Fifth District Sides With Johnson On Appellate Split in Thinking.
McDaniel v. Asunsion, Case No. F064240 (5th Dist. Mar. 27, 2013) (published) is a situation where the Fifth District had to consider the issue of whether a joint offer made to multiple wrongful death plaintiffs was invalid under Code of Civil Procedure section 998 jurisprudence, after the trial judge awarded a successful defendant about $41,000 in expert witness expenses after plaintiffs rejected a $100,000 998 joint offer to multiple wrongful death plaintiffs and later defensed them at trial.
The Fifth District had to steer through an appellate split in thinking, anchored in these realities for wrongful death cases: (1) Gilman v. Beverly California Corporation, 231 Cal.App.3d 121 (1991) invalidated a joint 998 offer; (2) Stallman v. Bell, 235 Cal.App.3d 740 (1991) validated a joint offer; and (3) Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613 (1994) sided with Stallman on the issue of whether a joint offer was valid.
In light of this appellate controversy, the Fifth District in McDaniel sided with Johnson and Stallman. However, it even went further: all of the other reported cases involved 998 offers made by multiple plaintiffs, not made to multiple plaintiffs by a single defendant. Because there is a lump sum recovery in wrongful death cases because the action is jointly indivisible in nature, no apportionment was needed when an offer came from the defense.