Also, Joint Offer To Husband And Wife Was Valid.
In Gunter v. Schneier, Case Nos. B271517 & B277066 (2d Dist., Div. 1 Feb. 28, 2018) (unpublished), husband and wife, as plaintiffs, sued a neurosurgeon for medical malpractice, but lost after a jury verdict found the doctor was not negligent. Earlier, but two years into the litigation and 20 days before trial, doctor served a 998 offer to both plaintiffs by which he offered to waive costs and malicious prosecution/abuse of process claims in exchange for a dismissal with prejudice, an offer which was rejected. After trial, the lower court awarded $111,016.11 in costs (including expert witness fees).
Plaintiffs’ challenges on appeal did not resonate.
The 998 offer was unambiguous and there is nothing invalid about the offer where the offeror offers to waive tort claims in exchange for a costs waiver (as opposed to an offeror asking an offeree to waive claims other than those involved in the lawsuit). Beyond that, the offer was made in good faith given it was done deep in the litigation so that plaintiffs could assess their prospects at trial. Finally, the joint offer to aligned husband and wife, where any recovery would be community property proceeds, was valid.