Reuser v. County of Humboldt CA1/2

Filed 1/15/16 Reuser v. County of Humboldt CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

MERLE REUSER, et al., Plaintiffs and Appellants, A142633 v. COUNTY OF HUMBOLDT, (Humboldt County Super. Ct. No. DR070176, DR070402) Defendant and Respondent.

Plaintiffs sued the County of Humboldt for maintaining a dangerous condition of public property after they crashed their motorcycles while riding together on a hilly road and were injured. A jury eventually concluded that the County was not liable. This appeal raises two discrete issues concerning the award of costs after trial: whether the trial court abused its discretion in awarding $12,028.33 in expert witness fees pursuant to Code of Civil Procedure section 998,1 where the offer to compromise was for dismissal with prejudice in return for a waiver of costs; and whether the trial court abused its discretion in holding plaintiffs jointly and severally liable for all of the costs awarded to the County, rather than apportioning costs equally among the plaintiffs. We hold that the trial court abused its discretion in awarding costs under section 998, and will modify the judgment accordingly. We also hold that the trial court did not abuse its discretion in holding plaintiffs jointly and severally liable for the remaining costs, and will affirm that portion of the judgment.

1 All further undesignated statutory references are to the Code of Civil Procedure.

1

FACTUAL AND PROCEDURAL BACKGROUND Because of the limited nature of this appeal, we set forth the facts only briefly. In June 2006, plaintiffs Merle Reuser, Patrick Fairlee, Ryan McAuley, and Mark Zimmerschied were riding their motorcycles together in an unincorporated area of Humboldt County when they crashed. In two separate lawsuits that were filed in March and May 2007, and eventually consolidated for trial, the four plaintiffs sued the County of Humboldt (the County) for premises liability, claiming that their motorcycle crash was caused by dangerous conditions on the roadway that the County had prior notice of but failed to remedy.2 On March 31, 2008, the County served each plaintiff with an offer to compromise pursuant to section 998 (998 offer) for a dismissal of plaintiffs’ cases with prejudice in return for a waiver of costs by the County. Fairlee, McAuley, and Zimmerschied rejected the offers on April 9. Reuser, who was represented by separate counsel at the time, never responded to the County’s offer. The case proceeded to trial in January 2014, by which time all four plaintiffs were represented by the same attorney. The jury returned special verdicts against each plaintiff, finding that the location in question did not constitute a dangerous condition of public property at the time of the crash. After judgment was entered in its favor, the County submitted a memorandum of costs, seeking $12,028.33 in expert witness fees pursuant to section 998, and $14,221.50 in other costs pursuant to section 1032.3 Plaintiffs moved to strike and tax the County’s memorandum of costs. They argued, among other things, that the expert witness fees should be stricken because the County’s 998 offers were made in bad faith. They also