This Is A Change From Prior Law.
Toste v. CalPortland Construction, Case No. B256946 (2d Dist., Div. 6 Mar. 2, 2016) (published) is an important 2016 decision construing an important 2015 amendment to Code of Civil Procedure section 998, the section relating to pretrial offers to compromise.
The most post-worthy portion of the decision considers a 2015 amendment to CCP § 998. Before the amendment (effective January 1, 2016), there was an imbalance on the award of preoffer expert witness fees with respect to pretrial offers to compromise under section 998. Specifically, a plaintiff could not recover preoffer expert witness fees, but only postoffer expert witness fees when a defendant unsuccessfully rejected a 998 offer. However, a defendant could be awarded preoffer expert witness fees under 998 within the trial judge’s discretion. (Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 533 n. 13 (2006).) However, A.B. 1141, effective January 1, 2016, sought to equalize the costs by clarifying that plaintiff was only exposed to 998 expert witness costs “that arose postoffer.” In Toste, the 2/6 DCA, in an opinion authored by Justice Yegan, concluded that this amendment applied to cases pending on appeal such as the matter under consideration, remanding a costs award in favor of two defendants for further consideration.
However, there are other “take aways” from this decision. First, a 998 offer providing for payment of money in exchange for a dismissal of the action is the equivalent of a “judgment” for 998 statutory purposes—a valid offer. Second, a defendant may condition a 998 on the plaintiff’s dismissal and a general release. Third, a 998 offer cannot condition the offer on the approval of a good faith settlement motion. Fourth, a 998 offer requiring that a plaintiff to release and discharge parties and their insurance carriers from all claims set forth in the complaint was valid. Fourth, a 998 offer providing for payment in exchange for a release as to a named party, as well as related entities and individuals, was not infirm in nature.