Policy of Encouraging Settlements Cemented This Conclusion.
In an interesting unpublished opinion, Calleja v. Udewitz, Case No. B319906 (2d Dist., Div. 1 Dec. 30, 2024) (unpublished), the 2/1 DCA decided that CCP § 998’s cost-shifting penalties applied to a subsequent personal representative of a deceased defendant not accepting a 998 offer before his death in a personal injury case where plaintiff eventually obtained a more favorable result. Although “the defendant” language of section 998 was ambiguous and no relevant legislative history could be found on the issue, the panel determined that the encouragement of early settlement in a personal injury case led to its conclusion that the personal representative, in a personal representative capacity on behalf of the estate, should be bound by the consequences of deceased’s prior decision, bolstered by the fact that this would incentivize the personal representative to carry on settlement discussions with plaintiff. Otherwise, in a different situation where there was still time to negotiate an informal resolution, personal representative could make his/her own section 998 offer without any repercussions from the earlier nonacceptance.
In a footnote, the DCA did observe that no one argued the applicability of Probate Code section 1002, which provides: “Unless it is otherwise provided by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require.”