$16,153 in Expert Witness Fees Sustained, Where Losing Party Failed to Beat $50,001 998 Offer.
In Albert v. Satellite Management Co., Case No. E054601 (4th Dist., Div. 2 Sept. 30, 2013) (unpublished), plaintiff finally lost a bench trial in a personal injury case. Defendant had made a prior CCP § 998 offer for $50,001 conditioned upon (1) paying off all outside lien claims (such as medical liens); (2) entry of a request for dismissal with prejudice; and (3) execution of a general release by plaintiff in defendant’s favor. Plaintiff did not accept the offer and was defensed at trial. The lower court later awarded $16,153 in expert witness fees against plaintiff based on the 998 offer rejection.
Plaintiff’s multiple challenges to the 998 offer were not persuasive on appeal.
First, there was a valid acceptance line in the offer. Although it could have been a little more clear, language that said “Acceptance of this offer by plaintiff will result in a final disposition of the case via Request for Dismissal and General Release of all Claims, to be signed by the plaintiff” came close enough.
Second, contrary to plaintiff’s argument otherwise, a 998 offer may provide for a release and dismissal. (Linthicum v. Butterfield, 175 Cal.App.4th 259, 271-272 (2009).)
Third, there was no violation of the prohibition against releasing fraud claims where the offer was only an attempt to obtain a settlement release in exchange for a $50,001 payment.
Fourth, the condition of the offer about including lien claims was justified. “It would be absurd to suppose that [defendant] was offering to settle with [plaintiff], yet remain liable to lienholders.” (Slip Opn., p. 24.)
Fifth, the offer was made in good faith because the ultimate verdict showed a presumption of reasonableness not rebutted by plaintiff.