Message Is “Clarity Is King” In Framing These Offers, Especially Where A Civil Code Section 1542 Release Is Desired By The Offeror.
Rachel E. Lustig, in an article appearing in the November 2025 Orange County Lawyer at pages 46-47entitled “Avoiding The Pitfalls: What K.M. v. Grossmont Union Teaches About Drafting Enforceable Section 998 Offers,” discusses the impact of K.M. v. Grossmont Union, 85 Cal.App.5th 717 (2002) on drafting enforceable CCP § 998 offers.
K.M. invalidated a section 998 offer because an offeror wanted a Civil Code section 1542 waiver of unknown claims, but offeror failed to describe the desired release in detail and failed to attach a settlement agreement with the release to the offer—just saying that a section 1542 is required was deemed insufficient by the 4/1 DCA.
Ms. Lustig suggests the following drafting tips for section 998 offers based on K.M.:
- Attach any referenced settlement agreement if the offer requires execution of a settlement agreement.
- Avoid vague phrasing like desiring “standard releases” or “mutually agreeable terms.”
- Be specific with the section 1542 waivers being desired as a condition of acceptance.
- Keep it self-contained.
- Record all terms clearly in writing.