KUMAR, J.
Plaintiffs and appellants
We hold that because there was a sufficient unity of interest between and among plaintiffs, the trial court correctly concluded that the section 998 offers were valid and supported the award of expert witness fees as costs. We therefore affirm the order denying plaintiffs' motions to tax costs and granting expert witness fees as cost.
In 2008, the original plaintiffs
On April 1, 2011, defendant Arrow Concrete Cutting, Inc. served on plaintiffs a lump sum $10,000 offer to settle the action against it under section 998. In an undated document, defendants Santa Monica Investments, LLC, Arrow Concrete Cutting, Inc., and other defendants not involved in this appeal served a lump sum $50,000 offer to settle the action against them under section 998. On April 6, 2011, defendants Santa Monica Investments, LLC, Arrow Concrete Cutting, Inc., and a third defendant not involved in this appeal served a lump sum $50,000 offer to settle the action against them under section 998.
In November 2014, the trial court entered an order dismissing plaintiffs' amended complaint. That order provided: "IT IS HEREBY ORDERED that because trial did not commence before the expiration of the statutory five-year period as set forth in Code of Civil Procedure section 583.310, and because no exceptions set forth in Code of Civil Procedure section 583.340 exist in the present case, the [m]otions to [d]ismiss are hereby granted pursuant to Code of Civil Procedure section 583.360. The defaults entered as to [d]efendants Caro Jolfaie Minas and Applied Earth Sciences are hereby set aside and [p]laintiffs' [a]mended [c]omplaint is hereby dismissed with prejudice." Based on that order, the trial court entered a judgment of dismissal with prejudice in favor of defendants and others.
Following entry of judgment, defendants filed their respective cost bills seeking, inter alia, expert witness fees pursuant to section 998. In response, plaintiffs filed motions to tax costs, but did not argue that the section 998 offers were defective because they were directed to all plaintiffs. Defendants filed oppositions to the motions to tax costs, raising certain procedural defects in the motions and arguing that the requested expert witness fees were authorized because valid and enforceable section 998 offers had been served. In their reply briefs, plaintiffs argued for the first time that the section 998 offers were defective because they were not made to each individual plaintiff.
In January 2015, the trial court held a hearing on the motions to tax costs and, after argument, took the matter under submission. The next day, the trial court issued a minute order denying the motions. On the issue of whether the section 998 offers were defective because they were not made to plaintiffs individually, the trial court ruled that "[plaintiff] 3123 SMB, LLC's objections to it being jointly and severally liable for the costs awarded is overruled as it entered the action as successor in interest to another plaintiff and joined in the operative complaint without separating itself in any manner, viz., each cause of action is alleged by all plaintiffs. [¶] . . . [¶] The plaintiffs' claim that the 998 offers were improperly made is not supported by the authorities presented by plaintiffs and is otherwise without merit."
In February 2015, the trial court issued a formal order denying the motions to tax costs. Notice of entry of that order was served on April 2, 2015, and plaintiffs filed their notice of appeal from that order on April 20, 2015.
"In reviewing a trial court's award of costs pursuant to section 998, the appropriate standard of review is abuse of discretion. (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877 [119 Cal.Rptr.3d 714].) The party appealing the trial court's decision to award costs bears the burden `"to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [86 Cal.Rptr. 65, 468 P.2d 193].) To meet its burden, a complaining party must therefore show that the trial court exercised its discretion in an `arbitrary, capricious or patently absurd manner.' (Najera, at p. 877.)" (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1482.)
But, we review de novo the trial court's award of expert witness costs under section 998 when the facts are undisputed and the issue involves the application of section 998 to those facts. (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 797 ["[T]he issue here is the application of section 998 to an undisputed set of facts. That issue is one of law, which we review de novo"]; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 999 ["[I]n the present case the relevant facts are undisputed. . . . Thus, the case raises a pure question of law involving the interpretation and applicability of . . . Code of Civil Procedure section 998"].)
"Section 998 allows for any party in a civil suit to serve a settlement offer [on] any other party before the commencement of trial. (Fn. omitted.) Section 998, subdivision (c)(1) provides that `[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, . . . the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses . . . actually incurred and reasonably necessary in . . . preparation for trial or arbitration . . . of the case by the defendant.' (Fn. omitted.)" (Adams v. Ford Motor Co., supra, 199 Cal.App.4th at pp. 1482-1483.)
As a general rule, a single, indivisible offer made to more than one plaintiff is not considered valid under section 998 because it would require the plaintiff offerees to agree to a division of the settlement proceeds or to an allocation of those proceeds to the various causes of action in issue. (Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791 (Meissner) ["only an offer made to a single plaintiff, without need for allocation or acceptance by other plaintiffs, qualifies as a valid offer under section 998"].)
"Nevertheless, there is an exception to this general rule. 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].) . . . [¶] Generally, where courts have required apportionment of a section 998 offer made to multiple plaintiffs, the offerees have either had different causes of action against the offeror or the potential for separate verdicts and varying recoveries on a single cause of action. (Cf. Menees v. Andrews (2004) 122 Cal.App.4th 1540 [19 Cal.Rptr.3d 664]; Meissner[, supra,] 212 Cal.App.3d 785 [260 Cal.Rptr. 826] . . .; Randles v. Lowry (1970) 4 Cal.App.3d 68 [84 Cal.Rptr. 321].) As noted by the court in Meissner, such an offer inherently necessitates agreement between the plaintiffs as to apportionment between them. (Meissner, supra, 212 Cal.App.3d at p. 791.)" (McDaniel v. Asuncion (2013) 214 Cal.App.4th 1201, 1206.)
The offers in this case were lump sum offers that did not differentiate between and among plaintiffs or their various causes of action. But, as explained above, each of the three causes of action asserted in the complaint was asserted by all plaintiffs and the damages sought by plaintiffs were all the same. Thus, as pleaded, the action did not present the potential for separate verdicts or varying recoveries on any cause of action. If the allegations of the complaint were proved at trial, the damage award for each plaintiff would have been the same. As the trial court noted, 3123 SMB, LLC was added as a successor in interest to another plaintiff. It did not assert any new or different claims than those already asserted in the complaint and instead "it joined in the operative complaint without separating itself in any manner, viz., each cause of action [was] alleged by all plaintiffs." The trial court therefore correctly concluded that because there was a sufficient unity of interest between and among the plaintiffs, the section 998 offers were valid and enforceable.
The order denying plaintiffs' motions to tax the expert witness fees costs and awarding those costs is affirmed. Defendants are awarded costs on appeal.
KRIEGLER, Acting P. J. and BAKER, J., concurs.