Joint Offer by Plaintiffs, Unapportioned as to Three Defendants, Was Valid.
In Montoya v. Mayfield, Case No. B255995 (2d Dist., Div. 4 April 6, 2015) (unpublished), plaintiffs were involved in a serious accident with a truck driven by defendant employee, who was doing so in the course and scope of his employment by defendant employer, who in turn leased the truck from defendant leasing company GSL. Plaintiffs sent a joint, unallocated CCP § 998 offer to all three defendants for $1 million, which was rejected. Eventually, one plaintiff won $1,082,200 and another $294,767.65 from a jury. The trial judge then denied the defense motion to strike plaintiffs’ request for recovery of expert witness fees based on section 998 cost shifting.
Plaintiffs kept their expert witness fee award in the subsequent defense appeal.
The defense first argued that the joint offer by plaintiffs was invalid. However, the section 998 offer fell within an exception where a joint offer can be valid if any one plaintiff—here, the one winning almost $1.1 million—obtained a greater amount than the unallocated $1 million offer.
The defense next contended that the offer was infirm because it was unapportioned with respect to the three defendants (i.e., the employee, the employer, and the truck leasing company GSL)—even though GSL was not an appellant on appeal. Plaintiffs responded that an unapportioned offer is not invalid if defendants are jointly and severally liable. The linchpin of the contrary defense argument was Burch v. Children’s Hosp. of Orange County Thrift Stores, Inc., 109 Cal.App.4th 537 (2003), which parsed through some Vehicle Code provisions and concluded that a truck owner like GSL was statutorily limited on exposure such that it was not jointly and severally liable. However, the 2/4 DCA panel concluded that Burch did not consider the impact of Vehicle Code section 17153 which made GSL only a guarantor such that the liability of the primary defendants was not truly different in nature. Furthermore, plaintiffs alleged only a single act of negligence against all defendants, such that there was not any varying exposure as contrasted to a situation where negligent supervision was alleged.