Section 998: Trial Judge Improperly Found CCP § 998 Offer Invalid Based On Failure Of Offeree’s Counsel To Sign It

 

Also, Offer Was Valid For Proposing Dismissal Of Plaintiff’s Action With Prejudice.

     In Mauzey v. Morschauser, Case Nos. D070681/D070683 (4^th Dist., Div. 1 Mar. 3, 2017) (unpublished), a trial judge found a CCP § 998 offer invalid because it was not signed or authorized by offeree’s counsel (apparently counsel’s secretary had signed) and found it was uncertain in proposing that a dismissal with prejudice of the lawsuit be accomplished in return for a waiver of costs. That led to the taxing of the offeree’s expert witness fees request in the costs memorandum.

     The 4/1 DCA reversed and remanded for a hearing on the expert witness fees, determining the 998 offer was valid. Although the offer was on letterhead and signed by counsel’s secretary, the appellate court found “[s]ection 998 contains no requirement that the offer be authorized or signed by the offeree’s counsel, but as [appellant] points out, it does require that the acceptance be written and ‘shall be signed by counsel for the accepting party ….’ (§ 998, subd. (b).) That the Legislature requires counsel’s signature for acceptance, but not the offer, indicates it intended no such requirement for the offer in the statute.” (Slip Op., at p. 30.) The 998 offer was not conditional in nature, such that the dismissal with prejudice feature did not render it infirm.