Citations
- 154 Cal. App. 4th 498
Full opinion text
Opinion
NEEDHAM, J.
Gloria Peterson, individually, and as successor in interest to her deceased husband, and as his legal heir, appeals from an adverse judgment entered after a jury trial. She contends that the court erred in awarding expert witness fees to the respondent under Code of Civil Procedure section 998, on the grounds that (1) respondent’s section 998 offer was invalid because Peterson’s prosecution of claims in multiple legal capacities made her “multiple plaintiffs” for purposes of determining the validity of a settlement offer under section 998; and (2) the court did not consider the parties’ relative economic resources in deciding whether the cost award was reasonable. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Gloria Peterson and her husband, John, filed a lawsuit in April 1999 alleging that John’s asbestosis and lung cancer were asbestos related. They sued a number of manufacturers, suppliers, and users of asbestos products for his injuries, under legal theories including negligence, intentional tort, strict liability, and products liability, alleging that the defendants’ activities and products exposed John to asbestos. They also sued for Gloria’s loss of consortium. A first amended complaint for personal injury and loss of consortium was filed in July 1999.
John died in October 1999, while the litigation was pending. In March 2000, the court granted Gloria Peterson’s motion to appoint her as the successor in interest to John’s claims, “substituting her for [the] deceased plaintiff,” and granted her leave to file a second amended complaint.
A. The Second Amended Complaint
In her “SECOND AMENDED COMPLAINT FOR SURVIVAL, LOSS OF CONSORTIUM, WRONGFUL DEATH—ASBESTOS,” Gloria Peterson continued to pursue her individual claim for loss of consortium, added survivor claims as John’s successor in interest, and also added wrongful death claims as John’s legal heir.
The caption of the second amended complaint identified Gloria Peterson, in all of her various capacities, as the singular “Plaintiff” in the case: “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Deceased; and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, [$] Plaintiff.” In addition, allegations of the second amended complaint consistently referred to the “plaintiff,” singular and to plaintiff’s “injury,” singular. The prayer sought judgment for “plaintiff.”
Similarly, the caption of Peterson’s verified answers to standard asbestos case interrogatories indicated that Gloria Peterson, in all her capacities, was the “Plaintiff.” She referred to herself as the singular “plaintiff” throughout that document and did not contend there was more than one plaintiff. The verification stated: “I, Gloria Peterson, declare: [f] I am the plaintiff in the above-entitled action.” (Italics added, underscoring omitted.) She signed the verification once, as “Gloria Peterson.”
B. John Crane’s Section 998 Offers
Respondent John Crane, Inc. (John Crane), extended two settlement offers under section 998, both after the filing of the second amended complaint.
The first section 998 offer, dated October 30, 2002, was directed to “GLORIA PETERSON, PLAINTIFF, AND TO HER ATTORNEYS OF RECORD.” John Crane offered to waive its costs, “including, but not limited to, any and all expert witness fees, in exchange for a dismissal with prejudice, and plaintiff’s agreement to bear her own costs.” (Italics added.) In this offer, therefore, John Crane indicated there was only one plaintiff. The offer was not accepted.
John Crane’s second section 998 offer, dated April 30, 2004, was more specifically directed to Gloria Peterson in all of her capacities, as “plaintiffs”: “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Decedent, and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, Plaintiffs, AND TO THEIR ATTORNEYS OF RECORD.” (Italics added.) The caption identified Gloria Peterson, in all her capacities, as “Plaintiffs.” The essential term of the offer was the same as the first section 998 offer, except that it referred to “plaintiffs”: “Defendant, JOHN CRANE INC., in the above entitled action pursuant to Section 998 of the California Code of Civil Procedure hereby offers a waiver of costs, including, but not limited to, any and all expert witness fees, in exchange for a dismissal with prejudice, and plaintiffs’ agreement to bear their own costs.” (Italics added.) This offer also expired without acceptance.
C. Trial
The case proceeded to trial by jury. During his opening statement, Peterson’s attorney asked rhetorically: “Who is the plaintiff and who was the decedent?” Counsel answered: “The plaintiff in this case is Gloria Peterson. Ms. Peterson is here with us today. She is back in the courtroom.”
At the conclusion of the case, the jury was provided with a special verdict form, agreed upon by plaintiff, which referred consistently to the plaintiff, singular, except on one occasion: “Question No. 3: Was the defect in design a cause of injury, damage, loss or harm to the decedent and thereby to the plaintiff? [