Bui v. 4901 Centennial Partners CA5

Filed 2/7/14 Bui v. 4901 Centennial Partners CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

HAO D. BUI, F066582 Plaintiff and Appellant, (Super. Ct. No. CV-271889) v.

4901 CENTENNIAL PARTNERS, LLC et al., OPINION Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. Law Offices of Morton Minikes, Morton Minikes; Castro & Associates, Joel B. Castro and David H. Pierce for Plaintiff and Appellant. Law Offices of Craig D. Braun, Craig D. Braun; Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball and Catherine E. Bennett for Defendants and Respondents. -ooOoo-

Plaintiff Hao D. Bui filed an action seeking damages for construction defects in a building he purchased from defendants 4901 Centennial Partners, LLC et al. Following the completion of plaintiff’s evidence before a jury, the trial court granted a motion for nonsuit as to all causes of action. Plaintiff appealed the trial court’s order nonsuiting his negligence cause of action only (case No. F065656). We recently affirmed the nonsuit order in defendants’ favor. In the instant appeal, plaintiff contends the trial court erred in awarding expert costs to defendants under Code of Civil Procedure section 998.1 We agree and reverse the order awarding expert costs to defendants. DISCUSSION I. Standard of Review Where the issue on appeal involves the interpretation of a statute and the application of the statute to undisputed facts, independent or de novo review applies. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212.) Interpreting what constitutes a valid offer under section 998 is subject to review for abuse of discretion. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1113.) II. Section 998 Section 1032 sets forth the general rule allowing recovery of costs. Section 1033.5 identifies the costs that are recoverable. Fees paid to experts retained by the parties are not recoverable costs. Section 998 modifies the rule of section 1032. If a defendant makes a section 998 offer which a plaintiff refuses and thereafter fails to obtain a more favorable judgment, the plaintiff is precluded from recovering its costs after the offer was made and the defendant is entitled to recover its costs incurred after the offer was made; additionally, the trial court has discretion to order a plaintiff to pay a defendant’s expert witness costs. In relevant part, section 998, subdivision (b) provides: