However, In A Split Opinion, Justices Do Not Agree On Whether A Valid Offer Under The Simultaneous Process Can Still Allow For Fee- And Costs-Shifting.
Here is a case which might be a candidate for California Supreme Court review, prompting a split decision on some interesting CCP § 998 issues.
In Gorobets v. Jaguar Land Rover North America, LLC, Case No. B327745 (2d Dist., Div. 2 Oct. 10, 2024) (published), the trial and appellate courts had to grapple with the effectiveness of two simultaneous, alternative CCP § 998 offers in a lemon law case, one of which offered a lump sum, plus a flat attorney’s fees and costs or with the court determining those amounts and the other offering to reimburse for certain costs subject to an itemization by plaintiff and then resolving any disputes on those items with a dispute resolution process, again with the same fee and costs resolution mechanism as in the first offer. Plaintiff did not respond to the offers, eventually winning a jury verdict of $76,155.27 in damages. There were dueling costs motions based on the 998 offers, and a fee motion by plaintiff because the defense is not entitled to fees under the lemon law statute. The lower court concluded the $85,000 offer was valid (better than the jury verdict) so that plaintiff was awarded $5,238.22 in pre-offer costs and that defendant was awarded $14,591.77 in post-offer costs. The lower court denied in most part plaintiff’s $534,413.34 fee request because they were only incurred after the defense 998 offer, although $22,492 in pre-offer fees were allowed. Plaintiff appealed, with the 2/2 DCA affirming the lower court’s awards in a split decision.
The appellate panel did agree on these two legal questions: (1) simultaneous 998 offers to the same party are not effective because they do not allow the trial court to determine which party was successful; and (2) an offer to pay amounts to which an offeree is statutorily entitled and to shunt any disputes over entitlement to a third-party arbiter is too uncertain.
One might think that was the end of the opinion, but it was not. The ultimate dispositive issue was whether there are two simultaneous offers, one of which is valid and one of which is invalid, does that render the valid offer ineffective. This is where the majority and dissenting justices parted company. The majority determined that the valid simultaneous offer was effective, so the lower court’s determinations were correct. The dissenting justice disagreed, finding that simultaneous offers—as distinguished from serial offers—cast too much doubt on the offeree. Also, the dissent found that implementing these new judicial pronouncements now were unfair to the offeree not anticipating what would be handed down in an opinion years later.
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