Are you an attorney, claims professional or party with litigation pending in California? Are you keeping up with the latest in California Section 998 offers? Watch your 998’s and how you word them!
In this quick “Thursday Tip of the Day”, Host, Jean Lawler–commercial + insurance mediator and arbitrator–provides a case law update on two California appellate court cases that were decided on October 28, 2022, examples of 998 offers that were either not properly extended or accepted by one party or the other - and the consequences of such.
- Trujillo v. City of Los Angeles
- Council for Education and Research on Toxics v. Starbucks Corp. et al
To read the full episode transcript please see the Podcast Website.
Since this recording, an appellate decision in the case of Chen v. BMW of North America was published, providing an excellent discussion and roadmap of a 998 offer that was correctly extended, in accord with statutory requirements, and how the 998 offer should be applied. There, a settlement on the courthouse steps was for the same amount as a 998 offer that had been issued by the defense approximately 2 years prior. This opinion can be found at: www.courts.ca.gov/opinions/documents/H048257.PDF.
About the Host:
Based in Los Angeles, CA, Jean Lawler is an attorney and mediator, focusing on commercial, insurance and civil litigation matters pending at the trial and appellate levels - wherever filed. She regularly mediates a wide variety of insurance, business, and tort matters, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US (Certified Information Privacy Professional) certified, Jean also mediates matters involving data breaches, ransomware, and cyber losses. She has mediated hundreds upon hundreds - thousands - of cases over the years with a myriad of issues. For a more detailed sampling of the types of mediations that she has conducted and participated in, both when in practice and as a full-time mediator, please refer to her web page detailing Representative Matters.
Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international, and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). She also served as a Managing Partner of her former law firm, at times chairing the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, served her many clients as counselor and trusted advisor.
As she would tell you if asked: “I absolutely love what I do! I would be honored to serve as your Mediator or Arbitrator.”
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Thank you for reading this transcript of the ROADS TO Resolution ~Closure ~Certainty Podcast. In this episode entitled "Two Case Law Updates Attorneys Should Know About California Section 998 Offers," Host, Jean Lawler, shares a tip for the day from her weekly YouTube video series entitled “Thursday Tip of the Day”, which can also be viewed on her YouTube Channel. To improve readability, this clean verbatim transcript also includes additional headings (not part of the audio) and bolded terms. The transcript is human generated, so there may be minor errors. Thanks for your time!
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JEAN LAWLER:
Hi, I’m Jean Lawler, I’m your host of the ROADS TO Resolution ~Closure ~Certainty Podcast. And today I have my “Thursday Tip of the Day” for you. And it has to do with the latest in California Section 998 offers. And those are offers to settle the case–basically to take judgment and settle the case. If you do have litigation in California, you certainly know what they are. They’re a fantastic tool for helping to get cases settled. If you’re not in California but you do have a California case, you’ll need to figure it out because it's something you’ll need to be aware of.
So what's new, what’s the latest? We have two cases that were decided on Friday, October 28th, and I wanted to call your attention to them.
Case #1: Trujillo vs. The City of Los Angeles
This one here, the Trujillo vs. the City of Los Angeles case is interesting because summary judgment had been granted from the bench. There was an outstanding 998 offer that the City had made to the Plaintiff. The Plaintiff had not accepted it prior to the MSJ hearing. The Judge rules from the bench orally granting the MSJ and then–I think it was four minutes later after the hearing ended–the Plaintiff attorney sent an email or a note accepting the 998. And then just minutes later–less than ten minutes later–filed a notice of acceptance with the Court.
And you can imagine the squabble that followed and the Court ruled…And now the Appellate Court has ruled that an oral ruling of summary judgment from the bench is a final, you know has finality to it, and that you can not accept a 998 offer after that–that it then becomes, void if you will, or it’s without effect.
So if you have a summary judgment pending and you want to consider what to do on the 998, it needs to be accepted before there’s any ruling on the summary judgment from the bench, in particular, or certainly in writing–if the Court takes it under submission.
And by the same token, if you’re a defendant, or whoever, actually, if you’re the one who brought the summary judgment motion, you might want to ask the judge for a ruling from the bench so that you can stop the time running on an open 998 offer and not have it accepted unintentionally after you’ve won your summary judgment motion.
Case #2: Council for Education and Research vs. Starbucks
The next one, also decided the same day, is the Council for Education and Research vs. Starbucks and then a whole long line of grocery stores and restaurants and the like. These were the “coffee cases” under California’s Prop 65. Did they need warnings? Did they have the proper warnings? And the Court…eventually it was ruled that they did not need the Prop 65 warnings, but we digress.
On the 998 offer, there had been one made but the Court ended up saying that the offer was invalid because the release was overbroad. It was a general release and it related to more than just this lawsuit, so the Court said in this case, it couldn’t properly value the other claims that weren’t part of the lawsuit, so they could not find that the 998 offer, and then the ultimate awarding of costs and the like, that they couldn’t go with it, that it wasn’t valid.
So that’s my tip of the day on that one. Watch your 998’s and how you word them. Any practitioner knows that, but it's easy to get tripped up. Okay? So those are my tips for the day for today, this Thursday, and I look forward to being with you next week with some more tips. In the meantime, please feel free to watch my videos, listen to my podcast, follow me on LinkedIn, whatever it is, reach out. Thanks so much. Goodbye.
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