Recent Second District Decision Illustrates the Pitfalls in Silence or Imprecisely Drafting 998 Offers. In our section entitled “Cases: Section 998,” we have discussed prior posts on Code of Civil Procedure section 998, which allows the parties to contractually allocate treatment of attorney’s fees and costs in settlement agreements or stipulations. […]
Fourth District, Division Three Rules the Offer in Uncertain in an Unpublished Opinion. One of the practice treatises used by many California practitioners has a sample Code of Civil Procedure section 998 offer, which is a cost-shifting mechanism designed to encourage settlement and to penalize a party who fails to accept
Second District Reminds Us That the Two Concepts Are Distinct in Nature in Unpublished Decision. Sometimes succinct opinions contain gems. That happens to be the case with Tennen v. Finstad, Case No. B202404 (2d Dist., Div. 2 Aug. 6, 2008) (unpublished). This decision reinforces that “prevailing party” principles at issue
First District Reverses Fee Sanctions Award and Award to State Under Code of Civil Procedure section 1038, But Affirms 998 Award to State. This next case establishes that fee sanctions must have a firm basis in legislatively-authorized statutes (or implementing rules) that have solid due process protections. Relying only on inherent
Fourth District, Division One Affirms Costs Award Under Section 998 Where Appealing Defendant Failed to Present Adequate Appellate Record to Rebut the Winning Nature of an Initial 998 Offer. Robles v. AutoZone, Inc., Case No. D049259 (4th Dist., Div. 1 July 22, 2008) (unpublished) is a nice primer on burden of
Sixth District Rejects Awarding Oil Company 998 Costs Against Three Unsuccessful Plaintiffs In Contamination Lawsuit. Oil Company was found negligent based on the contamination of a predecessor in a prior negligence action. Later, hundreds of plaintiffs in an adjacent property brought a contamination lawsuit against Oil Company. The trial court set
Second District, Division Six Reverses Expert Witness Cost Award Where No Individual Apportionment Made In Wrongful Death Case. In an earlier post on Alkire v. Vaughn, we discussed how a “single/indivisible damage injury” case could sustain a Code of Civil Procedure section 998 offer to multiple plaintiffs without an apportionment. Conversely,
Fourth District, Division One Does Just That In Consumer Legal Remedies Act/Song-Beverly Act Case. The Song-Beverly Act, Civil Code section 1790 et seq., is a legislatively-crafted scheme to protect consumers buying certain personal goods from defects and providing replacement/repair directives under certain conditions. Section 1794(d) of the Song-Beverly Act provides for
Second District, Division Eight So Rules In Forged Check Case. Code of Civil Procedure section 998 offers made to two or more parties, contingent on all parties’ acceptance and unapportioned, is generally not valid. This happens to be the general case because the offerees do not know with certainty what they
Second District Finds Ambiguity in 998 Offer, Contrasting It With A More Limited Release of Claims Involved in the Operative Lawsuit. If a litigant is going to ask for a release of claims in a 998 offer, the next case offers a lesson in specificity—avoid asking for a release of generalized
