998 Offer Allowed For Costs/Fees to Plaintiff, Such That This Could Not Be “Double Dipped” Added To The Base 998 Offer Amount; Otherwise, Duplication Existed.
Slater v. Ford Motor Co., Case No. G064350 (4th Dist., Div. 3 Sept. 24, 2026) (unpublished) is highly suggested reading for lemon law defense attorneys on how to craft an intelligent CCP § 998 offer to beat a plaintiff judgment, even where there are various “moving parts” to the offer.
No one disputed that the Song-Beverly Act (lemon law) has a pro-plaintiff attorney fee shifting provision. However, it is subject to fee and costs shifting under CCP § 998 pre-trial offer provisions. Where the two intersect, a well-crafted section 998 offer can blunt substantial exposure for lemon law defendants.
In this one, plaintiff rejected a defense 998 offer, but he did obtain a bench trial judgment for $38,231.58 and a requirement that plaintiff surrender the vehicle to Ford/its designee. However, the defense earlier had made a 998 offer to plaintiff which offered these material terms to be confirmed in a judgment against the defense: (1) $42,151.58 monetary payment upon a vehicle surrender; (2) from that offered amount, Ford would pay off any lienholder on the vehicle; and (3) plaintiff would be deemed the prevailing party to seek any costs or attorney’s fees, with Ford having the right to oppose those requests. Both sides filed costs memorandum for preoffer/postoffer costs, with the lower court effectively granting plaintiff total relief on the routine costs memoranda—some to plaintiff and nothing to the defense. The lower court determined that plaintiff beat the 998 offer if preoffer fees and costs were added to the equation. (However, plaintiff did obtain attorney fees of $74,745 for attorney’s fees and $2,425.50 for paralegal fees, a ruling not contested by either side.) The defense appealed, principally arguing that their clients beat plaintiff’s judgment.
The defense was materially vindicated on appeal. The defense did beat plaintiff’s judgment because the offer was structured in a way where the compensatory damages were judged by itself because the defense offered a separate judgment for costs and fees, which could not be “double counted” for purposes of who prevailed on the 998 offer.
Another argument dispatched by the appellate court was that the lienholder pay-off provision was not capable of ascertainment for section 998 valuation purposes. The contention was rejected because plaintiff would get true value because any lienholder payout would effectively wipe out a debt for such the plaintiff offeree had responsibility for.
With all that said, given the dueling costs memoranda by both sides, a remand was ordered so the lower court could determine what preoffer costs were due to plaintiff and what postoffer costs were due to the defense. Acting Presiding Justice Gooding authored the 3-0 opinion on behalf of the 4/3 DCA.
BLOG UNDERVIEW—We saw that Justice Maurice (Mo) Sanchez will be retiring from the 4/3 DCA on October 2, 2026. Although the contributors were at AlvaradoSmith in later years after he was a partner with Alvarado Smith & Sanchez in prior years, we heard positive feedback about him as a lawyer and a judge. We wish him well in his retirement.