Thursday, October 4, 2018
C.A. Rejects Contention That $11,490 Jury Award Is More Than $12,001 CCP §998 Offer
If Pre-Trial Costs Are Added to Award in Making Comparison, They Must Be Added to Offer—Ikola
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday rejected the contention of a plaintiff that the $12,001 statutory offer of compromise she received, and snubbed, was actually less than the $11,490 jury award because her pre-offer costs must be added to that award.
While retired Orange Superior Court Judge David T. McEachen, sitting on assignment, accepted the theory put forth by plaintiff Samantha Martinez, and awarded her costs, Justice Raymond J. Ikola of Div. Three found no merit in it. If pre-offer costs are added to the award in comparing what was offered and what was garnered through a verdict, they also have to be added top the award—or simply ignored, he said.
Under Code of Civil Procedure §998, a plaintiff who is awarded less than he or she would have received under an offer of compromise, “shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” The section adds:
“In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.”
“By specifying post-offer costs are excluded for purposes of determining whether plaintiff obtained a more favorable judgment, the statute necessarily implies pre-offer costs are included.”
“Ikola went on:
“While plaintiff contends her pre-offer costs and attorney fees ‘must be added to the $11,490 damage award,’ she does not cite any authority, and we are aware of none, suggesting the same costs and fees should be excluded from the 998 offer, which was silent on costs. Thus, we conclude the court should have compared the jury’s award plus plaintiff’s pre-offer costs and fees with the amount of the 998 offer plus plaintiff’s pre-offer costs and fees. Because, for comparison purposes, the pre-offer costs and fees are added to both the jury award and the (silent on costs) 998 offer, we may simply compare the jury award with the 998 offer. Thus, the $11,490 jury award is less than the 998 offer. Plaintiff did not obtain a ‘more favorable judgment.’ ”
“Having reached this disposition, we nonetheless believe the bench and bar would be well served if the Legislature amended section 998 to clarify how costs and fees should be addressed in a 998 offer.”
The case is Martinez v. Eatlite One, Inc., G055096.
Martinez was represented on appeal by Paul M. Hittelman of Santa Monica. Mark B. Plummer of Yorba Linda argued for the defendant.
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