Second District, Division 5 Affirms Routine Costs Awarded to Defendant.
Code of Civil Procedure section 998 offers are tricky. They require careful evaluation when received. In the next case, plaintiff—not by much—failed to prevail against a 998 offer and was hit with an adverse costs award. Loser raised a lot of arguments on appeal, but to no avail in the wake of a definite 998 offer
In Mkrtchyan v. Chawla, Case No. B211529 (2d Dist., Div. 5 Dec. 4, 2009) (unpublished), plaintiff won a jury award of $5,640 in damages against defendant, who earlier had sent a 998 offer to settle for $9,000 as long as plaintiff would release defendants and affiliates from all claims which were the subject of the pending personal injury case—even though the 998 offer had some clerical mistakes. Plaintiff had earlier not accepted the offer, but here is the rub. Once the postoffer costs were excluded from the calculation (because they are under section 998), plaintiff’s judgment only totaled $8,664.78, a few hundred dollars short of the $9,000 offer. This portended bad things for plaintiff, with the trial court eventually awarding defendant about $14,500 in costs, denying plaintiff’s motion to tax costs except for a minor item.
Plaintiff’s appeal did not succeed in its challenge to the costs award based on defendant beating the 998 offer.
Plaintiff mainly argued that the 998 offer was valid based on the release attached as a condition to the offer. Not so, under these circumstances. Unlike other cases (where unrelated or future claims were asked to be released), defendant only wanted a release relating to claims in the lawsuit—a request that does not invalidate a 998 offer. (Linthicum v. Butterfield, 174 Cal.App.4th 259, 271-272 (2009); Goodstein v. Bank of San Pedro, 27 Cal.App.4th 899, 907-908 (1994).) There was no overreaching by the defendant in structuring the 998 offer.
Plaintiff also complained that the 998 offer was fatally defective because the acceptance line mistakenly stated that plaintiff’s attorney was representing a different party—a misnamed plaintiff. No go, said the appellate panel, because the obvious typographical error did not render the 998 offer invalid. (Slip Opn., at p. 13.)