Recovering Costs After a California Injury Verdict or UIM Award: A Lawyer’s Guide to 998, § 3291 and the Petition to Confirm

John Roach, Esq. | September 29, 2026 | All Things Trial \ California Law

Recovering Costs After a California Injury Verdict or UIM Award: A Lawyer’s Guide to 998, § 3291 and the Petition to Confirm

If you were badly hurt in an accident in San Francisco or anywhere in California, the number on the verdict form or arbitration award is not the whole recovery. Court costs, expert fees and, in a personal injury case, 10% interest can add tens of thousands of dollars. In one trial I handled, they added nearly $100,000 to a $300,000 verdict. That happens when your lawyer serves a statutory settlement offer early and the other side turns it down. If you want a lawyer who plans for this from day one, call (415) 851-4557 for a free consultation.

The rest of this post is written for lawyers. It is how I actually collect those dollars after a verdict or an arbitration award: the memorandum of costs, the motion to tax, the motion to amend the judgment, the forum question in a UIM arbitration, and how to start a petition to confirm in superior court. These are practice notes from cases I tried and arbitrated, drawn from what I have done in jury trials and in UIM arbitrations. Extensive trial experience teaches you that this work is unglamorous, deadline-driven, and worth doing right.

The starting rule: costs follow the win

Under CCP § 1032, the prevailing party is entitled to costs as a matter of right. CCP § 1033.5 sorts them into three buckets.

• Allowable: filing and motion fees, jury fees, witness fees, service of process, court reporter fees, and deposition costs, including video recording and transcripts of depositions reasonably necessary to the case.
• Not allowable: items such as investigation expenses and routine postage, telephone and photocopying, and, in the ordinary case, expert fees unless the court ordered the expert.
• Discretionary: items not listed in either category, which the court may award if reasonably necessary and reasonable in amount.

Two consequences follow. First, expert fees are usually the largest line item in a serious injury case, and § 1033.5 leaves them out unless a § 998 offer changes the analysis. That is the reason to serve the offer early: it turns the experts you were going to hire anyway into a recoverable cost. Second, everything in the memorandum of costs must be reasonably necessary to the litigation, not merely convenient. Build the record on necessity before anyone objects.

Practice pointers for any case: track, file, defend

Spend for value, and track it from day one. I do not decide what to spend by asking whether § 1033.5 makes it recoverable. I decide by asking whether the money adds value to the case. Good experts do not come cheap, and the right expert on causation, neuropsychology or damages is often what moves the number. So hire the expert the case needs, and let the recovery rules follow. What I keep is a running cost sheet from the first filing fee: date, vendor, amount, and a note on what the expense was for. Receipts and invoices go in the file the day they arrive. When the result comes back, you are converting a ledger into a memorandum, not reconstructing two years of spending, and the notes become the raw material for your necessity declaration. Two things I add when I can: mark whether each expense was before or after each § 998 offer, because that line decides the expert-fee and interest analysis, and calendar the date of every offer you serve.

File the memorandum of costs on time. The memorandum is Judicial Council form MC-010, verified by the party, attorney or agent. Under California Rules of Court, rule 3.1700(a)(1), it is due within 15 days after service of the notice of entry of judgment, or 180 days after entry of judgment, whichever is first. A motion to strike or tax is due 15 days after service of the memorandum (rule 3.1700(b)(1)), with the usual extension for service by mail or electronic means. Calendar both the day judgment is entered.

The verified memorandum is prima facie evidence that the listed costs were necessarily incurred. If the other side properly objects to an item, the burden shifts to you to show it was reasonably necessary and reasonable in amount. I file the form with category totals and keep the full itemization and invoices ready for the motion to tax.

Answer the motion to tax with evidence. The opposition is where costs are won. Mine do three things.

1. Group the objections by category, so the court can rule on principles rather than forty separate line items.
2. Attach a declaration explaining why each contested cost was necessary: why that deposition was taken, why that expert was retained, why that exhibit helped.
3. Cite the authority for each category. Video and transcript costs for depositions are covered by § 1033.5(a)(3), and the necessity showing is factual, which is what your declaration is for.

Carriers usually attack the biggest categories first: expert fees, depositions of witnesses who did not testify, and travel. None of these objections is fatal if the record shows necessity at the time the cost was incurred. The test is what a reasonable lawyer would have done with what she knew then, not what looks unnecessary after the result. Address the weak item head-on: if you deposed a defense expert who did not testify, say why the deposition was necessary. Your discovery record is the raw material for that declaration, so build it with the cost fight in mind.

Practice pointers for trials: what a 998 adds to a verdict

The mechanics of the statutory offer are in my guide to the CCP § 998 offer. Briefly: post-offer expert fees under § 998(d) are discretionary, so you need a showing of who the experts were, what they did after the offer, and why the amounts are reasonable. Interest under Civil Code § 3291 is 10% per year from the date of the offer until the judgment is satisfied, and it does not apply to a public entity or a public employee acting within the scope of employment, so do not build it into a government-claim case.

One example, and the pointer behind it. In a jury trial I tried, I served a $300,000 offer more than two years before verdict, and the jury returned exactly $300,000. A verdict that equals the offer does not, by itself, beat it, but courts compare the offer to the judgment including pre-offer costs (Oakes v. Progressive Transportation Services, Inc. (2021) 71 Cal.App.5th 486). Pre-offer costs of $6,699.78 put the judgment above the offer. That added $72,328.77 in interest, $14,225 in post-offer expert fees, and costs, for a total of $399,889. Track pre-offer costs separately for exactly this reason.

Put interest and expert fees in a motion to amend the judgment, not the memorandum of costs. Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 holds that § 3291 interest is part of the judgment, not a cost. Make the motion promptly, supported by a declaration and a clean calculation, and include the § 998(d) expert fees in the same motion. I brought mine under CCP § 473(b), which allows relief within six months of entry, and the court’s inherent authority to correct a judgment, and filed it the day after judgment was entered.

1. Prepare the calculation before the verdict. Offer date, daily rate, days elapsed. Interest runs on the compensatory damages only, not on costs. The daily rate keeps running until the judgment is satisfied, so update the number if payment is delayed.
2. Itemize the experts by name and date in the declaration, with what each did after the offer.
3. Consider an ex parte application to shorten time when delay is costing you, and be ready to explain why.

Practice pointers for arbitrations: the first question is who decides costs

Costs in arbitration turn on a forum question trial lawyers rarely face (for the UIM basics, see when a policyholder can block a UIM claim): does the arbitrator decide costs, or does the court? The answer sits in the arbitration clause and any stipulation. Section 998 applies in UM and UIM arbitration (Pilimai v. Farmers Ins. Exchange (2006) 39 Cal.4th 133), and subdivisions (c) and (d) refer to the court or the arbitrator, but the statute does not tell you which one to ask. The clause does.

Narrow clause or broad clause?

• Narrow clause: the court decides. In Storm v. Standard Fire Ins. Co. (2020) 52 Cal.App.5th 636, the UIM clause limited the arbitrator to whether the insured was legally entitled to recover damages and the amount of damages. The Court of Appeal held the arbitrator had no authority over costs, so the trial court, on the petition to confirm, was the proper forum. It also held that the policy’s cost-sharing language did not bar § 998 cost-shifting, and it sent the expert-fee claim back for a necessity determination under §§ 998 and 1293.2.
• Broad authority: ask the arbitrator. In Heimlich v. Shivji (2019) 7 Cal.5th 350, the arbitrator had power broad enough to cover costs. The Supreme Court held that a § 998 cost request made to the arbitrator within 15 days of the final award is timely (borrowing the 15-day period from rule 3.1700 by analogy), and that a party who never asks the arbitrator cannot go to the court later. The 15-day period is a product of that case. A typical UIM policy does not impose one, so do not assume it applies. Read your clause and any stipulation or arbitration rules.

When in doubt, ask both

When the clause leaves any doubt, ask both. Make a written cost request to the arbitrator promptly after the award (within 15 days if the clause or rules are unclear about timing, following Heimlich), and preserve the same request with the court in the petition to confirm (CCP § 1293.2 allows costs on a petition to confirm, correct or vacate).

What a UIM arbitration clause looks like

Here is the clause from a UIM policy in an arbitration I handled, which is typical of the narrow form:

“If we and a covered person do not agree (1) whether that person is legally entitled to recover damages under this endorsement; or (2) as to the amount of damages then the matter will be settled by a single neutral arbitrator.”

The clause sends two questions to the arbitrator: entitlement and amount of damages. It says nothing about costs, fees, or § 998, and it sets no deadline for a cost request. That silence is the argument. An arbitrator whose powers are “expressly limited” to those two questions has no authority over costs, so the trial court decides them on the petition to confirm. The clause in Storm was the same kind, and its cost-sharing language (“[p]ay the expenses it incurs” and “[b]ear the expenses of the arbitrator equally”) only said who pays in the first instance; Storm held it does not bar later shifting under § 998.

A broad clause looks different. Illustratively, something like “any dispute arising out of or relating to this policy shall be resolved by binding arbitration under the rules of [provider]” gives the arbitrator power over the whole dispute, which is the Heimlich situation. What to check in your own clause:

1. Scope. Is the arbitrator limited to entitlement and amount, or does the clause reach “any dispute”?
2. Cost and fee language. Is there a cost-sharing provision? Storm says it does not bar § 998 shifting.
3. Incorporated rules or a stipulation. Provider rules or a stipulation to arbitrate can expand the arbitrator’s authority, or set a deadline the policy does not.
4. Deadlines. Most narrow UIM clauses have none. If there is one, calendar it from the date the award is served.

Option: stipulate to send post-award issues to the arbitrator

Even with a narrow clause, counsel can agree to give the arbitrator authority over the post-award issues. The parties’ agreement is what defines the arbitrator’s power, so a written stipulation can supply what the policy language withholds. The reason to do it is speed: a petition to confirm, a motion to tax and a hearing date in superior court can add months, while an arbitrator can rule on a briefing schedule the two sides set themselves.

A workable stipulation covers:

1. The issues. § 998 post-offer costs, § 998(d) expert fees, and any other costs claimed, with § 3291 interest included if the parties want it decided there.
2. The process. A briefing schedule, whether there will be a hearing or a ruling on the papers, and a date for the decision.
3. Finality. The ruling is binding, and either side may petition to confirm the award as supplemented so it becomes a judgment.
4. Fees. Who pays the arbitrator for the additional work, subject to reallocation in the ruling.
5. What is waived. Say expressly that neither side will contest the arbitrator’s authority to decide these issues, and that the carrier will not argue forfeiture or timeliness.

Get it in writing and signed by counsel. The best time is before the hearing, in the stipulation to arbitrate, so the arbitrator’s authority is never in doubt. It can also be done right after the award. The trade-off is that you give up the Storm argument that the court is the forum, so use it when the carrier is cooperative and the arbitrator is someone you trust to rule on costs, and file the petition in superior court when the carrier will not stipulate.

Pointer: where the award exceeds the limit, costs are the only money past the cap

In a UIM arbitration where the at-fault driver carried only minimal liability coverage, the available UIM limit was $485,000 after the offset. The arbitrator found damages of $750,000, far more than the policy could pay. I had served a § 998 offer for the full available amount a year before the hearing. Because the award beat the offer, I submitted a claimant’s memorandum on recoverable costs directly to the arbitrator: $39,529.82 claimed, of which the carrier objected to more than $22,000, including a neuropsychologist’s fees and deposition costs. The arbitrator largely rejected the objections, and the final recovery was $524,361.07, which is the $485,000 plus $39,361.07 in post-offer costs and expert fees.

The pointer: where a limit caps the damages, a well-timed § 998 offer at the available limit converts costs and expert fees into the only recovery above the cap. Serve it early, and build the cost record for the arbitrator from the day you serve it.

Pointer: starting a case in superior court after the award

In another UIM arbitration, the forum question decided the outcome, and the sequence is a good template for starting the post-award proceeding. The policy clause was the narrow one quoted above: entitlement and amount, nothing about costs.

1. Serve the 998 early. I served a $450,000 offer nearly two years before the hearing, and the carrier let it lapse. The award of $659,000 came in well above it.
2. Track the post-offer spend. By the end of the arbitration the post-offer invoices were substantial: four experts (a neurologist, a biomechanical expert, a neuropsychologist and an economist, $46,117.50 in expert fees), deposition transcripts and video, and the arbitrator’s fees.
3. Send a demand with the paperwork the day after the award. I emailed the carrier’s counsel a link to every invoice (and cancelled checks where an invoice was not available), stated the total of the post-offer invoices ($74,442.01), cited Storm, and said I would rather not file the confirmation petition because it would expose the carrier to the costs of that proceeding under CCP § 1293.2.
4. Get the carrier’s position on the record. It refused, taking the position that costs had to be decided by the arbitrator and that I had missed the deadline to ask.
5. Read the clause, then file a petition to confirm in superior court. Under Storm, an arbitrator whose powers are limited to entitlement and the amount of damages has no authority over § 998 costs, so the trial court is the forum. A petition to confirm is not a motion in an existing case. It starts its own proceeding: you file a petition (CCP § 1285 et seq.) attaching the arbitration agreement and the award, pay the first-paper filing fee, and the court opens a new civil case, assigns a department, and sets a case management conference. I filed about three months after the award. A petition to confirm can be filed up to four years after service of the award, but the 100-day window to petition to vacate or correct runs from service, so do not sit on it.
6. Confirm the award and claim the costs in the same case. Confirmation turns the award into a judgment with the same force as any civil judgment (CCP § 1287.4). The petition’s filing fee is itself a recoverable cost under § 1293.2, which says the court shall award costs on any proceeding to confirm, correct or vacate an award. I then filed the memorandum of costs (a summary on Form MC-010, verified), and the carrier moved to tax.
7. Oppose with authority and receipts. The opposition made three points. First, Storm controls: the arbitrator’s power was limited to entitlement and amount, so the request to the trial court was proper, and Heimlich, which forfeited costs where the arbitrator had broad power, does not apply. Second, the summary memorandum satisfied rule 3.1700, and the itemization was supplied by declaration with invoices. Third, every cost was necessarily incurred, including the deposition of a defense expert who did not testify.

The court denied the motion to tax in full and awarded $77,512.18 in costs. One risk to note: I never made a written request to the arbitrator. That was a clean bet only because the clause was so narrow. Where the clause is broader, incorporates provider rules, or is unclear, add a written request to the arbitrator promptly, and within 15 days of the final award if there is any doubt, and preserve the same request in the petition.

A checklist for a lawyer with a trial or arbitration result

1. Serve a § 998 offer early, in writing, in an amount that is defensible and beatable. Calendar the date, because interest runs from it.
2. Spend for value, then document it. Keep a running ledger with invoices and a note on what each expense was for, and mark which side of each § 998 offer it falls on.
3. In arbitration, read the clause first, and consider a stipulation. A narrow UIM clause (entitlement and amount only) puts costs in the trial court and usually has no deadline. Counsel can also stipulate in writing to have the arbitrator hear the post-award issues, which avoids the delay of court proceedings. If the clause is broad or unclear, ask both: a written request to the arbitrator promptly (within 15 days of the final award if in doubt), and the same request preserved in the petition to confirm.
4. If the clause is narrow, send the carrier your invoices and a demand citing Storm the day after the award, then file the petition to confirm.
5. Prefer videotaped expert depositions where a live expert would cost more, and document why.
6. File the memorandum of costs on time, verified, with itemization ready.
7. Move separately to amend the judgment for § 3291 interest and § 998(d) expert fees, with a calculation and a declaration.
8. Answer the motion to tax with a declaration, grouped by category, on necessity at the time the cost was incurred.

Frequently asked questions

Talk to a lawyer about costs and your case

If you are a lawyer with a trial or arbitration result and questions about collecting costs, I am glad to talk shop, and I take attorney referrals. If you were injured, a § 998 strategy is part of how I build every case toward trial. Call the Law Office of John J. Roach at (415) 851-4557, see my results, or request a free consultation. I handle injury cases on a contingency fee, so there is no fee unless we recover. Hablamos español: llame al (415) 851-4557 o visite nuestra página de abogado de lesiones personales en San Francisco o de seguro insuficiente.

Results depend on the facts of each case; past results do not guarantee a similar outcome. This article is general information for lawyers, not legal advice.