[Supp. 9]*Supp. 9Opinion
COUZENS, P. J.
In this appeal we examine that relatively rare circumstance where a jury verdict is returned in an amount that falls between offers to compromise made by plaintiff and defendants under Code of Civil Procedure section 998.1
Factual Background
Plaintiff filed an action to recover damages for personal injury arising out of an auto accident on December 11, 1982. Defendants filed an offer to compromise the case pursuant to section 998 for $2,755. Plaintiff filed a similar offer for $6,999. Neither offer was accepted. In the ensuing jury trial, a verdict of $2,400 was returned in favor of plaintiff. The trial court awarded costs to plaintiff in the sum of $2,667.81. Defendants appeal from that portion of the judgment which awarded costs. We will affirm the judgment, with a modification of costs awarded.
Discussion
Defendants contend (1) that plaintiff was not the “prevailing party” under section 1031; (2) that the trial court improperly added certain preoffer costs to the jury verdict to provide plaintiff “a more favorable judgment” than defendants’ section 998 offer; (3) that neither party “prevailed” and, therefore, the costs should be equitably apportioned between the parties; and (4) that certain specific costs were improperly allowed. We reject all but a portion of the last contention.
I
The awarding of costs in municipal or justice court actions is controlled initially by section 1031. That section provides that “[t]he prevailing party . . . is entitled to his costs and necessary disbursements.” Defendants argue that since the jury’s verdict of $2,400 was less than defendants’ section 998 offer of $2,755, plaintiff cannot be considered the “prevailing party.” Defendants are wrong. The “prevailing party” is simply that party in whose favor the judgment is entered. (See Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 350 [145 Cal.Rptr. 47]; Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33, 52 [162 Cal.Rptr. 238]; Strickland v. Becks (1979) 95 Cal.App.3d Supp. 18 [157 Cal.Rptr. 656]; 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 84, p. 3245.) Plaintiff in the present action claimed monetary damages; defendants denied them; the jury agreed [Supp. 10]*Supp. 10with plaintiff. Plaintiff clearly “prevailed” in the action. The concept of “prevailing party” bears no relationship to the “more favorable judgment” language contained in section 998. As we shall discuss below, section 998 supplements section 1031, but does not define its terms. Costs, therefore, were allowable to plaintiff under section 1031, subject to adjustment pursuant to the provisions of section 998.
II
Section 9982 provides initially that “costs allowed under Sections 1031 and 1032 shall be withheld or augmented” as provided in that section. Since each party is permitted to submit offers to take judgment “in accordance with the terms and conditions stated at that time,” it is appropriate to review the terms of the offers made by each party in light of the jury’s verdict. Such an analysis will determine whether plaintiff’s section 1031 costs should be “withheld or augmented.”
Plaintiff offered to take judgment against defendants for the sum of $6,999, each party to bear its own costs and fees. “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment,” the court can compel the defendant to pay certain expert witness costs. (§ 998, subd. (d).) Since the jury’s verdict was less than $6,999, the defendants did obtain a more favorable judgment. Accordingly, section 998, subdivision (d) will not modify the award of costs specified by section 1031.
Defendants offered to take judgment against them for “$2,755.00, which sum includes taxable costs incurred to date of judgment.” (Italics added.) “If an offer made by a defendant is not accepted and the plaintiff fails to [Supp. 11]*Supp. 11obtain a more favorable judgment, the plaintiff shall not recover his costs and shall pay the defendant’s costs from the time of the offer.” (§ 998, subd. (c).) Since defendants’ offer includes consideration of taxable costs, we look not only to the amount of the jury award of damages but also to those costs which otherwise would be allowable to plaintiff under section 1031, as of the date of the offer. (Shain v. City of Albany (1980) 106 Cal.App.3d 294, 299 [165 Cal.Rptr. 69]; Bennett v. Brown (1963) 212 Cal.App.2d 685, 688-689 [28 Cal.Rptr. 485].)
Defendants’ offer was made April 13, 1984. As of that date plaintiff had accrued the following costs: filing fee, $42; service fees, $19.05; and deposition fees, $329.3 The total costs of $390.05, when added to the jury’s verdict of $2,400, exceeds defendants’ section 998 offer by $35.05. Since plaintiff did obtain a more favorable judgment than the offer, the provisions of section 998, subdivision (c) will not modify the award of costs specified by section 1031.
When, as in the present case, both parties obtain judgments more favorable than their opponents’ section 998 offers, there is neither an augmentation or reduction of the costs normally allowed by sections 1031 and 1032. Rather, the allowance of costs is limited solely to the provisions of those sections. Defendants’ suggestion that the court equitably apportion the costs between the parties is contrary to the well established principle that the allowance of costs is strictly a matter of statute and is to be limited by such authority. (Williams v. Atchison etc. Ry. Co. (1909) 156 Cal. 140, 141 [103 P. 885]; Duncan v. Torney (1932) 125 Cal.App. 207, 209 [13 P.2d 765].) Since plaintiff “prevailed” under section 1031 and “obtained a more favorable judgment” than defendants’ section 998 offer, it is clearly inappropriate to require plaintiff to pay any of defendants’ costs or to reduce any of the costs normally allowable to plaintiff under section 1031.
III
Finally, defendants challenge the trial court’s decision to award specified costs for witnesses Nativo and Stresser as either excessive or entirely inappropriate.
A. Witness Nativo. Plaintiff claims $675 paid as a witness fee to Nativo for his attendance at a deposition. Plaintiff argues that Nativo, a [Supp. 12]*Supp. 12physical therapist, was listed as a defense expert and that the fee was reasonably necessary in order to take his deposition. While the entire fee was necessary as a practical matter in order to take the deposition, nevertheless it is not an allowable cost to the extent it exceeds the ordinary statutory witness fee.
The allowance of costs of depositions is generally governed by section 1032.7: “Any person allowed costs under the provisions of this chapter shall, in addition to other costs, be entitled to the reasonable cost of taking and transcribing depositions. ...” Ordinarily the allowance of costs is a matter firmly within the court’s discretion and any award will not be reversed absent a showing of abuse of that discretion. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113 [194 Cal.Rptr.
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[Supp. 9]*Supp. 9Opinion
COUZENS, P. J.
In this appeal we examine that relatively rare circumstance where a jury verdict is returned in an amount that falls between offers to compromise made by plaintiff and defendants under Code of Civil Procedure section 998.1
Factual Background
Plaintiff filed an action to recover damages for personal injury arising out of an auto accident on December 11, 1982. Defendants filed an offer to compromise the case pursuant to section 998 for $2,755. Plaintiff filed a similar offer for $6,999. Neither offer was accepted. In the ensuing jury trial, a verdict of $2,400 was returned in favor of plaintiff. The trial court awarded costs to plaintiff in the sum of $2,667.81. Defendants appeal from that portion of the judgment which awarded costs. We will affirm the judgment, with a modification of costs awarded.
Discussion
Defendants contend (1) that plaintiff was not the “prevailing party” under section 1031; (2) that the trial court improperly added certain preoffer costs to the jury verdict to provide plaintiff “a more favorable judgment” than defendants’ section 998 offer; (3) that neither party “prevailed” and, therefore, the costs should be equitably apportioned between the parties; and (4) that certain specific costs were improperly allowed. We reject all but a portion of the last contention.
I
The awarding of costs in municipal or justice court actions is controlled initially by section 1031. That section provides that “[t]he prevailing party . . . is entitled to his costs and necessary disbursements.” Defendants argue that since the jury’s verdict of $2,400 was less than defendants’ section 998 offer of $2,755, plaintiff cannot be considered the “prevailing party.” Defendants are wrong. The “prevailing party” is simply that party in whose favor the judgment is entered. (See Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 350 [145 Cal.Rptr. 47]; Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33, 52 [162 Cal.Rptr. 238]; Strickland v. Becks (1979) 95 Cal.App.3d Supp. 18 [157 Cal.Rptr. 656]; 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 84, p. 3245.) Plaintiff in the present action claimed monetary damages; defendants denied them; the jury agreed [Supp. 10]*Supp. 10with plaintiff. Plaintiff clearly “prevailed” in the action. The concept of “prevailing party” bears no relationship to the “more favorable judgment” language contained in section 998. As we shall discuss below, section 998 supplements section 1031, but does not define its terms. Costs, therefore, were allowable to plaintiff under section 1031, subject to adjustment pursuant to the provisions of section 998.
II
Section 9982 provides initially that “costs allowed under Sections 1031 and 1032 shall be withheld or augmented” as provided in that section. Since each party is permitted to submit offers to take judgment “in accordance with the terms and conditions stated at that time,” it is appropriate to review the terms of the offers made by each party in light of the jury’s verdict. Such an analysis will determine whether plaintiff’s section 1031 costs should be “withheld or augmented.”
Plaintiff offered to take judgment against defendants for the sum of $6,999, each party to bear its own costs and fees. “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment,” the court can compel the defendant to pay certain expert witness costs. (§ 998, subd. (d).) Since the jury’s verdict was less than $6,999, the defendants did obtain a more favorable judgment. Accordingly, section 998, subdivision (d) will not modify the award of costs specified by section 1031.
Defendants offered to take judgment against them for “$2,755.00, which sum includes taxable costs incurred to date of judgment.” (Italics added.) “If an offer made by a defendant is not accepted and the plaintiff fails to [Supp. 11]*Supp. 11obtain a more favorable judgment, the plaintiff shall not recover his costs and shall pay the defendant’s costs from the time of the offer.” (§ 998, subd. (c).) Since defendants’ offer includes consideration of taxable costs, we look not only to the amount of the jury award of damages but also to those costs which otherwise would be allowable to plaintiff under section 1031, as of the date of the offer. (Shain v. City of Albany (1980) 106 Cal.App.3d 294, 299 [165 Cal.Rptr. 69]; Bennett v. Brown (1963) 212 Cal.App.2d 685, 688-689 [28 Cal.Rptr. 485].)
Defendants’ offer was made April 13, 1984. As of that date plaintiff had accrued the following costs: filing fee, $42; service fees, $19.05; and deposition fees, $329.3 The total costs of $390.05, when added to the jury’s verdict of $2,400, exceeds defendants’ section 998 offer by $35.05. Since plaintiff did obtain a more favorable judgment than the offer, the provisions of section 998, subdivision (c) will not modify the award of costs specified by section 1031.
When, as in the present case, both parties obtain judgments more favorable than their opponents’ section 998 offers, there is neither an augmentation or reduction of the costs normally allowed by sections 1031 and 1032. Rather, the allowance of costs is limited solely to the provisions of those sections. Defendants’ suggestion that the court equitably apportion the costs between the parties is contrary to the well established principle that the allowance of costs is strictly a matter of statute and is to be limited by such authority. (Williams v. Atchison etc. Ry. Co. (1909) 156 Cal. 140, 141 [103 P. 885]; Duncan v. Torney (1932) 125 Cal.App. 207, 209 [13 P.2d 765].) Since plaintiff “prevailed” under section 1031 and “obtained a more favorable judgment” than defendants’ section 998 offer, it is clearly inappropriate to require plaintiff to pay any of defendants’ costs or to reduce any of the costs normally allowable to plaintiff under section 1031.
III
Finally, defendants challenge the trial court’s decision to award specified costs for witnesses Nativo and Stresser as either excessive or entirely inappropriate.
A. Witness Nativo. Plaintiff claims $675 paid as a witness fee to Nativo for his attendance at a deposition. Plaintiff argues that Nativo, a [Supp. 12]*Supp. 12physical therapist, was listed as a defense expert and that the fee was reasonably necessary in order to take his deposition. While the entire fee was necessary as a practical matter in order to take the deposition, nevertheless it is not an allowable cost to the extent it exceeds the ordinary statutory witness fee.
The allowance of costs of depositions is generally governed by section 1032.7: “Any person allowed costs under the provisions of this chapter shall, in addition to other costs, be entitled to the reasonable cost of taking and transcribing depositions. ...” Ordinarily the allowance of costs is a matter firmly within the court’s discretion and any award will not be reversed absent a showing of abuse of that discretion. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113 [194 Cal.Rptr. 512].) We find, however, that the matter of expert witness fees for attendance at a deposition is strictly limited by Government Code section 68092.5, subdivision (a): “A person who is not a party to the action and who is required to testify before any court... or in the taking of a deposition, in any civil action or proceeding, solely as to any expert opinion which he holds . . . shall receive reasonable compensation for his entire time required to travel to and from the . . . place of taking such deposition. . . . [S]uch fees shall be paid by the party requiring such witness to attend, but such fees shall not be allowable costs or disbursements. ”4 (Italics added.)
Plaintiff’s reliance on section 2037.75 as authority for allowing such expenses as costs is misplaced. While that section clearly requires a party to pay a fee when taking the deposition of an opposing party’s expert witness, such a requirement is not consistent with Government Code, section 68092.5, subdivision (a). Unlike section 68092.5, subdivision (a), section 2037.7 contains no reference to the fee being taxable as a cost. Section 68092.5 being the more specific provision relating to allowance of expert [Supp. 13]*Supp. 13witness fees as costs, that section controls. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].) Accordingly, the trial court erred in allowing the $675 expert witness fee.
It is both appropriate and reasonable, however, to allow as a cost the ordinary statutory witness fee authorized by Government Code section 68093.6 (See 1 Hogan, Modern Cal. Discovery (3d ed. 1981) Oral Depositions, § 2.37, p. 159.) Section 1986.5 provides that “[a]ny person who is subpoenaed and required to give a deposition shall be entitled to receive the same witness fees and mileage as if the subpoena required him to attend and testify before a court. ...” Ordinary witness fees and mileage are allowable as costs. (People v. McFarlane (1945) 71 Cal.App.2d 535 [162 P.2d 937]; People v. Bowman (1959) 173 Cal.App.2d 416 [343 P.2d 267].)
B. Witness Stresser. Stresser was a California Highway Patrol officer who investigated the accident. He was subpoenaed to trial by plaintiff. The trial court awarded $648.56 for costs incurred in connection with his appearance. Defendants argue that the fee should be limited to the statutory witness fee provided by Government Code section 68093. We disagree.
The party issuing a subpoena for a peace officer at a civil trial is required to reimburse the public entity employing the officer his salary and necessary travel expenses paid in connection with the court appearance. (Gov. Code, § 68097.2.) The amount paid is a taxable cost. (Gov. Code, § 68097.8.) Since we have determined that plaintiff prevailed, the entire cost of Stresser’s appearance was properly allowed.
C. Service of Process on Officer Stresser. Finally, defendants object to the claim of $30 for costs incurred by a registered process server to obtain service on Officer Stresser. Defendants contend that the fee should be limited to that allowed by Government Code, section 26721.7 Section 1032.8, subdivision (b) provides, however, that registered process servers are entitled to recover reasonable expenses in effecting service, such expenses being recoverable as costs.8 Defendants have failed to demonstrate any abuse of discretion by the trial court in awarding the costs of service.
[Supp. 14]*Supp. 14The judgment is affirmed, except as to the award of costs regarding witness Nativo. The matter is remanded to the trial court to modify the judgment in accordance with this opinion.
Garbolino, J., and Yonehiro, J.,
Assigned by the Chairperson of the Judicial Council.