Can a litigant claim section 998 costs and fees if he is not the prevailing party?

California, United States of America

The following excerpt is from Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4th 985, 73 Cal.Rptr.2d 682, 953 P.2d 858 (Cal. 1998):

5 This case does not present a situation in which a litigant is not the prevailing party, and yet may claim entitlement to section 998 costs and fees because the prevailing party rejected a qualifying settlement offer and recovered less than the offer following the verdict. (See, e.g., Adam v. DeCharon (1995) 31 Cal.App.4th 708, 712-713, 37 Cal.Rptr.2d 195.) Accordingly, we express no opinion on that subject.

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