998 Offer Would Have Been Fine In Wrongful Death Action Alone, But Separate Offers Had To Be Served In This Particular Survival Claim Action.
Although the CCP § 998 discussion is unpublished, Williams v. The Pep Boys Manny Moe & Jack of California, Case No. A146060 (1st Dist., Div. 4 Aug. 23, 2018) (partially published; 998 discussion unpublished) does show that an unallocated 998 offer to multiple plaintiffs can be invalid such that validity has to be gauged on the claims at issue to see if a true unity of interest is involved so as to make an enforceable 998 offer.
This case involved seven adult children of a decedent bringing claims for wrongful death, strict liability, and negligence against several defendants, including The Pep Boys. The wrongful death claims were found to be barred by the statute of limitations, but the trial court after a bench trial awarded the children $213,052 as economic damages on the remaining claims, but found them to be offset by the settlements that the children had entered into before trial with other parties (determinations all affirmed, except for a published discussion of a damages component which should have been awarded so as to require a limited remand).
Later, the trial court awarded The Pep Boys with $32,542.51 in costs, with $16,724.10 of that consisting in expert witness fees based on the children rejecting a $60,000 998 offer (which was beaten by the zero award after settlement offset credits). The glitch here was that the 998 offer was made to all the children, without allocations, and called for acceptance by decedent’s estate and decedent’s estate’s counsel. The appellate court reversed the shifting of expert witness fees adversely against children under the 998 offer. It found that the unallocated offer to multiple parties was invalid. Although acknowledging that the offer would have been valid in a true wrongful death action, the claims here were different, with the children distinct from decedent’s estate where a joint offer might have been valid under different circumstances.
BLOG OBSERVATION—This case counsels that 998 offers need to be carefully structured (actually, in every case), but especially in cases where “unity of interest” between parties does not exist or might be questionable in nature.