June 15, 2011
Previously published on June 8, 2011
Speaking of Code of Civil Procedure section 998 offers, another decision came out on May 25, 2011. It is interesting because one would think that the issue had already been covered by a published opinion, but apparently not. The case is Puerta v. Torres, 2011 Cal.App. LEXIS 649. And it holds, simply enough, that if a 998 offer lacks a place for the offeree to accept by signing, the offer is invalid. Puerta is another one of those cautionary tales. There, the defendant offered to waive costs in exchange for a dismissal. Plaintiff refused the offer and defendant prevailed at trial. Defendant moved for expert-witness fee shifting pursuant to 998. The trial court awarded some $5,300 in fees to defendant. But the Court of Appeal reversed. It noted that the 998 statute was amended in 2006 to state, "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." Applying the "plain meaning" principles of statutory construction, the appellate court held that the Legislature meant what it said, and that 998 offers are invalid without the acceptance provision. The court also noted that requiring written acceptance (by signing the 998 offer where indicated, or by separate writing), and providing a place for acceptance in 998 offers, eliminates disputes that otherwise arise over oral acceptances. It's probably a rare case that goes to trial and has expert witness fees of only $5,300. And imagine explaining to your client that expert witness fees could have been recovered, but you forgot to put a place in the 998 offer to indicate acceptance. The salt in the self-inflicted wound will be the irony that the plaintiff never accepted--so it didn't matter that there was no place for acceptance. How about avoiding all this by simply inserting the right words in your 998 offers?
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