Trial Court Must Focus on Receipt Issue.
This next case takes us back to evidence class sessions in law school. It involves presumptions, so relax and go back in time to days past in your educational experience.
Plaintiff won a warranty dispute against Ford Motor Company, who said that it sent a valid CCP § 998 offer that beat the jury award to plaintiff. However, plaintiff claimed that it never received the offer. The trial court allocated preoffer and postoffer costs, awarding some to plaintiff and some to defendant. This prompted an appeal by plaintiff.
In Robey v. Ford Motor Co., Case No. A127796 (1st Dist., Div. 3 May 26, 2011) (unpublished), the appellate court remanded on the issue of whether plaintiff received the offer. Although Evidence Code section 641 creates a presumption that a 998 offer properly mailed is presumed to be received, this presumption of receipt disappears when met by contradictory evidence–here, plaintiff’s claim that he did not receive the offer. The record was unclear whether the trial court ruled on this issue, although the determination might be academic given some circumstantial proof that the offer was not received (unless the lower court rejects the credibility of the witnesses on this point).
The appellate court also rejected other creative challenges to the 998 offer by plaintiff. First, it dismissed the notion that the 998 offer has to allocate the offered sum betweeen damages and sought-after attorney’s fees, citing Federal Rule of Civil Procedure rule 68 decisional law to back its conclusion. (See Marek v. Chesny, 473 U.S. 1, 6-7 (1985).) Second, the reviewing court found nothing wrong about a 998 offer to a party and his counsel, dismissing that this was analogous to a lump sum invalid offer to multiple parties.