Precise Language In 998 Offer Is Needed To Limit Its Scope—Otherwise, Beware Because You Will Not Get Fee Shifting.
Appellate courts do not like broad, uncalibrated 998 offers. Kennedy v. City of Fresno, Case Nos. F077029/F077585 (5th Dist. Sept. 10, 2020) (unpublished) illustrates this principle well, as we discuss below.
There, City of Fresno did prevail on a dangerous condition case after a jury trial, seeking to recover over $266,000 in expert witness costs based on a CCP §998 offer to settle the matter for $50,001.00. The trial judge denied Fresno’s 998 fee-shifting motion, a determination affirmed on appeal by the Fifth District.
The problem was that Fresno’s 998 offer was overbroad, asking for a full release of “all claims against defendant Fresno.” Unlike cases cited by Fresno, there was no attempt to reign in the broad language, including potential claims, so that the trial and appellate defaults were easy to enlist: the general language “strayed” from what was permissible. No fee shifting here.