Section 998: 998 Offer To Defendants, Conjunctively, Was Invalid Where It Did Not Have Separate Acceptance Lines In The Offer

Case Reminds Practitioners To Allow For Acceptance By Each Defendant.

            CCP § 998 is a “stick and carrot” statute designed to encourage settlements.  However, it does have some procedural requirements which are mandatory in nature.  Burchell v. Faculty Physicians & Surgeons of The Loma Linda University School of Medicine, Case No. E071146 (4^th Dist., Div. 2 Sept. 10, 2020) (published) explores one of the mandatory requirements:  the need to provide a separate acceptance line for each defendant when a multiple offer is made (especially where liability is joint and several in nature, not requiring apportionment).

            Burchell involved a professional negligence/medical battery case where plaintiff won a multi-million jury verdict.  Earlier, plaintiff had sent a section 998 offer, conjunctively, to multiple defendants with a signature line for the attorney of the “Defendants.”  The offer was not accepted, with plaintiff moving to recovery certain costs (including expert witness fees) under section 998 after the jury verdict “beat” the $1.5 million pretrial offer.  One of the defendants moved to tax these costs, but that motion was denied.  That denial was one of the issues raised on appeal.

            The 4/2 DCA reversed the 998 costs award.  The reason was that the offer was invalid because it was improperly conditioned on acceptance by both defendants, rather than made in a manner allowing individual offerees to accept it.  That violated very clear case law, such that the costs award was reversed on appeal, as well as a $1 million-plus prejudgment interest award.  (Menees v. Andrews, 122 Cal.App.4^th 1540, 1544 (2004); Wickware v. Tanner, 53 Cal.App.4^th 570, 576-577 (1997).)