Acceptance Line With Request For Dismissal Was No Defect, With The Offer Made In Good Faith Based On Informative Litigation Activities.
In Standage v. Bruno, Case No. A165207 (1st Dist., Div. 5 Jan. 29, 2025) (unpublished), med mal plaintiff lost a case after the jury returned a defense verdict after less than two hours of deliberation. Plaintiff earlier had rejected a CCP § 998 offer to dismiss the case in return for a waiver of costs/malicious prosecution claims, an offer made about seven months into the litigation, with the defense also making subsequent informal settlement offers after future activities in the case—none of which were accepted. The lower court awarded the defense $33,890.19 in costs under section 998, inclusive of expert witness costs of $16,125.
Plaintiff’s appeal of this ruling was unsuccessful. First up was plaintiff’s argument that the defense requesting a dismissal along with plaintiff signing acceptance of the offer was procedurally noncompliant. The appellate court disagreed, determining that the request for a dismissal with prejudice rather than a judgment was fine (Goodstein v. Bank of San Pedro, 27 Cal.App.4th 899, 906 (1994) and that coupling a dismissal request with an acceptance line signature was no invalidating feature of the 998 offer (Slip Op., p. 8).
Next up was the argument that the 998 was not made in good faith. The problem here was that plaintiff had sent a 90 day pre-trial notice of intent in tandem with the fact the parties did engage in investigation and extensive discovery given the offer was not made right after the case was filed—rather it was seven to eight months into the case filing itself. (Covert v. FCA USA, LLC, 73 Cal.App.5th 821, 842 (2022).) The 998 costs waiver did have value to plaintiff given the defense assessment it was a losing case, which turned out to be true and created a prima facie presumption that the offer was made in good faith. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1262, 1264 (1998).) We bloggers also believe the reviewing court was impressed with the defense’s subsequent informal offers to settle after various junctures of the litigation, which evidenced continuing good faith by the defense.