After All, 998 Plaintiff Offeree Did Receive Acceptance By Mail From Defense.
Safeway Food & Drugs. Photographer: John Margolies. 2003. Library of Congress.
This next case, Lee v. Safeway Inc., Case No. A148301 (1st Dist, Div. 2 June 26, 2017) (unpublished), is interesting in the way both the trial and appellate courts confronted a 998 “acceptance” issue.
In short, plaintiff in a vehicle injury case (only to the car itself) offered to settle pursuant to a CCP § 998 offer for $2,669.69, an offer which defendant accepted by letter. However, plaintiff’s 998 offer had this language: “If defendants accept this C.C.P. section 998 offer, please have their attorney of record sign below without any changes and return this offer to [counsel’s address] via FAX and First-Class U.S. Mail at [a specified address].) On the last day to do so, defendant’s counsel sent a letter signed by its attorney advising that defendant accepted the offer. Because counsel apparently did not get along, there some post-acceptance activities, with plaintiff taking the position that the letter acceptance did not comply with specific acceptance modes of both FAX and mail return.
The trial court enforced the defense 998 acceptance of the offer, a determination affirmed on appeal.
The appellate court took a pragmatic view of the issue by endorsing the defense and trial court’s perspective that the 998 offer (with “please” language) was not entirely clear, such that FAX and mail was not an absolute mode of acceptance requirement but merely a “permissible method” of acceptance. (Discussing, by analogy, Pacific Corporate Group Holdings, LLC v. Keck, 232 Cal.App.4th 294, 312 (2014); Estate of Crossman, 231 Cal.App.2d 370, 372-373 (1964).)
BLOG OBSERVATION—This case counsels that mandatory modes of acceptance of 998 offers need to be made in a way such that they are requirements and conditions to the validity of 998 pre-trial settlement process. We also believe the Court of Appeal was swayed by the fact that, while the defense 998 offer was outstanding, plaintiff advised defense lawyers that fax service was unacceptable—even though it likely only applied to post-activities in the case.