Plaintiff Failed To Beat $100,000 CCP § 998 Offer Made By Jointly And Severally Liable Defendants.
In Radich v. Foster, Case No. B288794 (2d Dist., Div. 1 July 25, 2019) (unpublished), two plaintiffs were injured from an automobile collision, suing the 20-year-old driver of one car and his parents (who owned the car). Plaintiffs claimed that defendants were jointly and severally liable for their injuries. The father was dismissed from the case along the way. Before an attorney was associated in by defendant mother, defendants driver and mother made two joint CCP §998 offers to the plaintiffs, one for $100,000 and one for $20,000, both of which were signed by the attorney later co-counseled into the case. Plaintiff Radich did not accept the joint offer of $100,000, while the other plaintiff did accept the $20,000 joint offer. Plaintiffs dismissed defendant mother from the case. Radich then won a jury verdict against defendant driver for $75,000 in noneconomic damages, plus routine, preoffer costs of $9,133.70 awarded by the trial judge. Driver filed to recover $56,879.86 in postoffer costs based on Radich not beating the $100,000 section 998 offer, which the lower court awarded. Radich appealed.
The 2/1 DCA rejected the challenges raised on appeal to the section 998 offer.
Even though the attorney making the offer was not formally in the case, the appellate court found that the client/defendant driver ratified the two joint offers and that this was a situation were Radich would have been wise to seek clarification of the offer if he was confused.
Radich then creatively tried to argue, by analogy to CCP § 664.6 [which requires client written consent to a settlement which can be turned into a settlement through a summary proceeding], that the offering party must sign the offer in order to make it valid. No, said the appellate panel. Section 998 only requires that the acceptance be signed by the party or party’s counsel, not the offer itself. The Court of Appeal was unwilling to engraft a requirement not set forth in section 998.
The joint offer was valid based on the joint and several liability theory being advanced against both remaining defendants, at the time of the offer, raised by Radich himself. (Brown v. Nolan, 98 Cal.App.3d 445, 451 (1979).)
Radich also failed to “beat” the 998 offer; he was not entitled to a credit for the separate $20,000 settlement and, even adding in the total requested preoffer costs (the entire $21,304, which was reduced down by the lower court in its award), Radich only got to $96,304—still short of the $100,000 offer.