Made No Difference That Defense Affirmatively Rejected Rather Than Ignored The Offer.
In a very complicated case involving the Polar Care 500 cold therapy device, the 4/1 DCA in Bigler-Engle v. Breg, Inc., Case No. D063556 (4th Dist., Div. 1 Oct. 28, 2016) (partially published; 998 discussion not published) did have occasion to pass on a CCP § 998 issue. Specifically, the lower court granted a defense motion to tax costs when plaintiff moved to recover certain costs based on a successful CCP § 998 offer, albeit one that was determined to be void based on the failure to plaintiff to provide an acceptance line in the offer. That determination held up on appeal, because plaintiff fatally failed to provide an acceptance line. Plaintiff tried to argue that the defense expressly rejected the offer rather than simply ignoring it such that the result should be different. The reviewing court did not buy this distinction, sustaining the lower court’s ruling on the 998 issue.