Fundamental Investment Growth Shelter Realty Fund v. Gradow

WOODS (Fred), J.,

Concurring and Dissenting. I respectfully dissent from that portion of the majority opinion which holds that the award of $4,153.53 to plaintiff as costs on the prior appeal must be included in the recovery obtained in the second trial for purposes of determining whether plaintiff was a prevailing party pursuant to defendant’s offer under section 998 of the California Code of Civil Procedure. The majority opines that since the defendant prevailed upon plaintiff to defer collection of the previously awarded costs, such costs must necessarily be included in the calculation of…