JUDITH BOTEACH v. YOAV BOTACH

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Court of Appeal, Second District, California.

JUDITH BOTEACH, Plaintiff and Respondent, v. YOAV BOTACH, Defendant and Appellant.

B224823

Decided: February 24, 2011

Richard I. Wideman for Defendant and Appellant. Engstrom, Lipscomb & Lack, Walter J. Lack and Steven C. Shuman;  Robert W. Hirsh & Associates and Robert W. Hirsh for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Yoav Botach appeals the trial court's post-judgment order denying his motion to correct an earlier order awarding costs.   We conclude the court properly denied his motion, as he failed to identify any clerical error in the cost award and correction of any other error was beyond the scope of the motion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pre-Judgment Proceedings

1. Complaint

Respondent Judith Boteach brought suit against appellant Yoav Botach, his brother Shlomo Botach, and Yoav's son BarKochba Botach.   She also sued Botach Management-a partnership between Yoav and Shlomo-and Botach Tactical-a business operated by BarKochba.1  Judith alleged in her complaint that in December 1997, she and Yoav were married in an orthodox Jewish wedding ceremony.   Their relationship ended in August 2002, after Yoav allegedly beat her.   During the relationship, they allegedly entered into an agreement in which they agreed to share property as husband and wife, including real property acquired by Yoav during the relationship and Yoav's earnings and income.   Judith also claimed an interest in the appreciation of real property owned by Yoav prior to the relationship.   The complaint alleged that with respect to certain real property owned by Yoav or in which he had an interest, legal title was held by others on his behalf, including the other defendants.

The first through third causes of action, for breach of oral and implied agreements, were asserted against Yoav only.   In addition, Yoav was the sole named defendant in the sixth cause of action (for intentional misrepresentation), the eleventh through thirteenth causes of action (for assault, battery and intentional infliction of emotional distress), the nineteenth cause of action (for breach of joint venture agreement), and the twentieth cause of action (for breach of fiduciary duty).   With respect to the other defendants, Judith sought an accounting and imposition of a constructive trust or equitable liens on property they allegedly held for the benefit of Yoav. Judith also claimed to have performed services for all defendants and sought recovery under theories of quantum meruit and failure to pay wages due.   She further asserted claims against all defendants for conversion and unfair business practices.

2. Offer to Compromise

In November 2007, defendants as a group served a joint offer to compromise pursuant to section 998 of the Code of Civil Procedure.2  The offer proposed that defendants would jointly pay a monetary award of $400,000 to Judith and that each party would bear his, her or its own costs.   Judith rejected the offer.3

3. Judgment

The issues in the complaint were resolved by a court trial.   In a judgment entered August 31, 2009, the court awarded Judith $50,000 for Yoav's assault, battery and infliction of emotional distress and $200,000 for her quantum meruit claim against Yoav only.4  The judgment was in favor of the other defendants on all the claims asserted against them.5  The judgment stated that costs were awarded to “each and every prevailing party according to law,” and that accordingly, Judith would recover some amount of costs from Yoav and that he and the other defendants would recover some amount of costs from Judith.   The amount of costs was left blank, to be determined by further proceedings.

B. Post-judgment Cost Order

After the judgment was entered, defendants submitted a single cost memorandum, seeking costs totaling $374,502.47.   Judith submitted a cost memorandum of her own and moved to tax defendants' costs.   She contended that defendants had failed to allocate between costs incurred before and after the November 2007 section 998 offer or between Yoav and the other defendants.6  Judith argued that Yoav should bear the “lion's share” of the costs because he was the “target defendant,” the one who allegedly “made a deal with her,” and “the one who usually asked her to perform the tasks she performed for the business.”   In their opposition, defendants established that the only pre-offer costs listed in the cost memorandum were those incurred by the prevailing defendants and that the separate costs incurred by Yoav during the pre-offer period were not included in the cost memorandum.7  With respect to post-offer costs, defendants took the position that such costs need not be allocated between Yoav and the other defendants because all such costs should be awarded pursuant to section 998 and deducted from the judgment awarded to Judith pursuant to subdivision (e) of that provision.8

By order dated March 2, 2010, the court denied Judith's motion to tax costs in its entirety.   The court reduced Judith's claimed costs to $80,969.42.   The court then inserted the appropriate figures into the blanks in the previously-entered judgment, so that the final cost award stated:  “Costs are awarded to each and every prevailing party according to law.  [Judith] shall have and recover her costs in the amount of $80,969.42 from [Yoav]. Defendants shall recover costs in the amount of $374,502.47 from [Judith].”   The final order said nothing about deduction or offset.   Neither party appealed this order.9

C. Yoav's Motion to Correct Cost Award

On March 26, 2010, Yoav, acting alone, filed an “Application for Order Correcting Costs.”   Yoav asked that the court correct the final award by applying the $250,079 in post-offer costs awarded to all defendants against the $250,000 awarded to Judith.   This would leave Judith with a zero judgment.   Accordingly, the application further requested that the judgment be “corrected” by recognizing that Judith was not a prevailing party and eliminating the costs awarded to Judith.   Finally, the application requested that the court enter a net judgment in favor of all defendants in the amount of $124,502.47 (the $374,502.47 awarded to defendants for all their pre-offer and post-offer costs, less the $250,000 awarded to Judith).

Judith opposed, contending Yoav was entitled to offset only his portion of the post-offer costs under section 998, subdivision (e), not all the post-offer costs.   Judith also contended, for the first time, that the offer to compromise was invalid because it was a joint offer, not apportioned among defendants.   In his reply, Yoav contended that all the costs awarded to all defendants could properly be applied to offset the judgment, although the judgment was against Yoav alone.

By stipulation, Yoav's motion was continued to a date when Judge Ettinger, who had presided over the trial, entered the final judgment and issued the cost award, was no longer on the bench.   The motion was heard by Judge Munoz.   By order dated April 9, 2010, the court denied Yoav's motion to correct.   In its order, the court stated, among other things, that the offer to compromise was invalid because it was not allocated between defendants, and it was impossible to determine whether the judgment Judith obtained against Yoav was more favorable than his portion of the offer.   The court further stated that it had “no way of knowing what [Yoav's] costs actually were.”   Accordingly, Yoav was “not entitled to offset his costs.”   Yoav appealed the April 9 order.10

DISCUSSION

Yoav contends that Judge Munoz committed error by denying his motion to correct Judge Ettinger's March 2, 2010 order.   On appeal, he contends the March 2 order should have been “corrected” or amended in two respects:  (1) by applying the $250,079 awarded to all defendants for post-offer costs against the $250,000 awarded to Judith on her claims against Yoav, thus reducing her damage award to zero;  and (2) by eliminating the costs awarded to Judith because Judith could not rightfully be deemed the prevailing party after this offset.11  Although we disagree with the trial court's reasoning, we affirm the court's order denying the relief sought.12

Our conclusion that Yoav's motion was properly denied derives from the limited nature of the relief available at the post-judgment, post-cost award stage of the litigation.   The substantive disputes between the parties were resolved in the trial and the proceedings on the parties' post-judgment cost memoranda and motions to tax costs.   In the judgment, the trial court awarded Judith $250,000 for her claims against Yoav and nothing for her claims against the remaining defendants.   After entry of judgment, Judith contended she was the prevailing party with respect to Yoav and sought her costs from him.   Yoav did not dispute Judith's claim.   Indeed, by seeking only the costs he incurred after the November 2007 offer to compromise-costs which are awardable under section 998 without regard to prevailing party status-Yoav essentially conceded that Judith was the prevailing party as to him in the litigation.   Yoav did dispute calculation of the final award to Judith, contending that the costs claimed by all defendants should be used to offset the amount Yoav owed to Judith.   In its March 2, 2010 order, the trial court resolved both issues in Judith's favor by awarding Judith $250,000 plus costs to be paid by Yoav without offset.

Yoav did not appeal the judgment or the March 2 order.   During the period in which an appeal might have been taken, he elected instead to file the motion for an order correcting the March order, essentially contending that it contained inadvertent errors and omissions.   Although Yoav did not specifically so state, the remedy he sought derives from the trial court's inherent power to correct clerical errors in its judgments and orders (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034) and from section 473, subdivision (d), which permits the court “upon motion of the injured party, or its own motion,” to “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed.”   However, the type of error correctable in this manner is limited to “ ‘clerical error,’ ” which is defined as “ ‘ “errors, mistakes, or omissions which are not the result of the exercise of the judicial function.” ’ ”  (Conservatorship of Tobias, supra, at p. 1035, quoting George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 480-481.)   Clerical error must be distinguished from judicial error, which is defined as “the deliberate result of judicial reasoning and determination.”   (Conservatorship of Tobias, supra, at p. 1035.)   If the judgment or order rendered accurately expresses the court's intent, it cannot be corrected by an amendment, but must be rectified by the ordinary procedures for attack on a judgment or order, such as a motion to vacate or an appeal.  (Ibid.;  People v. Bhakta (2008) 162 Cal.App.4th 973, 981;  7 Witkin, Cal. Procedure (5th ed.   2008) Judgment, § 65, p. 600.)   In the case of judicial error, “the decision of the trial court having been once made after regular submission of the motion[,] its power is exhausted․”  (People v. Bhakta, supra, at p. 981, quoting Phelan v. Superior Court (1950) 35 Cal.2d 363, 371.)

Neither in his brief on appeal nor in his motion to the trial court did Yoav point to anything in the record to suggest that the March 2, 2010 order was not the order Judge Ettinger intended with respect to Judith's prevailing party status or offset.   Instead, he asked Judge Munoz and now asks us to presume the order contained inadvertent errors and to manipulate the numbers set forth in the order to reach a result more favorable to him.   We see no basis for doing so.

First, with respect to Judith's status as prevailing party, the court's conclusion was clear:  by awarding Judith approximately $80,000 in pre-offer costs to be paid by Yoav, it unambiguously deemed her to be the prevailing party as to him.13

With respect to offset, Yoav argued in the opposition to Judith's motion to tax costs that the costs incurred by all defendants should be used to offset the $250,000 Yoav owed to Judith.   The court was thus aware of Yoav's position.   Nevertheless, its March 2 order left Judith's $250,000 award intact and added $80,000 in costs to her recovery from Yoav. Yoav points out that the application of the section 998, subdivision (e) offset is mandatory.   The offset is mandatory, but only if the trial court has been supplied the information needed to determine the amount.  (See Fundamental Investment etc.   Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 974-975 [where defendants' cost memorandum failed to distinguish the prevailing defendants' costs from the losing defendant's costs, trial court not did not err in failing to allocate sua sponte, despite section 1032's mandatory provisions requiring costs to be awarded to prevailing defendants].)   Yoav did not submit a cost bill summarizing his post-offer costs.   Instead, he joined the other defendants in submitting a joint cost bill which included the costs incurred by the other defendants pre-offer and the costs incurred by all defendants post-offer.   The cost bill failed to allocate between post-offer costs incurred by Yoav and those incurred by the other defendants.14  Accordingly, the court was unable to calculate any offset owed Yoav or to reduce Judith's award by any amount, and its failure to do so did not represent inadvertence or clerical error.

As Yoav failed to establish that the March 2 order contained clerical error, his subsequent request to correct that order was beyond the trial court's jurisdiction.  (See People v. Bhakta, supra, 162 Cal.App.4th at p. 981 [trial court acted in excess of jurisdiction when it entered an amended judgment containing substantive changes during post-judgment proceedings].)   Although the court instead denied the request based on its finding that the offer to compromise was invalid, we affirm the April 9 order as correct in its result.15

DISPOSITION

The order of April 9, 2010 is affirmed.   Costs are awarded to respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Because the parties share the same or similar last names, they will be referred to by their first names, as has been the practice throughout the litigation.   Yoav, Shlomo, BarKochba, Botach Management and Botach Tactical are jointly referred to as defendants..  FN1. Because the parties share the same or similar last names, they will be referred to by their first names, as has been the practice throughout the litigation.   Yoav, Shlomo, BarKochba, Botach Management and Botach Tactical are jointly referred to as defendants.

FN2. Undesignated statutory references are to the Code of Civil Procedure.  “Section 998 provides that not less than 10 days prior to trial, any party ‘may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated.’ (§ 998, subd. (b).)  If the offer is accepted, the court ‘shall enter judgment accordingly.’   (Id., subd. (b)(1).)  [¶] If a plaintiff does not accept the defendant's offer and fails to obtain a more favorable judgment, the plaintiff ‘shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer.’ (§ 998, subd. (c)(1).)   In that case, the defendant's recoverable costs ‘shall be deducted from any damages awarded in favor of the plaintiff.’  (Id., subd. (e).)”  (One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1089.).  FN2. Undesignated statutory references are to the Code of Civil Procedure.  “Section 998 provides that not less than 10 days prior to trial, any party ‘may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated.’ (§ 998, subd. (b).)  If the offer is accepted, the court ‘shall enter judgment accordingly.’   (Id., subd. (b)(1).)  [¶] If a plaintiff does not accept the defendant's offer and fails to obtain a more favorable judgment, the plaintiff ‘shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer.’ (§ 998, subd. (c)(1).)   In that case, the defendant's recoverable costs ‘shall be deducted from any damages awarded in favor of the plaintiff.’  (Id., subd. (e).)”  (One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1089.)

FN3. Defendants submitted a second joint offer to Judith of $1 million in April 2008.   Judith rejected this offer as well.   Unless otherwise designated, references to the offer to compromise are to the November 2007 offer..  FN3. Defendants submitted a second joint offer to Judith of $1 million in April 2008.   Judith rejected this offer as well.   Unless otherwise designated, references to the offer to compromise are to the November 2007 offer.

FN4. In May 2009, prior to entry of judgment, Judith filed a bankruptcy petition.   Defendants were listed as creditors holding unsecured nonpriority claims.   In July 2009, the bankruptcy court granted relief from the automatic stay permitting the trial court to “enter judgment in favor of the prevailing parties” in the underlying litigation, to “determine the costs to which the parties are entitled,” and to “determine whether those costs are required to be setoff pursuant to [section] 998 [, subdivision] (e).”   An order of discharge under section 727 of title 11, United States Code was entered on October 6, 2009..  FN4. In May 2009, prior to entry of judgment, Judith filed a bankruptcy petition.   Defendants were listed as creditors holding unsecured nonpriority claims.   In July 2009, the bankruptcy court granted relief from the automatic stay permitting the trial court to “enter judgment in favor of the prevailing parties” in the underlying litigation, to “determine the costs to which the parties are entitled,” and to “determine whether those costs are required to be setoff pursuant to [section] 998 [, subdivision] (e).”   An order of discharge under section 727 of title 11, United States Code was entered on October 6, 2009.

FN5. Judith appealed the judgment.   Her appeal was dismissed by order dated March 15, 2010 for failure to pay reporter's transcript fees.  (See California Rules of Court, rule 8.140.).  FN5. Judith appealed the judgment.   Her appeal was dismissed by order dated March 15, 2010 for failure to pay reporter's transcript fees.  (See California Rules of Court, rule 8.140.)

FN6. Judith further alleged any costs owed to defendants had been discharged in bankruptcy, that the April 2008 offer to compromise superseded the November 2007 offer and should have been the basis for any section 998 costs, that the court should exercise its discretion to eliminate expert witness fees and the cost of the discovery referee, which represented the bulk of the costs incurred by defendants, and that defendants were seeking recompense for expenses that were not recoverable as costs.   She did not contend that the offer to compromise was invalid..  FN6. Judith further alleged any costs owed to defendants had been discharged in bankruptcy, that the April 2008 offer to compromise superseded the November 2007 offer and should have been the basis for any section 998 costs, that the court should exercise its discretion to eliminate expert witness fees and the cost of the discovery referee, which represented the bulk of the costs incurred by defendants, and that defendants were seeking recompense for expenses that were not recoverable as costs.   She did not contend that the offer to compromise was invalid.

FN7. Summaries attached to defendants' cost memorandum broke down the total as follows:  pre-offer costs, $124,423.47;  post-offer costs, $250,079..  FN7. Summaries attached to defendants' cost memorandum broke down the total as follows:  pre-offer costs, $124,423.47;  post-offer costs, $250,079.

FN8. Section 998, subdivision (e) provides:  “If an offer [of compromise] made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.   If the costs award under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.”.  FN8. Section 998, subdivision (e) provides:  “If an offer [of compromise] made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.   If the costs award under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.”

FN9. Post-judgment orders for costs are separately appealable under section 904.1, subd. (a)(2) as orders after judgment.  (Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 223.).  FN9. Post-judgment orders for costs are separately appealable under section 904.1, subd. (a)(2) as orders after judgment.  (Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 223.)

FN10. Yoav identifies himself and the other defendants as “appellants” in his brief.   However, Yoav alone filed the motion to correct the cost award..  FN10. Yoav identifies himself and the other defendants as “appellants” in his brief.   However, Yoav alone filed the motion to correct the cost award.

FN11. In his motion for an order correcting costs, Yoav also asked that the court reduce the cost award in favor of defendants to $124,502.47 (the $374,502.47 awarded them for costs minus the $250,000 awarded to Judith for damages).   This is not mentioned in his brief on appeal..  FN11. In his motion for an order correcting costs, Yoav also asked that the court reduce the cost award in favor of defendants to $124,502.47 (the $374,502.47 awarded them for costs minus the $250,000 awarded to Judith for damages).   This is not mentioned in his brief on appeal.

FN12. “ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ ”  (Fonseca v. Fong (2008) 167 Cal.App.4th 922, 929, quoting Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)   We apply this rule regardless of whether the correct legal theory was ever actually invoked.  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.).  FN12. “ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ ”  (Fonseca v. Fong (2008) 167 Cal.App.4th 922, 929, quoting Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)   We apply this rule regardless of whether the correct legal theory was ever actually invoked.  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

FN13. Although the substantive issue is not before us, were we to address it, we would agree with the trial court.   Section 1032, defines “ ‘[p]revailing party’ ” to include “the party with a net monetary recovery” and provides that “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (§ 1032, subd. (a)(4) and (b).)  A plaintiff obtains a “net monetary recovery” where the amount awarded on his or her complaint is greater than the amount awarded on any cross-complaint, even if the defendant prevailed on the majority of the claims asserted in the complaint.  (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198;  Haire v. Stevenson (1987) 196 Cal.App.3d 1249, 1251.)Yoav's only basis for contending that Judith was not the prevailing party in her claims against him is that her award, exclusive of pre-offer costs, was less than the post-offer costs awarded to all defendants.   His position has been rejected by our Supreme Court.   In Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, the plaintiff recovered less than the defendant's section 998 offer, and the defendant's post-offer costs far exceeded the amount of the judgment, even including the plaintiff's pre-offer costs.   Nonetheless, the Supreme Court held that the plaintiff was entitled to recover its pre-offer costs as the prevailing party under section 1032.   (20 Cal.4th at pp. 1108-1112.)   Describing the plaintiff as “a party with a net monetary recovery,” the court stated:  “To conclude that section 998 cuts off plaintiff's right to its preoffer costs, including preoffer attorney fees, we would have to overrule a century of authority recognizing this right.”  (Id. at pp. 1108, 1110.)   The court further explained that a defendant seeking costs under section 998 is “by definition is not the prevailing party and is not entitled to any category of costs on that basis.   Under section 998, the defendant's entitlement to costs derives not from its status as a prevailing party but from the plaintiff's failure to accept a reasonable settlement offer.”  (20 Cal.4th at p. 1114.)   Contrary to a contention made by Yoav's counsel at oral argument, the Supreme Court's decision in Goodman v. Lozano (2010) 47 Cal.4th 1327, is not to the contrary.   That case did not address section 998 or suggest that an offset under section 998, subdivision (e) changes the definition of prevailing party under section 1032..  FN13. Although the substantive issue is not before us, were we to address it, we would agree with the trial court.   Section 1032, defines “ ‘[p]revailing party’ ” to include “the party with a net monetary recovery” and provides that “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (§ 1032, subd. (a)(4) and (b).)  A plaintiff obtains a “net monetary recovery” where the amount awarded on his or her complaint is greater than the amount awarded on any cross-complaint, even if the defendant prevailed on the majority of the claims asserted in the complaint.  (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198;  Haire v. Stevenson (1987) 196 Cal.App.3d 1249, 1251.)Yoav's only basis for contending that Judith was not the prevailing party in her claims against him is that her award, exclusive of pre-offer costs, was less than the post-offer costs awarded to all defendants.   His position has been rejected by our Supreme Court.   In Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, the plaintiff recovered less than the defendant's section 998 offer, and the defendant's post-offer costs far exceeded the amount of the judgment, even including the plaintiff's pre-offer costs.   Nonetheless, the Supreme Court held that the plaintiff was entitled to recover its pre-offer costs as the prevailing party under section 1032.   (20 Cal.4th at pp. 1108-1112.)   Describing the plaintiff as “a party with a net monetary recovery,” the court stated:  “To conclude that section 998 cuts off plaintiff's right to its preoffer costs, including preoffer attorney fees, we would have to overrule a century of authority recognizing this right.”  (Id. at pp. 1108, 1110.)   The court further explained that a defendant seeking costs under section 998 is “by definition is not the prevailing party and is not entitled to any category of costs on that basis.   Under section 998, the defendant's entitlement to costs derives not from its status as a prevailing party but from the plaintiff's failure to accept a reasonable settlement offer.”  (20 Cal.4th at p. 1114.)   Contrary to a contention made by Yoav's counsel at oral argument, the Supreme Court's decision in Goodman v. Lozano (2010) 47 Cal.4th 1327, is not to the contrary.   That case did not address section 998 or suggest that an offset under section 998, subdivision (e) changes the definition of prevailing party under section 1032.

FN14. That some allocation of post-offer costs was necessary was apparent from the fact that pre-offer costs were allocated.   In opposing Judith's motion to tax costs, defendants represented that their pre-offer costs were exclusive of those incurred by Yoav. As a result, defendants recovered a considerable sum for pre-offer costs that would not have been awardable had Yoav, the unsuccessful defendant, incurred them..  FN14. That some allocation of post-offer costs was necessary was apparent from the fact that pre-offer costs were allocated.   In opposing Judith's motion to tax costs, defendants represented that their pre-offer costs were exclusive of those incurred by Yoav. As a result, defendants recovered a considerable sum for pre-offer costs that would not have been awardable had Yoav, the unsuccessful defendant, incurred them.

FN15. The parties devote a considerable portion of their briefs to discussing the validity of defendants' joint offer to compromise.   The validity of multi-defendant offers where liability is not joint and several has not been finally resolved.  (Compare Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1169-1172 [joint offer by defendant shareholder and his wholly owned corporation was valid, although corporation had no potential liability for plaintiff's claim for breach of fiduciary duty], with Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 584 [“A settlement offer made jointly by several defendant to a specific plaintiff may be sufficient to trigger section 998 penalties where the defendants are jointly and severally liable.   [Citation.]  However, ․ where each defendant is only jointly liable for the plaintiff's economic damages but severally liable for noneconomic damages in proportion to that defendant's degree of wrongdoing [citation], the validity of such an offer is questionable.”].) The validity of the offer to compromise at issue here was resolved by the trial court in its March 2, 2010 order.   By awarding unallocated post-offer costs to all defendants, including Yoav, the court necessarily concluded that the November 2007 offer to compromise was valid.   The court's determination could have been challenged on direct appeal, but was not properly at issue in Yoav's motion to correct and is not at issue in the present appeal.Judith contends the appeal should be dismissed as moot because her debt to defendants has been discharged by bankruptcy.  (Judith's separate motion to dismiss the appeal as moot was denied by this court by order dated December 15, 2010.)   She claims “the [bankruptcy] discharge prohibits any attempt to collect a debt that has been discharged” and cites Hurley v. Bredehorn (1996) 44 Cal.App.4th 1700, 1705 for the proposition that “ ‘an appeal from entry of a judgment on a debt which has been discharged in bankruptcy is moot and must be dismissed.’ ”   This appeal is not from entry of a judgment on Judith's debt but from Yoav's motion to correct a judgment he owes to Judith.   Resolution of the issues presented is permitted by the bankruptcy court's order granting relief from stay..  FN15. The parties devote a considerable portion of their briefs to discussing the validity of defendants' joint offer to compromise.   The validity of multi-defendant offers where liability is not joint and several has not been finally resolved.  (Compare Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1169-1172 [joint offer by defendant shareholder and his wholly owned corporation was valid, although corporation had no potential liability for plaintiff's claim for breach of fiduciary duty], with Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 584 [“A settlement offer made jointly by several defendant to a specific plaintiff may be sufficient to trigger section 998 penalties where the defendants are jointly and severally liable.   [Citation.]  However, ․ where each defendant is only jointly liable for the plaintiff's economic damages but severally liable for noneconomic damages in proportion to that defendant's degree of wrongdoing [citation], the validity of such an offer is questionable.”].) The validity of the offer to compromise at issue here was resolved by the trial court in its March 2, 2010 order.   By awarding unallocated post-offer costs to all defendants, including Yoav, the court necessarily concluded that the November 2007 offer to compromise was valid.   The court's determination could have been challenged on direct appeal, but was not properly at issue in Yoav's motion to correct and is not at issue in the present appeal.Judith contends the appeal should be dismissed as moot because her debt to defendants has been discharged by bankruptcy.  (Judith's separate motion to dismiss the appeal as moot was denied by this court by order dated December 15, 2010.)   She claims “the [bankruptcy] discharge prohibits any attempt to collect a debt that has been discharged” and cites Hurley v. Bredehorn (1996) 44 Cal.App.4th 1700, 1705 for the proposition that “ ‘an appeal from entry of a judgment on a debt which has been discharged in bankruptcy is moot and must be dismissed.’ ”   This appeal is not from entry of a judgment on Judith's debt but from Yoav's motion to correct a judgment he owes to Judith.   Resolution of the issues presented is permitted by the bankruptcy court's order granting relief from stay.

EPSTEIN, P. J. SUZUKAWA, J.