Dismissal With Waiver Of Costs Was A Valid And Reasonable Good Faith Offer Under The Circumstances.
In Collantes v. Union Carbide Corporation, Case Nos. B335555/B338371 (2d Dist., Div. 7 Sept. 16, 2026) (unpublished), a defendant suffering an adverse jury verdict in an asbestos case obtained a judgment notwithstanding the verdict based on a post-trial motion for JNOV. Earlier, that same defendant had sent a CCP section 998 offer to plaintiffs, offering to waive costs if they dismissed the case (no liability offer). Plaintiffs did not accept the pretrial offer, with the lower court finding the offer was enforceable and awarding defendant $21,895.88 in costs.
The 2/7 DCA affirmed the costs award, finding the offer was reasonable and made in good faith. Key to the affirmance was the proper burden of proof: once a technically valid 998 offer is made, the offeree bears the burden of showing that the offer was not made in good faith. A judgment more favorable than the offer is prima facie evidence that the offer was made in good faith and the offeror is eligible for the costs allowed under section 998. (Covert v. FCA USA, LLC, 73 Cal.App.5th 821, 833-834 (2022).) Plaintiff’s failure to rebut the ultimate no liability conclusion cemented the reasonableness of the offer. Further, the offer was made deep into the litigation, with plaintiff charged with knowing that there was an evidentiary gap about defendant not having manufactured or sold any product to which plaintiff was exposed. The offer was not just a “token” one, because a waiver of costs did have monetary value to plaintiff offeree. Finally, an offeree’s jaded valuation of the case and subjective damages assessment do not dilute the potency of a well-crafted 998 offer.