Cross-Complainants Got Nada, Had to Pay Costs For Turning Down $10,000 998 Offer.
Code of Civil Procedure section 998 can be a potent weapon, especially if a litigant gauges that an action will not garner much but nonetheless makes an offer that should be accepted (or, at least, catch interest). Also, if you are represented by counsel litigants out there, any small clerical errors are not going to invalidate a 998 offer, as Tierstein v. Reiser, Case No. B223570 (2d Dist., Div. 6 Feb. 22, 2012) (unpublished) demonstrates.
In this one, losers–defendants/cross-complainants–were not pleased at all when the trial court determined that their opponents had obtained an irrevocable license of limited duration to preserve views over losers’ property. (After all, winners thought they had cut an oral deal on plant trimming and actually made some improvements and other expenditures, only to be told by losers–and we quote–”we’re not trimming bushes anymore,” “you’re a fucking asshole,” “we’re done,” and “it’s tough shit for you.” [As co-contributor Mike has been known to say during some years of civil practice, “You can’t make this s _ _ _ up”–but only to those who work closely with him, usually not opponents!.]) For our fee blogging purposes, after cross-complainants recovered nothing, cross-defendants sought costs of $30,934.19 from the other side based on the rejected 998 offer (with most of the costs being expert witness fees, which we have found to be the case in many, many cases).
What happened on appeal? Well, I think many of our readers probably have guessed it–costs award affirmed.
Why? Well, the 998 offer was narrowly targeted to the cross-claims and the loser did miscalculate and eventually lose. That is, in a way the appellate court said, a by-product of modern litigation–you fail to meaningfully evaluate a 998 offer, you lose. Losers argued that there were clerical errors in the offer, but the appellate court said, “No way.” Losers were represented by counsel, such that counsel could simply explore any deficiencies and then advise the clients after talking to offerors‘ (opposing) counsel. (Berg v. Darden, 120 Cal.App.4th 721, 730-731 (2004); Westamerica Bank v. MBG Industries, 158 Cal.App.4th 109, 128-129 (2007).)
BLOG UNDERVIEW–We noticed that Justice Coffee was the author of this decision on behalf of a 3-0 panel. Looks like he has retired. Co-contributor Mike did appear before him a couple of years ago on an argument in a panel in which he was a participant. He was a gentleman, and we wish him well in his retirement.