Barba v Perez

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W LexisNexis.
                                              LEXSEE I 66 CAL .APP .4TH 444

                  ANTONIO BARBA, Plaintiff and Respondent, v. LUPE PEREZ, Defendant and
                                                          Appellânt.

                                                           c053428

                    COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

                        166 CaL App.4th 444\ 82 CøL       Rpt id   715i 2008 CøL App. LEXIS 1370


                                                    Äugust 28, 200E, Filed

NOTICE:        CERTIFIED FOR PARTIAL PUBLICA.                      and he served his $ 998 offer with the summons and
TION'                                                              complaint. The claimant's offer was less than the amount
                                                                   of damages awarded by the jury. The court held that the
        *   Pursuart to California Rules of Court, rules           tdal court did not abuse its discretion in awarding the
        8.1105(b) and 8.1110, this opinion is certified for        claimant his fees ard costs pusuant to $ 998. The court
        publication with the exception of parts I., Ii., III.,     observed that a judgment more favorable tha¡ an offer
        IV.A., and IV.B. of the Discussion. Publication            constituted prima facie evidence that the offer was rea-
        shall include the Procedural Background of part            sonable; moreover, the claimant's offer came close to the
        IV. and part IV.C. of the Discussion.                      amount of damages awarded. The owner could have re-
                                                                   quested additional time to respond to the offer if he did
PRIOR HISTORY: [***1]                                              nof believe that he had sufficient information to evaluate
  APPEAL fiom a judgment of the Superior Court of                  its reasonableness. Although $ 99fl subd. (b), ser a dead-
San Joaquin County, No. Cv025582, Lauen P. Thomas-                 line beyond which an offer could not be served, there
son, Judge.                                                        was no minimum period following commencement of
                                                                   suit for service of a valid $ 998 offer.
DISPOSITION: Affirmed.
                                                                   OUTCOME: The court afhrmed the judgment and af-
CASE SUMMARY:                                                      firmed the order denying the owner's motion to tax costs.

                                                                   LexisNexis(R) Headnotes
PROCEDURAL POSTURE: Appellant property owner
sought review ofajudgment and order from the Superior
Court ofSan Joaquin County (Califomia), which, follow-
ing ajury trial, found the owner liable to respondent per-         Civil Prccedurc > SefllemenÍs > Offerc of Judgment >
sonal injury claimant, denied the owner's motion to tax            Making of Olfen
certain costs, ald awarded those costs to the claimant             Civil P¡ocedure > Appeals > Støndards oÍ Revieh' >
utder Code Civ. Proc., $ 998.                                      Abuse oJ Dísuelion
                                                                   [HN1] Whether a Code Civ. Proc., $ 998, offer was rea-
OVER\¡IEW: The claimant was injured while helping                  sonable and made in good faith is a matter left to the
the owner's tenant to move a refrigerator. The parties had         sound discretion of the trial court, and will not be re-
a close relationship, and the claimant waited eight                versed on appeal except for a clear abuse of discretion.
months before hling the lawsuit. He w¡ote a letter before
the suit was filed, stating the amount ofhis medical bills
and requesting that they be paid. His complaint listed his         Civil Prccedurc > Selllemenls > OÍÍers ol Judgmenl >
medical expenses and sought damages for lost wages,                Maküng of Offets
                                                                                                                  Pãge 2
                                   166 Cal. App. 4th444,*;82 Cal. Rptr. 3d 715,
                                           2008 Cal. Àpp. LEXIS 1370, **+


Evidence > Inferences & Prcsumptions > Presumptions          CALIFORNIA OFFICIAL REPORTS SUMMARY
[HN2] One factor to be considered by a trial court as to          Following a jury Íial, the trial court found a prop-
the reasonableness of a Code Civ. Proc., $ 998, offer is
                                                             erty owner liable to a personal injury claimant, denied
the amount offered as compared to the judgment ulti-
                                                             tÌìe oùne/s motion to tax certain costs, and awarded
mately recovered. Where the offeror obtains a judgment
                                                             those costs to the claimatú tnder Code Civ. Proc., $ 998.
more favorable than its offer, the judgrnent constitutes
                                                             The claimant was injured while helping the owner's ten-
prima facie evidence sho\rying the offer was reasonable.
                                                             ant move a refrigerator. The parties had a close relation-
                                                             ship, and the claimant waited eight months before filing
                                                             the la\rysuit. He \ryrote a letter before the suit was filed,
Civil Prccedure > SelÍlements > Offers oJ Judgment >
                                                             stating the amount of his medical bills and requesting
Making oÍ OÍÍeß
                                                             that they be paid. His complaint ]isted his medical ex-
[HN3] Ifthe offeree has no reason to V¡ow a Code Civ.        penses and sought damages for lost wages, and he sewed
Proc., $ 998, offer is reasonable, then the offeree ca¡rot
                                                             his $ 998 offer with the summons and complaint. The
be expected to accept the offer.
                                                             claimant's offer was less than the amount of damages
                                                             awarded by the jury. (Superior Court of San Joaquin
                                                             County, No. CV025582, Lauren P. Thomasson, Judge.)
Civil Prccedurc > Sefllemenß > OlÍeß oÍ Judgmenl >
Møking oÍ Oîîeß                                                   The Court of Appeal affirmed the judgment and af-
[HN4] Because the Legislature has made an award of           finned the order denying the owner's motion to tax costs.
costs under Code Civ. Proc., $ 998, discretionary, trial     The court held that the trial court did not abuse its discre-
courts may properly consider whether an offer was made       tion in awarding the claimant his fees and costs pursuant
in good faith and was reasonable under the existing cir-     to $ 998. The court observed that a judgment more fa-
cumstances. Even assuming a situation where a defen-         vorable than an offer constitutes prima facie evidence
dant has no information about the plaintiffs damages         that the offer was reasonable; moreover, the claimanfs
when served with an early $ 998 offer, defense counsel       offer came close to the amount of damages awarded. The
may request that plaintiff provide informal discovery on     owner could have requested additional time to respond to
the damage issue and/or allow an extension of time to        the offer if he did not believe that he had sufficient in-
respond to the demand. If plaintiffs counsel refused to      formation to evaluate its reasonableness. Although $ 998,
accord the defendant these courtesies and unyieldingly       subd. þ), sets a deadline beyond which an offer camot
insisted that defenda.nt respond without information, such   be served, there is no minimum period following com-
conduct coüld then be presented to the trial court when it   mencement of suit for service of a valid $ 998 offer.
considered whether to a\ryard special fees and costs. Un-    (Opinion by Butz, J., with Robie, J., concurring. Concur-
doubtedly, such obstinacy would be viewed as potent          ring and dissenting opinion by Sirns, Acting P. J. (see p.
evidence that the plaintiffs offer was neither reasonable    4s2).) f*44s1
nor made in good faith. This is exactly the way $ 998
was designed to operate: to encoüage the parties to con-     HEADNOTES
sider the option of settlement seriously, before signih-
cant fees are incurred and they become entrenched in         CALIFORNIA OFFICIAL REPORTS HEADNOTES
their positions.
                                                             (1) Costs S l2--Items .Allowâble Oth€r than Attorney
                                                             Fees--Costs Äfter Rejection of Off€r to Compromise--
Civil Procedure > Seltlemenls > OÍÍets oÍ ,Iudgmenl >        Reasonâbleness of Offer.--One factor to be considered
Møking oJ Olfers                                              by a trial court as to the reasonableness of a Code Civ.
[HN5] Code Civ. Proc., f 998, subd. (å), allows an offer     Proc,, $ 998, offer is the amount offered as compared to
of compromise to be served until i0 days prior to com-       the judgment ultimately recovered. Where the offeror
mencement of Íial. Thus, while it purposely set a dead-       obtains a judgment more favorable than its offer, the
line beyond which the offer may not be served, the Leg-      judgment constitutes prima facie evidence showing the
islatue did not impose any minimum period that must          offer was reasonable.
elapse following commencement of suit for service of a
valíd $ 998 offer. The Legislature's choice in this a¡ea     (2) Cosis $ l2-Items Allowable Other than Attomey
must be respected; a judicial waiting period cannot be       Fees--Costs Aft€r Rejection of Offer to Compromise--
imposed for serving an offer to compromise.                  Reasonableness of Offer-Information Known to Of-
                                                             feree.--If the offeree has no reason to know a Code Civ.
SUMMARY:                                                     Proc., $ 998, offer is reasonable, then the offeree cannot
                                                             be expected to accept the offer.
                                                                                                                  Page 3
                                    166 Cal. App. 4th444,+;82 cal. Rptr. 3d 715, xx;
                                             2008 Cal. App. LEXIS 1370, ***


                                                               mencement of suit for service of a valid $ 998 offer. The
(3) Costs S l2-Items Allowable Other thân Attorney             Legislature's choice in fhis area must be respected; a ju-
Fees--Costs Aft€r Rej€ction of Offer to Compromise--           dicial waiting period cannot be imposed for serving an
Reâsonableness of Offer-Timing of Offer,-In tender-            offer to compromise,
ng   a Code Civ. Proc., $ 998, offer at an early stage of
the lawsuit, a personal injury claimant was not playing        COUNSEL: Cavazos Law Firm and Hector A. Cavazos,
"hide the ball." The parties had a close, semifamilial rela-   Jr., for Defendant and Appellant.
fionship, and there was a ftee flow of information be-
tween them. The claimant waited eight months after the         Aaron O. Anguiano for Plaintiff and Respondent.
accident before filing the lawsuit. He wrote a letter be-
fore the suit was filed, stating the amount of his medical     JUDCES: Opinion by Butz, J., w¡th Robie, J.. concur-
bills and requesting that they be paid. The letter fell on     ring. Concuring and dissenting opinion by Sims, Acting
deaf ea¡s. Finally, the claimant's Code Civ. Proc., $ 998,     P. J.
offe¡ was served along with a complaint listing medical
expenses and seeking damages for lost wages. The trial         OPINION BY: Butz
court did not abuse its discretion in awarding the claim-
ant his fees and costs pusuant to 'ç. 998.                     OPINION
       lCal. Forrns of Pleading qnd Prqctice (2008)     ch.          l**7161 BUTZ, J.-Following a special verdict by
174, Costs and Atlorney's Fees, S 174.17;2 Cafr]:cafi et       the jury, the trial court entered judgment in favor of
al., Matthew Bender Practice Guide: Cal. Trial and Post-       plaintiff and respondent A¡tonio Barba for S 117,053.42
Trial Civil Procedure (2008) $ 24.29; 6 Witkin, Cal. Pro-       against defendant and appellant Lupe Perez. Following
cedule (5th ed. 2008) Proceedings Without Trial, $ 91 .l       judgment, Perez moved to tax certain costs Barba had
                                                                claimed under Code of Cfuíl Procedure section 998. I
(4) Costs $ l2--Items Allowable Other than Attorney            Perez's motion was denied in part and granted in part.
Fe€s--Costs ,{fter Rejection of Offer to Compromise--
Reasonableness of Offer-Timing of Offer.--Because                        I   Undesignated statutory references are to the
the Legislature has made an award of costs under Code                    Code of Civil Procedure.
Civ. Proc., $ 998, discretionary, tlial courts may properly
                                                                     Perez appeals ftom the judgment and the order deny-
consider \ryhether an offer was made in good faith and
                                                               ing his motion to tax costs, contending that (1) the jury's
was reasonable under the existing cfucumsfârces. Even
                                                               verdict is not supported by substantial evidence; (2) the
assuming a situation where a defendant has no informa-
                                                               trial court erred in denying his motion for nonsuit based
tion about the plaintiffs damages when served with an
                                                               on arì agency theory of liability; (3) the trial court ened
early $ 998 offer, defense counsel may request that plain-
                                                               in rejecting his proposed special jury instruction; and (4)
tiff   provide informal discovery on the damage       issue
                                                               the trial court ered in allowing Barba to recover section
and/or allow an extension of time to respond to the de-
                                                               998 costs against him. ¡**2, We shall affirm the judg-
mand. If plaintiffs counsel refused to f*4461accord the
                                                               ment and order denying the motion to tax costs. [*4471
defendant these courtesies and unyieldingly insisted that
defendant respond without information, such conduct
                                                               FACTUAL BACKGROUND
could then be presented to the trial court when it consid-
ered whether to award special fees and costs. Undoubt-                 Viewing the evidence most favorable to respondent
edly, such obstinacy would be viewed as potent evidence        (Barba), as     we must (In re Paul C. (1990)            221
that the plaintiffs offer was neither reasonable nor made      Cø[App.3d 43, 52 [270 CøL Rpn. j69]), the record dis-
in good faith. This is exactly the way $ 998 was designed      closes the following facts.
to operate: to encourage the parties to consider the option
                                                                    On May 18, 2004, Perez was the orryner of the
of settlement seriously, before significant fees are in-
                                                               Tropical Club in Lodi, which included a rental housing
curred and they become entrenched in their positions.
                                                               unit above the club. At the time of the events at issue,
                                                               Pe¡ez was 82 years old, blind, and confined to a wheel-
(5) Costs $ l2-Items Allowable Other than Attorney
                                                               chair. Because of his infirmities, his wife Leticia Perez
Fe€s--Costs After Rejection of Offer to Compromise--
                                                               (Leticia) ' was managing Perez's businesses for him, as
Reasonableness of Offer-Timing oI Offer.-Code Civ.
                                                               she had been since May 2003. As paxt of her managerial
Proc., $ 998, subd. þ), allows an offer of compromise to
                                                               duties, Leticia collected rent for the housing unit, hired
be served until l0 days pdor to commencement oftdal.
                                                               staff a¡d musicians for the club, paid the employees, and
Thus, while it purposely set a deadline beyond which the
offer may not be served, the Legislature did not impose        [**7171 coordinated with vendors for the club's supplies.
any minimum period that must elapse following com-
                                                                                                                     Page 4
                                      166 Cal. App. 4th 444,*; 82 Cal. Rptr. 3d715, **;
                                              2008 Cal. App . LEXIS 1370, ***


          2   To avoid confusion between Lupe Perez and              On January     ll, 2005, Barba filed a complaint
          his wife Leticia, we will refer to Leticia Perez by    against Perez, alleging Perez was vicariously liable for
          her füst name. No disrespect is intended.             his injuries due to the negligence of "þisl
     On May 18, 2004, Barba and his wife visited Leticia
                                                                 [*448] employee and/or agentl, Juan Mendoza]." On
at the aparÍnent above the Tropical Club. Juan Mendoza,
                                                                 Ia )ary 20,2005, Barba served Perez with a summons
                                                                 and complaint, along with an offer to settle the case for $
a musician at the club and occasional aide to Perez, was
                                                                 99,999.99 pursuant fo section 998.
also there, preparing to move into the apartment with his
wife. Earlier that day, Leticia had asked Mendoza                    The case was tried to a jury. The jury answered
[***31 to move an old refrigerator out of the apartment          questions posed on a special verdict form, as follows:
to make room for the new one. When Ba¡ba and his wife
                                                                     "1. Was JUAN MENDOZA negligent?
axrived at the apartment to visit, she asked Barba to help
Mendoz¿ move the refrigerator.                                       "[ANSWER: Yes.]       ...

     The record contains conflicting testimony of the in-              "2. Was JLIAN MENDOZA'S negligence a substan-
cident; however, it appears that Barba and Mendoza put           tial factor in causing harm to ANTONIO BARBA?
the refrigerator on a dolly and together began moving it
down the stairwell, with Mendoza holding the dolly han-
                                                                     "[ANSWER: Yes.]       ...

dles at the top ofthe stairs and Barba holding the refiig-           "3. Was JUAN MENDOZA the agent of LETICIA
erator fiom the bottom. After moving the refrigerator a          PEREZ   OT   LUPE PEREZ?
short distance, Mendoza suddenly let go of the dolly
handles and the refrigerator fell towards Barba. Barba               "IANSWER: Yes.]       ...

attempted to hold up the refrigerator by himself but it                "4. Was ruAN MENDOZA requested to move the
was too heavy. Barba tlied to move out ofthe way as the          refrigerator by LETICIA PEREZ?
refrigerator fell, but it landed on his left foot.
                                                                     "[ANSWER: Yes.]       ...
     Barba was taken to Lodi Memorìal Hospital, and
then transfer¡ed to UC Davis Medical Center, where he               "5. Was LETICIA PEREZ authorized to ask ruAN
underwent surgery fo¡ a broken ankle, As a ¡esull of the         MENDOZA for assistance in moving the refrigerator?
injuries, Barba incurred more than $ 70,000 in medical               "[ANSWER: Yes.]       ...
expenses and lost time from work.
                                                                     "6. Was ANTONIO BARBA negligent?
PROCEDURAL HISTORY                                                   "[ANSWER: No.        "tfì - tfì]   ...

                                                                     "8. What are ANTONIO BARBA'S damages?




"a- Medical exoenses:                                                               s 75-053-42
"b, Loss ofIncome:                                                                  42,000.00
"c. Non-economic loss-
includine Dhvsical
folain/mental sufferins:                                                            0.00
"Total:                                                                             $ 117.053.42



l* 4491                                                             "9. What percentage ofresponsibilþ for ANTONIO
                                                                 BARBA'S haxm do you assign to:
                                                                                                                                 Page 5
                                                166 Cal. App. 4fh 444, *; 82 Cal. Rptr. 3d 715, +*;
                                                        2008 Cal. App. LEXIS 1370, ***


                                                                            the trial court had jurisdiction," "[i]t is unreasonable to
     [**7181 Based on these answers, the ûial court en-                     expect that [he], when first faced with the service of
tered judgment in favor of [***51 Barba against Perez
                                                                            summons and a complaint, would have a reasonable ba-
for $ I17,053.42.
                                                                            sis to believe an offer to compromise was fair." Perez
                                                                            therefore argues the tlial court abused its discretion in
DISCUSSION
                                                                            denying his motion because at the time Barba sewed him
                                                                            vtith the section 998 offer, he "had absolutely no basis to
I.-III,' INOT CERTIFIED                 FOR PUBLICATION]
                                                                            determine    ifthe offer [***7ì   was reasonable."
            *   See footnote, ante,page 444.                                     [HNl] Whether a section 998 offer was reasonable
                                                                            and made in good faith is a matt left to the sound dis-
lY. Seclion 998 Costs                                                       cretion ofthe trial court, and will not be reversed on ap-
                                                                            peal except for a clear abuse of discretion. (Nelson v.
Procedural background'                                                      Anderson (1999) 72 Cal.App.4th 111, Ì35-1j6 [84 Cal.
                                                                            Rptr. 2d 753J; cf. Tech-Bilt, Inc. v. Woodward-Clyde &
            *   See   footnote, ante,page 444.                              Associates (198Ð 38 Cql.3d 488, 502 [213 CdL Rpt.
                                                                            256, 698 P.2d t 591.)
        Along with the summons and complaint, Barba
served Perez with an offer to settle the case pursuant to                        [HN2] (f) One factor to be considered by the trial
section 998 for S 99,999.99.' Perez did not respond to                      court as to the reasonableness of a sectíon 998 offer is
the offer and frled an answer to the complaint almost                       the amount offered as compared to the judgment uiti-
four \ryeeks later,                                                         mately recovered. (Elrod v. Oregon Cummins D¡esel,
                                                                            Inc. (1987) 195 CaLApp3d 692, 699-700 [241 CaL Rpt.
            3     Section 998 establishes a procedule to shift              1081 (Elrod¡.) Where the offeror obtains a judgment
            costs  if a party fails to accept a reasonable settle-          more favorable than its offer, the judgment constitutes
            ment offer presented not less than 10 days before               prima facie evidence showing the offer .,vas reasonable.
            trial. It provides that ifa defendant fails to accept           (Id. øt p. 700.) Perez points to nothing in the record re-
            a written offer to compromise by a plaintiff and                butting this presumption. Indeed, the offer came re-
            fails to obtain a more favorable judgment, the de-              markably close to the amount of damages ultimately
            fendant must pay the plaintiffs costs incurred af-              awarded by the jury.
            ter fhe offer, and may be ordered to pay the ex-
                                                                                               langl.J'age h Elrod sÍa:ril¡.g [HN3] that
                                                                                    (2) Perez uses
            pert witness fees. ($ 998, subds. (b), (d).)
                                                                            "[i]fthe offeree has no ¡eason to know the offer is rea-
     Following entry of judgment in the amount of $                         sonable, then the offe¡ee cannot be expected to accept
ll7 ,053.42, Barba filed a memorandum of costs, includ-                     the offer" (Elrod, supra, 195 Cal.App,3d øt p. 699)
ing prejudgment interest and expert witness fees, pursu-                    [**7191 to axgue that he did not have "a reasonable basis
aît to section 998. Perez filed a motion to tax [***6]                      to believe [the ofer] [***8] was fair."
costs, contending that such fees and costs were not re-
                                                                                 Perez's reliance ot Elrod is misplaced. In Elrod, we
coverable. The trial court denied this aspect of the mo-
        a                                                                   upheld the trial court's determination that a defendqnt's
tion.
                                                                            low-ball settlement offer to a plaintiff \ryas not reason-
                                                                            able, where the defendant possessed crucial information
            4  The hial court granted the motion to tax costs
                                                                            limiting its exposue that was unknown to the plaintiff.
            with regard to a filing fee fhat had been reim-
                                                                            (Elrod, suprø, 195 Cal.App.3d at pp. 700-702.)
            bursed previously and a service of process fee
            because the court determined fhe method of ser-                      (3) Here, Barba was not playing "hide the ball." The
            vice was neither reasonable nor necessary.                      parties had a close, semifamilial relationship, and there
                                                                            was ffee flow of information between them. Barba
A.-8.'                                                                      waited eight months after the accident before filing the
                                                                            lawsuit. He wrote a letter before the suit was filed, in-
        INOT CERTIFIED FOR PUBLICATION]                                     forming defendanfs agent that his medical bills were
            *   See   footnote,   a/?   te, p?ge 444.
                                                                            about S 70,000 and requesting that they be paid. The
                                                                            [*451] letter fell on deaf ears. Finally, Barbds section
 r4s0l                                                                      998 offer was served along with a complaint listing
                                                                            medical expenses in excess of $ 70,000 and seeking
C. Reasonøbleness ofSection 998 OlÍer
                                                                            damages for lost wages.
        Perez contends that "fe]ven assuming, arguendo, that
service     of the [section] 998 [offer] was effected while
                                                                                                                       Page 6
                                     166 Cal. App. 4th 444,*i 82 Cal. Rptr. 3d 715, +x;
                                              2008 Cal. App. LEXIS 1370, *+*


     The purpose of section 998 is to encourage pretrial        the Legislature did not impose any minimum period that
settlements and avoid needless litigation. (7, M. Cobb          must elapse following [***111 commencement of suit
Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204            for service of a valid section 998 offer. We respect the
Cal. Rptr. 143, 682 P.2d 338J; Føssberg Construction            Legislatüe's choice in this area and refüse to impose a
Co. v. Housing Authorily of Los Angeles (2007) 152              judicial "waiting period" for serving an offer to compro-
Cøl.App.4th 720, 764 [60 Cø\. Rptr. jd j7s].) "fTlhe            mise.
trial judge who heard all ofthe evidence and presumably
[***91 rvas in the best position to evaluate [Barba's] offer     DISPOSITION
... concluded that it was reasonable." (Santantonio v.               The judgment and order denying the motion to tax
Westinghouse Broadcasting Co. (1994) 25 Cøl.App.4th
                                                                 costs are each afhrmed. Plaintiff is awarded his costs on
102, 117 [30 Cal. Rpfu.2d486].) We cannot conclude,
                                                                 appeal (Cal, Rules ofCourt, rule 8.278(a)(1).)
under the present facts, that the trial court abused its dis-
cretion in awarding Barba his fees and costs pußuant to              Robie, J., concurred.
section 998.
                                                                 CONCUR BY: Sims
     Our dissenting colleague advocates a far-reaching
extension of Elrod, concluding that, absent the almost
                                                                 DISSENT BY: Sims
uheaxd-of fact scenado that he poses, any section 998
offer served by a plaintiff before the answer is due is per
                                                                 DISSENT
se unreasonable, ostensibly because the defendant has
not had an adequate opportunity to conduct discovery on              SIMS, Acting P, J,, Concurring ard Dissenting.-I
the issue ofdamages. We disagree.                                concur in parts I., II. and UI. ofthe   majorþ opinion.
     tHN4l (4) Because the Legislature has made an                   I   respectfutly dissent from part IV., which affirms
award of costs under sectíon 998 discretionary, appellate        the trial court's award of prejudgment interest and expert
decisions have held that trial courts may properþ con-           witness fees under Code of Civil Procedure sectíon 998.
sider whether the subject offer was made in good faith           (Undesignated statutory references are to the Code of
and was reasonable under the exìsting circumstances.             Civil hocedure.) ln my view, plaintiffs section 998 offer
(Burch v. Children's Hospítal of Orange Coun4t Thrift            (998 offer), which was served at the same time as the
Stores, Inc. (2003) 109 Cøl.App.4th 537, 548 [135 CaL            summons and complaint, was invalid. The majority's
Rptr. 2d 4041i Elrod, supra, 195 Cal.App.3d øt pp. 699-          contrary conclusion unfortunately adds another wicked
700; Weør v. Cqlderon (1981) 121 Cal.App3d 818, 821              slider to a plaintiffs arseúal of ha¡dball litigation tactics;
[175 CaI þtL 566]; Pineda v. Los Angeles Turf Club,              serving a 998 offer with the summons and complaint.
Inc. (1980) 112 Cøl.App.3d 53, 63 [169 Cal. Rpn. 66].)
                                                                      ht Elrody. Oregon Cummins Diesel, Inc. (1987) 195
[***l0l Even assuming a situation (unlike the one pre-           Cal.App.3d 692 [241 Cal. Rpt. 108] (EIroò¡, this court
sented here) where a defendant has no information about
                                                                 stated: "[T]he section 998 mechanism works only where
the plaintiff s damages when sewedwifh at errly section
                                                                 the offeree has reason [***121 to know the offer is a
998 offer, defense counsel may request that plaintiff pro-
                                                                 reasonable one. If the offeree has no reason to know the
vide informal discovery on the damage issue and/or al-
                                                                 offer is reasonable, then the offeree ca¡¡rot be expected
low ar extension of time to respond to the demand. If
                                                                 to accept tlre offer. " (Id. qt p. 699 .)
plaintiffs counsel refrrsed to accord the defendant these
courtesies and unyieldingly insisted that defendant re-              ln    Wilson   v.   Wel-Mart Stores,    Inc. (1999)    72
spond without information, such conduct could then be            Cøl.App.4th 382 [85 CaL Rpfu. 2d 4], this court recog-
presented to the trial court when it considered whether to       nized the importance of insuring that a party served with
award special fees and costs. Undoubtedly, such obsti-           a 998 offer be given a reasonable opportunity to evaluate
nacy would be viewed as potent evidence that plaintiffs          the offer. In llilson, Íhe plaintiff served a 998 offer, in
offer was neither reasonable nor made in good faith.             the amount of$ 150,000, early iî lhe liligalior' (Id. at p.
                                                                 j87.) The offer was not accepted and was deemed re-
     This is exactly the way sect¡on 998 was designed to
                                                                 jected. (Ibid.) Closer to trial the plaintiff served a second
operate: to encourage the parties to consider the option of
                                                                 998 offer in the amount of $ 249,000, which was also
settlement seriously, before signifrcant fees are incur¡ed
                                                                 deemed rejected. (Ibid.) TIte jury's verdict was for $
and they become entrenched in their positions. [*4521
                                                                 17s,000. (rbid.)
      [**7201 [HN5] (Ð Section-gg9, subdivision (b) al-               The question before this court was whether the fi¡st
lows an offer of compromise to be served until l0 days
                                                                 998 offer, for S 150,000, remained valid. Applying Íadi-
prior to commencement oftrial. Thus, while it purposely
                                                                 tional contract principles, we concluded the second 998
set a deadline beyond which the offer may not be served,
                                                                 offer served to revoke the first offer. (Wilson t,. l*4531
                                                                                                                     Page 7
                                    166 Cal.   App.4th 444,xi82Cal. Rptr. 3d 715, x*
                                               2008 Cal. App. LEXIS 1370, *+*


Wql-Mqrt Stores, Inc., supra, 72 Cøl.App.4th at p. 390.)             Imagine, ifyou will, the litigation fren4/ that \{ill be
But we also reasoned that allowing the frrst 998 offer to       produced if defense counsel must also øke the plaintiffs
remaìn valid would not further the purpose of secfion           deposition ard obtain medical specials during this 30-day
998, which is to encourage settlements. We said,                period. Not to mention the retention of expefs and ob-
"[T]here is an evolutionary aspect to lawsuits and the          taining opinions from them.
law, in fairness, must allow the pa.rties [***131 the op-
                                                                    Why on earth do we want to do this?
portunity to review their respective positions as the law-
suit matures. The litígants should be given a chdnce to              The majority proffer arguments why plaintiffs 998
learn the facts that underlie the d¡spute qnd consider          offer was reasonable and valid in this case.
how the law øpplies beþre they are asked to make q de-
                                                                     Thus, the majority assert "the parties had a close,
c¡sion that, íf made incorrectly, could add significøntly to
                                                                semifamilial relationship, and there was Aee flow of in-
their costs of tríq|." (Wilson v. Wal-Mart Stores, Inc.,
                                                                formation between them." (Maj. opn., ante, al p. 450.)
supra, 72 Cal.App.4th at p, 390, italics added.)
                                                                However, the "free flow" of information ffom plaintiffas
    I do not think defendant in this case was given a rea-      to his damages was contained in a letter from plaintiff to
sonable opportunity to evaluate plaintiffs 998 offer,           defendanl which is not a part ofthe record. With respect,
which was served with the summons and complaint.                I do not think a defenda¡t should be obligated to evaluate
                                                                a S 99,000 offer based on damages information supplied
     I thinÌ a defendant should be entitled to complete         informally (not under oath) by a plaintiff or his attomey.
minimal discovery before being expected to evaluate and
                                                                Although plaintiffs' attorneys are officers of the court, on
respond to a 998 l**7211 offer. In the present case, for
                                                                rare occasions such attomeys have been known to inflate
example, I should think that a defendant should be enti-
                                                                their client's damages in demand letters lvritten prior to
tled, at a minimum, to take the plaintiffs deposition ard
                                                                discovery. [***16l In my view, a 998 offer approaching
to use formal discovery procedures to discover his medi-
cal specials from medical providers.
                                                                $ 100,000 can be reasonably evaluated only after basic
                                                                discovery procedures (requiring responses under oath)
     Yet, in this case, defendant was requùed to respond        have been used.
to plaintiffs 998 offer within 30 days of service of sum-
                                                                     The majority also argue that "defense counsel may
mons and complaint--the same period of time in which
                                                                request that plaintiff provide informal discovery on the
defendant was obligated to answer the complaint. Thus,
                                                                damage   issue andlor allow an extension of time to re-
section 998, subdivision (b)(2), provides, "Ifthe ¡***1n,
                                                                spond to the demand." (Maj. opr., ønte, at p. 451.) As I
offer is not accepted prior to trial or arbiÎJafion ot within
                                                                have already explained, informal discovery is unsatisfac-
30 døys after it is made, whichever occurs rtrsL it shall
                                                                tory. Aîd section 998 provides no mechanism to obtain a
be deemed withdrawn, and carìnot be given in evidence
                                                                court order extending the time to respond to a 998 offer.
upon the trial or arbitration." (Italics added.) Thus, plain-
                                                                Defense counsel should not be at the mercy of plaintiffs
tiffs 998 offer had to be accepted within 30 days of its        counsel's charitable mood.
service (at the same time as the summons and complaint)
or else it was deemed withd¡awn and could not thereafter            I can envision at least one scenario in which such
have been accepted. (The period to respond to a com-            service of a 998 offer would be Í**7221 reasonab'le.
plaint is 30 days; see $ 412.20, subd. (ø)(3).)                 Imagine a scenario in which plaintiff files a lawsuit for
                                                                personal injury; defendant answers; and discovery ís
     While it is technically true that a defendant can no-
                                                                conducted. But, on the eve of trial, plaintiffs counsel,
tice the deposition of the plaintiff as soon as the defen-
                                                                who is unprepared for trial, dismisses the lawsuit without
dant   is   served   with the summons and complaint ($          prejudice. When plaintiffrefiles that lawsuit, in my view,
2025.210, subd. (a)),I do not think it is a good idea to
                                                                either plaintiff or defendant would act reasonably in
force defendants to jam basic discovery into the 30 days
                                                                serving a 998 offer as soon as defendant is served wìth
following service ofthe summons and complaint in order
                                                                the summons and complaint. The key is that the party
to respond to a 998 offet. As a practical matter, here is
                                                                receiving a 998 offer has had the opportunity for basic
what typically has to happen within 30 days following
service of a personal injury cornplaint upon a defendant:
                                                                [***17] discovery.
(l) The defendant has to deliver the summons and com-               In the instant case, I would conclude, following
plaint to his insurance car.let (2) A claims adjuster for       Elrod, supra, 195 Cal.App.3d 692 and lYilson v. Wal-
the insurer has to review the allegations of the complaint      Mqrt Stores, lnc., supra, 72 Cal.App.4th 382, that defen-
with the insured; (3) The claims adjuster [***151 has to        dant did not have a reasonable opportuniry to leam the
line up counsel for the defendant; (4) Defense counsel          facts and ctcumstances of plaintiffs claim and, there-
has to discuss the allegations of the complaint with the        fore, the 998 offer was invalid. [*455]
insured and prepare an answer. [*4541
                                                                                     Page 8
                                 166 Cal. App. 4th 444,*;82 Cal. Rptr' 3d 715'
                                                                               *x;
                                          2008 Cal. App. LEXIS 1370,  **'r


     I would modiry the judgment by excisilgthe section
 998 costs awarded to plaintiff and otherwise afhrm the
judgment as modified.

				
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