Statutory Construction of 998 Was Unclear, Nullifying $5,350 Expert Witness Fee Award.
We have seen a recent flurry of decisions in the CCP § 998 area. The next one, from a published decision perspective, trailblazes on the issue of whether a § 998 offer with no acceptance language can survive an invalidity attack.
It did not, ruled our local Santa Ana appellate court, in a 3-0 opinion authored by Justice Moore in Puerta v. Torres, Case No. G043745 (4th Dist., Div. 3 May 25, 2011) (certified for partial publication on the 998 issue).
The defense’s $5,350 expert witness fee award was predicated on the lower court’s determination that the 998 offer was valid. Not so, said the appellate court, because there was the absence of a Notice of Acceptance line mandated under 998 amendments. Justice Moore did suggest a couple of acceptable alternatives: “The Judicial Council form section 998 offer (CIV-090), for example, includes a signature line to indicate acceptance. A sentence in the offer stating that acceptance could be indicated by return letter might be equally acceptable.” (Slip Opn., p. 12.) The absence of any language regarding acceptance was damning in this one.
BLOG UNDERVIEW--The Second District came to the same conclusion in the unpublished decision of Sargon Enterprises, which you can review by going to our February 10, 2011 post.
Comments