Case Teaches That 998 Offers Must Be Taken Seriously, With Appellate Court Rebuffing Multiple Technical Challenges To The Underlying Offers.
Rempell v. Hofmann, Case No. A146257 (1st Dist., Div. 4 June 14, 2017) (unpublished) involved a husband and wife suing for personal injuries/loss of consortium against a defendant making two pre-trial Code of Civil Procedure 998 offers which were rejected. The first offer was for $175,000 and the second for $250,001. Unfortunately, a jury awarded husband only $26,775 in damages and wife nothing. The trial judge later awarded the defense $514,005.66 in 998 fee-shifting costs, a majority being expert witness expenses. Plaintiffs’ multiple challenges to the two offers failed on appeal. Specifically, this is what the appellate court ruled: (1) a minor misspelling of a party name did not invalidate an offer; (2) the defense timely serving an offer on the plaintiffs, albeit not timely serving plaintiffs’ counsel, did not void the offer; (3) the second offer did not extinguish the calculation of shifted costs running from the date of the first offer based on the challenge that the first offer was void, because such a proposition was rejected in Martinez v. Brownco Constr. Co., 56 Cal.4th 1014, 1017, 1025 (2013) with respect to multiple 998 offers; (4) the 998 offers did not have to consider the impact of any outstanding liens on an ultimate recovery (Culbertson v. R.D. Werner Co., Inc., 190 Cal.App.3d 704, 708 (1987)); and (5) the defense did not have to separate out offers to husband and wife given that the personal injury recovery was community property, reaching this result based upon reasoning in Farag v. ArvinMeritor, Inc., 205 Cal.App.4th 372, 382 (2012).