Former Employer Had The Burden Of Proving A Valid § 998 Offer Had Been Made, But Belatedly Attached The § 998 Offer To Its Reply Papers Instead Of Its Moving Papers
In Snoeck v. Exaktime Innovations, Case Nos. B302178/B304054 (2d Dist., Div. 3 October 29, 2021) (unpublished), plaintiff sued former employer for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). After a five-day trial, the jury returned a verdict in former employer’s favor – with exception to one cause of action for which plaintiff was awarded $130,088 in damages. Afterward, plaintiff moved to recover costs, but the trial court granted former employer’s motion to tax from the date plaintiff rejected former employer’s $500,000 Code Civ. Proc., § 998 offer to compromise, and awarded plaintiff $49,353.46 after taxing $30,056.44.
Plaintiff appealed and the 2/3 DCA reversed with direction that the trial court enter a new order awarding plaintiff $79,409.90 in costs. The problem was that former employer – with the burden of proving a valid § 998 offer had been made – failed to include a copy of its § 998 offer in its moving papers. Instead, former employer attached a copy to its counsel’s reply declaration after plaintiff opposed the motion to tax based on former employer’s failure to meet its burden to demonstrate it made a valid § 998 offer, and objected on hearsay and secondary evidence grounds to defense counsel’s description of the § 998 offer. Citing Carbajal v. CWPSC, Inc., 245 Cal.App.4th 227, 241(2016) for the general rule that new evidence is not permitted with reply papers, the panel found the trial court abused its discretion by permitting former employer to submit the § 998 offer with its reply papers. Submitting new evidence with reply papers should be permitted only in the exceptional case and, in such an event, the other party should be allowed to respond to the new evidence – which was not the case and did not happen here.