This Likely Is A Split In Intermediate Appellate Reasoning, Especially From Reasoning in the Second District’s Gorobets Recent Opinion—But Maybe Not On The End Result When Evaluating Alternative Offer Scenarios.
Well, we have a split in intermediate appellate thinking on how simultaneous, alternative CCP § 998 offers should be treated under California law. On October 18, 2024 we posted on Gorobets v. Jaguar Land Rover North America, LLC, 105 Cal.App.5th 913 (2d Dist., 2024), a splintered opinion on simultaneous offers but not askew with respect to the Second District’s conclusion that simultaneous offers were invalid. However, a closer look shows that the ultimate results in Gorobets and the 4/1 DCA’s decision in Zavala v. Hyundai Motor America, Case Nos. D082747/D082940 (4th Dist., Div. 1 Dec. 17, 2024) (published) may not be at odds, except for the disagreement on the “simultaneous offers” principle.
In Zavala, plaintiff won a Song-Beverly Act case, but the real controversy focused on whether the defense “alternative” 998 scenarios, made in one offer, was effective to shift fees and costs. One was a straightforward money offer, and the other was an offer dependent on future valuation of even core damages concerns. The lower court concluded the defense offer was not valid, but the appellate court disagreed and remanded for a reconsideration on shifting based on the valid defense offer.
The 4/1 DCA did provide a “bright-line” rule: when faced with two simultaneous offers, the trial court can look at each offer separately to determine whether either of them exceeded the amount of the verdict for costs/fee shifting purposes under section 998. The San Diego appellate court simply disagreed with the Gorobets’ broader conclusion that two simultaneous 998 offers are invalid, although a close examination of Gorobets shows the majority did allow shifting based on one of the valid offers. So, there is a split of opinion on a broader conclusion, but maybe not so much on the ultimate result. Interesting to see how this pans out for state supreme court review purposes.