If You Include Language Like “Or Could Have Been Brought,” This Might Well Be Invalidating For An Offer—Drafting Tip to All!
Consumer Advocacy Group, Inc. v. Enchante Accessories, Inc., Case No. B337902 (2d Dist., Div. 4 July 25, 2025) (unpublished) is an excellent reminder of how to structure CCP § 998 offers with releases of claims, narrowly targeted only to the claims at issue. Go to our category, Section 998, and you will see many cases which adhere to the reasoning of this case. But this one offers a further drafting tip to litigants and their attorneys.
This was a Proposition 65 case, which was ultimately dismissed. However, before that, the defense did provide an unaccepted CCP § 998 offer indicating that the offer would “resolve all claims that have been brought or could have been brought” by plaintiff against the defense. In subsequent proceedings, the lower court awarded the defense $231,458.30 (out of a requested $324,058.30) in fee-shifting costs.
That award went POOF! on appeal as a matter of law. The 998 offer, with the “could have been brought” language, made the offer ambiguous such that the offer was infirm–requiring a reversal on appeal. (Council for Education & Research on Toxics v. Starbucks Corp., 84 Cal.App.5th 879, 905 (2022).)