Wednesday, September 12, 2012


Plaintiff was injured in a car accident.  Jury awarded her $77,986 in compensatory damages and $1,400 in punitive damages.  Post trial defendant filed a memorandum of costs—“Hey, even though I lost I get my costs!—asserting that plaintiff had failed to best defendant’s Code of Civil Procedure §998 offer of $100,000.49.  (“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment ... plaintiff shall ... pay the defendant’s costs ...”  CCP §998(c)(1)) 

Plaintiff moved to tax [vitiate] defendant’s cost bill because (as defendant conceded) “his offer did not comply with all the requirements of section 998.”  It seems defendant had failed to include the provision (called for by CCP §998(b)) “that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”  Defendant contended that his “omission was harmless and should not have been interpreted to invalidate the offer ...”; and that to conclude otherwise would “elevate form over substance, thereby defeating the legislative intent behind section 998 ... [which is] to encourage early settlement of lawsuits ... by punishing a party who fails to accept a reasonable offer from the other party.”  (internal quotations and citations omitted)  
The appellate court noted—undoubtedly much to defendant’s deep chagrin—“[I]f the language of the statute is clear and unambiguous, appellate courts must follow the plain meaning of the statute ...”  And: “The plain language of the statute [herein: CCP §998] requires all offers to contain an acceptance provision.”  

The appellate court affirmed the trial court’s order granting plaintiff’s motion to tax: no costs for defendant.  

(Perez v. Torres (2012) 206 Cal.App.4th 418)

John S. Spencer
Sausalito CA 94966