the cross-complaint wa s served by Rand in propria persona. Horn never responded to either offe r, both of which expired by operation of law 30 days later. (See § 998.) At trial, Rand voluntarily moved to dism iss the cross-complain t without prejudice. The trial court dismissed Rand’s cross-compla int and only Horn’s legal malpractice claim proceeded to trial. Th e jury returned a verdict in favor of Rand and against Horn, making an affirmative finding that Rand was not neg ligent in his represen tation of Horn on the underlying malpractice case. The trial cour t entered judgment in favor of Rand and ordered Horn to take nothing. The no tice of entry of judgment was filed.

Rand filed his memorandum of costs refl ecting total claimed costs of $100,898.09,4 which included $65,476 in expert w itness fees pursuant to section 998. 3 Horn filed a motion to strike Rand’s memorandum of costs, or alternatively, to tax costs. Horn argued that Rand’s section 998 offer “was merely a ‘token’ offer and was not made in good faith

or with the intent to settle.” He further argued, “[t]he offer was nothing more than a litigation tactic made solely in an effort to seek expert witness fees . . . .” In his opposition to the motion to tax, Ra nd contended $25,000 is hardly a token offer when the jury re turned a verdict agains t Horn and found that Horn was entitled to take nothing. The result of the trial constitu ted prima facie evidence that the offer was reasonable. Additionally, Rand’s $25,000 offe r was made less than three months before trial, “after the case had been pending for nearly a year and a half, after substantial discovery and deposition, and af ter expert consultation, review , analysis, and opinion.” In his reply, Horn argued the offer wa s not made in good faith because “based upon these facts, in orde r to accomplish the objective of [section 998] and end the litigation, [Horn] would have been required to accept th e ‘package deal.’ He would have had to accept [Rand]’s offer of $25,000.000, and then ac cept the offer on the crosscomplaint for the sum of $59,900.00 thereby paying to [Rand] the net out-of-pocket sum of $34,900.00.” At the hearing on Horn’s motion to tax costs, Horn’s counsel argued the section 998 offer of $25,000 on the complaint was no t reasonable because the trial court denied Rand’s summary judgment motion and sust ained “every single one of [Horn’s evidentiary] objections.” He further agued th e section 998 offer repr esents seven percent of the damages alleged in the complaint. Th e trial court ruled that Horn’s argument had no merit. The court explained that “[t]he purpose of [section] 998 would have been

served even if Rand’s offer did not co mpletely end the case; judgment on Horn’s malpractice claim would ha ve eliminated a major cl aim and narrowed the trial considerably. Additionally, Horn offers no persuasive explanation as to why Rand’s

3 Horn also filed a memorandum of cost s on the cross-complain t and Rand filed a motion to strike Horn’s memorandum of costs. However, that is not at issue on appeal.5 offer was unreasonably low. Indeed, the trial result is prima facie ev idence that the offer

was reasonable. See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264. Rand is entitled to expert witness fees.” Horn file d a timely notice of appeal from the court’s postjudgment order. While this appeal was pending, we affi rmed the judgment in favor of Rand and against Horn for the lega l malpractice action. ( Horn v. Rand (Mar. 9, 2015, B252044) [nonpub. opn.].)

DISCUSSION

Legal Principles

Section 998 grants the trial court discre tion to award expert witness fees to a defendant when the plai ntiff rejects the defendant’s reas onable pretrial settlement offer and fails to obtain a more favorable judgment. 4 (§ 998, subd. (c)(1).) Section 998’s purpose is to encourage pretrial settle ments “‘“by providi ng a strong financial disincentive to a party . . . who fails to achi eve a better result than that party could have achieved by accepting his or her opponent’s settlement offer.” [Citation.]’ ( Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 330.)” ( People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, 1270-1271; see

Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 470-471 ( Hartline ).)

4 Section 998, subdivision (c)(1), provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fail s to obtain a more favorable judgment or award, the plaintiff shall not recover hi s or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, . . . th e court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular empl oyees of any party, actually incurred and reasonably necessary in either, or both, prepara tion for trial or arbitration, or during trial or arbitration, of the case by the defendant.”6 “To effectuate the purpose of the statute, a section 998 offer must be made in good faith to be valid. ( Wear v. Calderon (1981) 121 Cal.App.3d 818, 821 [].) Good faith requires that the pretrial offer of settleme nt be ‘realistically reasonable under the circumstances of the particular case. Normal ly, therefore, a token or nominal offer will not satisfy this good faith requirement, . . .’ ( Id. at p. 821.) The offer ‘must carry with it some reasonable prospect of acceptance. [Citation.]’ ( Elrod v. Oregon Cummins Diesel,

Inc. (1987) 195 Cal.App.3d 692, 698 ( Elrod ).) One having no expect ation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees. ( Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63 [].)” ( Jones v. Dumrichob, supra, 63 Cal.App.4th at pp. 1262-1263.)

The reasonableness of a section 998 o ffer is judged by examining the circumstances existing at the time the offer was made. ( Hartline, supra, 132 Cal.App.4th at p. 471, citing Elrod, supra, 195 Cal.App.3d at p. 699.) “Whether an offer to compromise is made in good faith, howeve r, cannot be measured by the amount of claimed damages or a party’s subjective belie f in the case’s valu e. An offer to compromise may be ‘realistically reasonable’ and justify cost shifting even though the party receiving the offer is unlikely to accept it as a consequence of the party’s skewed valuation of the case.” ( Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1530 ( Essex ).) “‘[W]hen a party obtains a judgment more favorable th an its pretrial offer, [the offer] is presumed to have been reasonable and the oppos ing party bears the burden of showing otherwise.’ ( Thompson v. Miller (2003) 112 Cal.App.4th 327, 338-339; accord,

Hartline [ , supra, ] at p. 471.)” ( Essex, supra, at p. 1528.)

“‘“Whether a section 998 offer was reasonabl e and made in good fa ith is left to the sound discretion of the trial court.” [Citation. ] “In reviewing an award of costs and fees under . . . section 998, the appellate court w ill examine the circumstan ces of the case to

determine if the trial court abused its disc retion in evaluating the reasonableness of the offer or its refusal.” [Citati on.] ‘“The burden is on the part y complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a7 miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. [Citations.]”’ [Citation. ]’ [Citation.]” ( Essex,

supra, 186 Cal.App.4th at pp. 1528-1529.)

Analysis

Horn contends the s ection 998 offer on the co mplaint for $25,000 was unreasonably low and was no more than “gamesmanship” on th e part of Rand. He also

contends Rand’s secti on 998 offer on the cross-complaint should have been considered with the offer on the complaint as “one offer” for the pur poses of determining whether the offer was reasonable. We disagree. In evaluating the reasonableness of a section 998 settlement offer, courts must look to how well the offer approximates th e amount the defendant would pay if found liable, discounted by an appropriate factor for the plaintiff’s likelihood of success. ( Thompson v. Miller, supra, 112 Cal.App.4th at p. 339, fn. 4.) “[ A] ‘“modest settlement offer” may be in good faith if it is believe d the defendant has a significant likelihood of prevailing at trial.’ ( Jones [ v. Dumrichob ] , supra, 63 Cal.App.4th at p. 1264.)” ( Essex,

supra, 186 Cal.App.4th at p. 1529 .) For example, a defendant’s offer to waive costs can be a reasonable, good faith settlement offer under section 998 when a plaintiff’s claims have little likelihood of success. (See, e.g., Essex, at pp. 1528–1530; Jones v. Dumrichob, supra, 63 Cal.App.4th at pp. 1263-1264; Hartline, supra, 132 Cal.App.4th at pp. 471-473.) Horn makes no attempt to address his lik elihood of success despite bearing the

burden to show the trial court abused its disc retion in finding the offer was reasonable. ( Essex, supra, 186 Cal.App.4th at p. 1529; Jones v. Dumbrichob, supra, 63 Cal.App.4th at p. 1264.) Horn contends the section 998 offer on the complaint was unreasonable

because the trial court denied Rand’s motion for summary ju dgment and sustained Horn’s evidentiary objections to all of the opinions pr offered in the declaration of Rand’s expert witness. However, these circumstances are of little importance because Rand’s section8 998 offer to settle was served after the court’s ruling. ( Hartline, supra, 132 Cal.App.4th at p. 471 [a section 998 o ffer’s reasonableness must be judged by examining the circumstances existing at the time the offer wa s made].) Moreover, the trial court also

denied Horn’s motion for su mmary judgment that same da y. Without more evidence demonstrating the likelihood of success of his legal malpractice claim at the time of the section 998 offer, we hold the trial court di d not abuse its discretion in finding Rand’s

offer reasonable.

Horn further contends that the offe r was unreasonable low because it was only seven percent of his alleged damages in his co mplaint. This contention has no merit. Horn argues but for Rand’s negligence in his prior legal malpractice action, he would not have been ordered to pay the opposing party over $400,000 in attorney fees. However, whether an offer to compromise is made in good faith cannot be measured merely by the amount of claimed damages. (See Essex, supra, 186 Cal.App.4th at p. 1530.) Here, the trial judge heard all of the evidence and was certainly in the best position to evaluate Rand’s $25,000 offer to Horn and conclude that it was reasonable. The court’s ruling expressly stated: “This was a very problema tic case for Mr. Horn. He kept losing at every turn; and in this case, he had an ex traordinary uphill battle. So under all those circumstances, the offer was reasonable.” The legal malpractice action resulted in a verdict against Horn on the issu e of liability. For that reas on alone, the offer must be regarded as prima facie reasonable. ( Jones v. Dumbrichob, supra, 63 Cal.App.4th at p. 1264 [appellate court is not obligated to ig nore the fact that the respondent prevailed at trial, noting the trial result constitutes “p rima facie evidence that the offer was

reasonable” and the burden is on th e appellant to prove otherwise].) Horn dedicates much of his appellate br iefs to the argument that the section 998 offer on the complaint and cro ss-complaint should have been considered “one offer” in determining its reasonableness. Horn’s fa ils to cite any case law to support his contention and we find the case law inappos ite to his position. Generally, a complaint and cross-complaint are treated as independent actions. ( Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134.) Th erefore, the resolution of Horn’s9 legal malpractice action against Rand was no t dependent upon a re solution of Rand’s cross-complaint for unpaid attorney’s fees. ( Id. at p. 132.) Section 998 does require a global settlement that reso lves both a complaint and cross complaint. (See Id. at p. 130.) It is undisputed that one of Rand’s section 998 offers addressed only the complaint while the other addressed only the cross-complaint. Neither of the section 998 offers were contingent on the other and each offer was valid to trigger the provisions of section 998 as to a separate action. We hold the trial court did not err in only considering Rand’s section 998 offer on the complaint when evaluating his expert witness fees.

DISPOSITION

The postjudgment order is af firmed. Costs on appeal are awarded to defendant and respondent Michael J. Rand.

KRIEGLER, J.

We concur:

TURNER, P. J.

KIRSCHNER, J. *

* Judge of the Los Angeles County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.