Section 998: “Monster” Decision On 998 Offer Interpretation--Offer Including “Costs,” If Accepted, Also Includes Attorney’s Fees

 

Another “Bright-Line” Rule Emanates In Recent 998 Decision.

     Engle v. Copenbarger & Copenbarger, 157 Cal.App.4th 165, 168-169 (2007) announced a “bright-line rule” in the CCP § 998 area: a defense offer silence as to costs and fees means that they are excluded from the ambit of the offer, such that plaintiff should have recovered both. Well, that is hardly the end of the story.

     Another “bright-line rule” emerged in Martinez v. Los Angeles County Metropolitan Transp. Auth., Case No. B221234 (2d Dist., Div. 1 May 23, 2011) (certified for publication). And exactly what is that “bright-line rule?” A 998 offer excluding “costs” alone, unless expressly stated otherwise in the offer, also excludes “attorney’s fees” because they are costs encompassed within the definition of related statutory provisions.

     There you go, practitioners. Another case in which 998 offers must be explicit in what they encompass; failure to specify otherwise could result in disaster.

     Justice Rothschild, on behalf of a 3-0 panel, provided the clarification here.