Fact That Two Defendants Were Dismissed And Offer Encompassed Any Existent Plaintiff Liens Did Not Impact Its Validity.
In Ziert v. Young’s Lockeford Payless Market, Inc., Case No. C079669 (3d Dist. Jan. 30, 2019) (unpublished), several defendants made a joint CCP § 998 offer to plaintiff for $50,000, with no extra costs/fees and inclusive of satisfying all existing liens assessable against any recovery by plaintiff. Two defendants were dismissed without prejudice before trial. Plaintiff did not even come close to beating the 998 offer after a jury verdict, which resulted in a costs award against plaintiff and in favor of the offering defendants.
On appeal, plaintiff argued that the 998 offer was invalid, but the Third District rejected the arguments advanced as to why. Plaintiff initially argued, based on Kahn v. The Dewey Group, 240 Cal.App.4th 227 (2015) (where a 998 offer by 20 defendants was not enforced where 6 defendants had no court adjudication and were in limbo based on a deadlocked jury such that it was not possible to say if the defendant group prevailed), that the dismissal of the two defendants rendered the offer invalid. The appellate court found Kahn distinguishable because there was no indication that the two defendants would ever go to trial, such that all defendants indeed prevailed. Plaintiff then argued that the “existing lien” satisfaction language voided the offer, but the Court of Appeal concluded no support was provided for this argument and that this type of lien language is routine in many 998 offers.