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Date: 02-03-2018

Case Style: Juan Gonzales v. Wayne Bill Lew

Case Number: B271312

Judge: Lavin

Court: California Court of Appeals Second Appellate District Division Three on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Lance D. Orloff and Jeffrey P. Magwood

Defendant's Attorney: Calvin C. Schneider

Description: Code of Civil Procedure section 9981 is a cost-shifting
statute designed to encourage parties to settle their lawsuits
prior to trial by punishing a party that refuses a reasonable
settlement offer. In order to trigger section 998, a settlement offer
must be clear, in that it must allow the party receiving the offer
to evaluate whether the party making the offer is likely to obtain
a more favorable verdict at trial.
In this wrongful death case, two people (Virginia Gonzalez
and Maverick Crowder) died after a fire engulfed the rented
home in which they were living. Both sets of the decedents’ heirs
(plaintiffs) sued the owners of the rented home, Wayne and
Maria Lew, and plaintiffs subsequently made a joint offer to
settle both claims for $1.5 million. The Lews rejected the offer
and plaintiffs prevailed at trial; the jury awarded Virginia’s heirs
more than $2.2 million and Maverick’s heirs just over $357,000.
The Lews appeal the court’s order awarding costs to plaintiffs
under section 998, arguing the joint offer to settle both wrongful
death claims was invalid because it did not allow them to
evaluate each claim independently. Under the unique
circumstances of this case, we conclude the joint offer was valid
and affirm the court’s order.
Two people died in a residential home fire: Virginia
Gonzalez (age 49) and Maverick Crowder (age 3). Virgina and her

1 All undesignated statutory references are to the Code of Civil
husband, Juan,2 rented the home from the Lews. The precise
cause of the fire was never determined.
At the time of the fire, Virginia lived in the home with Juan
and the couple’s minor daughter Jasmine. Virginia and Juan had
three other children: Yvette, Richard, and Priscilla. Maverick
(Juan’s son, born to Kathleen Crowder) also lived in the home
with the Gonzalez family. Apparently, “[a]lthough Maverick …
was treated as a member of [the] Gonzalez family by Juan and
Virginia and their children, the children learned after the fire
what Virginia and Juan had decided (in the best interest of the
family) not to tell them previously: that Maverick … was in fact
the child of Juan Gonzalez and Kathleen Crowder.”
Virginia’s heirs (Juan and the four children) and
Maverick’s heirs (Juan and Kathleen Crowder) sued the Lews3
alleging the wrongful death of their respective decedents. The
plaintiffs later served the Lews with a written offer to settle both
wrongful death claims in the amount of $1.5 million. The Lews
did not accept the offer but later made their own offer, addressed
to all plaintiffs jointly, to settle both wrongful death claims in the
amount of $1 million. Plaintiffs did not accept the offer.
The matter proceeded to trial before a jury. With respect to
Virgina, the jury’s verdict awarded $2,254,300 to Juan, Priscilla,
Richard, Yvette, and Jasmine. The jury also awarded Juan and
Kathleen Crowder $357,100 for the death of Maverick. The jury

2 Because all the members of the Gonzalez family have the same
last name, we use their first names when we refer to them
3 Plaintiffs also sued the Lews in their capacity as trustees of the
Lew Family Trust. For convenience, we refer to all of the defendants
collectively as the Lews.
attributed 15 percent of the fault to Juan, leaving the Lews
responsible for the remaining 85 percent. In subsequent
proceedings, the court allocated the damages among the
decedents’ heirs. The court also reduced Juan’s economic
damages by 15 percent under Proposition 51.
Following trial, plaintiffs jointly submitted a memorandum
of costs seeking, among other things, expert witness fees
($76,931.50) and interest on the judgment beginning the date the
settlement offer expired ($347,595.14), both as a consequence of
the Lews’ failure to accept their section 998 settlement offer. The
Lews filed a motion to tax plaintiffs’ costs, arguing the settlement
offer was not a valid offer under section 998 because the offer
concerned two independent wrongful death claims.
As to that issue, the court denied the Lews’ motion.4 After
examining the text of section 998, the court concluded the statute
“does not require the separation of claims or plaintiffs. Neither
does it invalidate joint offers.” Citing the overall goal of section
998—encouraging settlement—the court further stated that
“joint offers should be encouraged rather than discouraged. …
Where the parties are in fact attempting to settle on a joint basis,
their efforts should not be impeded by judge made rules requiring
the separation of parties or claims.” The court then found
plaintiffs’ settlement offer was valid under section 998. The Lews
timely appeal.

4 The motion to tax plaintiffs’ costs contained several independent
arguments. The court granted the motion in part and denied the
motion in part.
The Lews assert the court erred in awarding plaintiffs
expert witness fees and post-settlement-offer interest on the
judgment. According to the Lews, plaintiffs’ global settlement
offer was invalid under section 998 because it offered to settle
both wrongful death actions and did not allocate the settlement
between the two sets of decedents’ heirs. On the facts of this case,
we conclude the court did not err.
1. Standard of Review
The application of section 998 to undisputed facts is a legal
issue we review de novo. (See Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018 (Martinez).)
2. The overriding purpose of section 998 is to encourage
pretrial settlement of litigation.
Generally, a prevailing party in a civil case “is entitled as a
matter of right to recover costs.” (§ 1032, subd. (b).) Recoverable
costs do not typically include the fees of expert witnesses not
ordered by the court. (§§ 1032, 1033.5, subd. (b)(1).) But expert
witness fees are recoverable in some circumstances, as when a
more favorable judgment for the plaintiff follows a defendant’s
rejection of a valid pretrial section 998 settlement offer. (See
Martinez, supra, 56 Cal.4th at pp. 1019 & 1022, fn. 4; Kahn v.
The Dewey Group (2015) 240 Cal.App.4th 227, 237 (Kahn).)
Section 998 establishes a procedure for shifting costs upon a
party’s refusal to settle by “expand[ing] the number and type of
recoverable costs and fees over and above those permitted by
section 1032(b).” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17
Cal.4th 985, 1000.) In addition to expert witness fees, a
prevailing plaintiff in a personal injury case may obtain post-offer
interest on the judgment. (Civ. Code, § 3291.)
As relevant here, section 998 provides: “(a) The costs
allowed under Sections 1031 and 1032 shall be withheld or
augmented as provided in this section. [¶] .... [¶] (d) If an offer
made by a plaintiff is not accepted and the defendant fails to
obtain a more favorable judgment or award in any action or
proceeding ..., the court or arbitrator, in its discretion, may
require the defendant to pay a reasonable sum to cover postoffer
costs of the services of expert witnesses, who are not regular
employees of any party, actually incurred and reasonably
necessary in either, or both, preparation for trial or arbitration,
or during trial or arbitration, of the case by the plaintiff, in
addition to plaintiff’s costs.” “To qualify for these augmented
costs, the plaintiff’s offer must be in writing and conform to
statutory content requirements. (§ 998, subd. (b).)” (Martinez,
supra, 56 Cal.4th at p. 1019.)
Section 998 is intended to encourage the settlement of
lawsuits prior to trial by penalizing a party who fails to accept a
reasonable settlement offer. (T.M. Cobb Co. v. Superior Court
(1984) 36 Cal.3d 273, 280.) “To effectuate this policy, section 998
provides ‘a strong financial disincentive to a party—whether it be
a plaintiff or a defendant—who fails to achieve a better result
than that party could have achieved by accepting his or her
opponent’s settlement offer.’ [Citation.] At the same time, the
potential for statutory recovery of expert witness fees and other
costs provides parties ‘a financial incentive to make reasonable
settlement offers.’ [Citation.] Section 998 aims to avoid the time
delays and economic waste associated with trials and to reduce
the number of meritless lawsuits. [Citations.]” (Martinez, supra,
56 Cal.4th at p. 1019.)
3. Joint settlement offers are not always valid under
section 998.
On its face, section 998 applies to offers made by “a
plaintiff” or “a defendant.” Nonetheless, our courts have applied
section 998 where an offer is jointly made by or offered to more
than one party. But where a settlement offer involves multiple
parties on one side, it will not always trigger section 998.
3.1. Unallocated joint settlement offers made to
multiple parties.
California courts uniformly recognize as invalid an
unallocated offer from a defendant to multiple plaintiffs with
separate claims where the offer is conditioned on acceptance by
In Meissner v. Paulson (1989) 212 Cal.App.3d 785
(Meissner), for example, the plaintiffs (a landlord and his insurer)
sued the defendant5 (a tenant) after a fire occurred on the leased
premises. The landlord sought to recover unpaid rent, attorney’s
fees, and the cost of repairing the premises under both a breach
of contract and a tort theory. (Id. at p. 791.) The insurer asserted
a subrogation claim for the cost to repair the leased premises.
(Ibid.) The defendant offered to settle the entire case in the
amount of $25,001 but plaintiffs rejected the offer. Before trial,
the parties stipulated the defendant owed the landlord $5,855.87
in unpaid rent; a jury later found the defendant was not

5 The tenant’s insurer joined the action during the litigation, after
the tenant died.
negligent and the insurer recovered nothing. (Id. at p. 789.) In
light of the defendant’s settlement offer, the trial court awarded
the defendant additional costs under section 998. (Id. at p. 790.)
The Court of Appeal reversed the cost award. The court
briefly discussed two prior cases which held an unallocated offer
to multiple plaintiffs invalid under section 998 because it was
impossible to tell, after trial, whether any of the plaintiffs
received a better result after the trial. (Meissner, supra, 212
Cal.App.3d at p. 790.) In one case, Randles v. Lowry (1970) 4
Cal.App.3d 68 (Randles), a defendant made a joint offer to settle
a tort action with three plaintiffs, two of whom eventually
recovered at trial and sought to recover costs under section 998.
(Meissner, at p. 790.) But because the settlement offer was not
allocated among the three plaintiffs, it was impossible to tell
whether the two prevailing plaintiffs obtained more favorable
results at trial. (Ibid.) That court held the settlement offer invalid
under section 998 because it recognized that, as a practical
matter, a party receiving a joint unallocated offer may not be able
to prove, as section 998 requires, that he or she obtained a more
favorable result at trial—and therefore should not be subject to
its cost-shifting provision.
But in Meissner, the court did not rest its decision on that
point. There, the defendant had no difficulty establishing that
the landlord’s insurer, having received nothing at trial, plainly
would have fared better under the settlement offer, even after
subtracting the landlord’s recovery of unpaid rent. Instead, the
court focused on the fact that the defendant’s offer, to be
accepted, required both plaintiffs to consent to settlement and
determine between themselves the apportionment of the
settlement. (Meissner, supra, 212 Cal.App.3d at pp. 790–791.)
The court noted, as a matter of policy, that applying section 998
to the unallocated joint offer in the case before it “would
introduce great uncertainty into this area of the law. Plaintiffs
would be required to second-guess all joint offers to determine
whether a failure to reach agreement with coplaintiffs would
cause a risk of section 998 costs against them. We believe the
Legislature did not intend to place this burden on offerees. To
enforce the purpose of section 998, we find as a matter of law only
an offer made to a single plaintiff, without need for allocation or
acceptance by other plaintiffs, qualifies as a valid offer under
section 998.” (Ibid.)
Courts have applied the same reasoning where a plaintiff
makes an unallocated settlement offer to multiple defendants
with potentially varying liability. In Taing v. Johnson
Scaffolding Co. (1992) 9 Cal.App.4th 579 (Taing), for instance,
the plaintiff was injured when he fell from a scaffold while
working for a subcontractor at a construction site. (Id. at p. 582.)
The plaintiff later sued the general contractor, the scaffolding
company, and the owner of the site (collectively, the defendants)
and then offered to settle the case against all three defendants for
$249,999. The defendants did not accept the offer. A jury later
found the scaffolding contractor negligent and 100 percent
responsible for the plaintiff’s injuries and awarded the plaintiff
$492,626. The court awarded the plaintiff his expert witness fees
under section 998 and prejudgment interest under Civil Code
section 3291.
The Court of Appeal reversed the cost and interest award.
On appeal, the scaffolding contractor argued “the joint offer
unfairly burdened [the] defendants by requiring them each to
second-guess whether failure to reach an agreement to settle
with the other defendants would risk imposition of section 998
penalties.” (Taing, supra, 9 Cal.App.4th at p. 583.) The court
agreed, noting with reference to Meissner that “an unapportioned
offer by a single plaintiff to multiple defendants … requires any
defendant who wants to accept to obtain the concurrence of his or
her codefendants. This places a reasonable defendant at the
mercy of codefendants whose refusal to settle may be
unreasonable.” (Ibid.) The court therefore held the plaintiff’s offer
invalid under section 998 because it was not “sufficiently specific
to permit the individual defendant to evaluate it and make a
reasoned decision whether to accept without the additional
burden of obtaining the acceptance of codefendants … .” (Id. at p.
As the cases just discussed illustrate, settlement offers
made to multiple parties present special challenges where section
998 is concerned. Nevertheless, our courts have noted some
situations in which an unallocated offer made to multiple parties
is valid under section 998.
For example, where several plaintiffs receiving a
settlement offer have a unity of interest in the subject of the
litigation, an unallocated joint settlement offer to them may be
valid under section 998. At least one court has held that spouses
who suffer an injury to community property have a unity of
interest, i.e., a single, indivisible injury. (See, e.g., Vick v.
DaCorsi (2003) 110 Cal.App.4th 206, 210–211.) Thus, where a
husband and wife brought an action for fraud and breach of
contract in connection with the purchase of a family home, an
unallocated settlement offer to them was held to be valid. (Ibid.)
In that instance, the rationales for not applying section 998—the
inability of one party to settle without the consent of the other
parties, and the potential difficulty of ascertaining whether the
party seeking costs obtains a more favorable verdict—are not
present. Where community property interests are concerned, for
example, either spouse may act unilaterally on behalf of the
community to accept or reject a settlement offer and whatever
cost-shifting effect section 998 might have, it will affect the
community as a whole. The community also suffers a single
injury and obtains a single damages award, making it possible to
determine with certainty whether a more favorable verdict
Additionally, several courts have held that in a wrongful
death case, a decedent’s heirs have a unity of interest such that a
settlement offer made jointly to all the heirs is valid under
section 998.6 In McDaniel v. Asuncion (2013) 214 Cal.App.4th
1201 (McDaniel), the court observed that a wrongful death cause
of action is atypical, in that a decedent’s heirs may only bring a
single, indivisible action for wrongful death. All heirs must join
together in a single action and the jury will award a single lump
sum for all recoverable damages. (Id. at p. 1206.) The recovery of
the individual heirs is determined later by the court based upon
the proportion each heir’s personal damage bears to the damage
suffered by the others. (Ibid.) In light of these facts, the Court of

6 The courts of appeal are currently divided on this question. (See,
e.g., Gilman v.Beverly California Corp. (1991) 231 Cal.App.3d 121,
124–126 (Gilman) [rejecting joint offer theory because “each heir
should be regarded as having a personal and separate cause of action;”
lump sum award is merely a procedural element in wrongful death
cases].) But the issue in this case is not whether an unallocated offer to
a decedent’s heirs is valid. Rather, we consider whether an unallocated
global settlement offer from multiple plaintiffs (who, in this case, are
heirs of two decedents) is valid under section 998.
Appeal determined that an unallocated joint settlement offer to a
decedent’s heirs is valid under section 998. (Id. at p. 1208.) The
court noted that since the jury renders a single lump sum verdict,
it is simple to compare the joint offer to the verdict in order to
determine whether a more favorable result was obtained at trial.
(Id. at pp. 1207–1208.)
3.2. Unallocated joint settlement offers made by
multiple parties.
To some extent, our courts have applied the rationale of the
cases just discussed to circumstances in which an unallocated
joint settlement offer is made by multiple parties. The Lews rely
on two such cases, Gilman and Hurlbut v. Sonora Community
Hospital (1989) 207 Cal.App.3d 388 (Hurlbut). But as we explain,
that approach does not always make sense and, perhaps for that
reason, our courts have not taken a uniform approach to cases in
this area. (See McDaniel, supra, 214 Cal.App.4th at p. 1207
[recognizing divergent approaches].)
The Lews first cite to Hurlbut, a personal injury case
arising out of injuries sustained by an infant during birth. There,
the child and both parents sued the hospital where the birth took
place. The parents sought emotional distress damages and the
child sought damages relating to her physical injuries. (Hurlbut,
supra, 207 Cal.App.3d at p. 393.) Prior to trial, the three
plaintiffs made a joint, unallocated settlement offer to the
hospital proposing two alternatives: a cash payment of $499,000
plus monthly payments in the amount of $17,000 for the life of
the child, increasing at a rate of 4 percent per year, or a single
lump sum payment in the amount of $1,900,000. (Id. at p. 407.)
The jury awarded damages as follows: $11,500 per month plus
$250,000 noneconomic damages to the child, $250,000
noneconomic damages to each of the parents, $350,000 to the
mother representing lost earning capacity, and $14,603
reimbursement for care already provided to the child. (Id. at p.
393.) The trial court granted plaintiffs’ request for expert witness
fees based on the settlement offer. (Id. at p. 394.)
The Court of Appeal reversed the award, noting that
section 998 makes no mention of structured settlements and
plaintiffs introduced no evidence concerning the present value of
either their proposed settlement or the jury’s award. (Hurlbut,
supra, 207 Cal.App.3d at pp. 408–409, 411.) Plaintiffs therefore
failed to establish, as section 998 requires, they obtained a more
favorable verdict: “Having failed to present evidence sufficient to
establish the present value of the structured settlement offer,
plaintiffs may not take advantage of the benefits offered under …
section 998.” (Id. at p. 409.) The court concluded, “[a]bsent such
findings, it is impossible to determine whether plaintiffs achieved
a more favorable judgment at trial, making the … section 998
offer unenforceable.” (Id. at pp. 408–409.)
Hurlbut offers little guidance to us here, as we are not
concerned with a structured settlement nor any other problem of
valuation concerning the plaintiffs’ offer or the subsequent
judgment. But the Lews rely on additional analysis by the court
which is, arguably, dicta. After concluding the plaintiffs failed to
establish the value of either their settlement offer or the jury’s
verdict, and therefore failed to establish they obtained a more
favorable judgment, the court went on to state that the joint
nature of the settlement offer “precludes a determination of
whether each plaintiff received a judgment more favorable than
the offer.” (Hurlbut, supra, 207 Cal.App.3d at p. 409, original
emphasis.) The court briefly discussed Randles, which, as already
noted, involved an unallocated offer from a defendant to three
plaintiffs with severable causes of action. (Ibid.) At trial, the
plaintiffs received damage awards totaling less than the
settlement offer. Nevertheless, the court denied the defendant’s
request for costs because the unallocated offer made it impossible
to determine whether any individual plaintiff received a less
favorable result than he would have under the settlement offer.
After noting Randles involved an offer to multiple
plaintiffs, the court in Hurlbut stated the same principle should
apply to an offer from multiple plaintiffs. (Hurlbut, supra, 207
Cal.App.3d at p. 409.) It therefore concluded the settlement offer
in the case before it was invalid: “To consider plaintiffs’ joint
settlement offer as valid would deprive defendant of the
opportunity to evaluate the likelihood of each party receiving a
more favorable verdict at trial. Such an offer makes it impossible
to make such a determination after verdict.” (Id. at p. 410.)
Although Hurlbut is not controlling,7 as the Lews assert,
we pause to comment on its reasoning. It is not at all apparent,
as Hurlbut suggests, that the principle stated in Randles and
Meissner should apply with equal force in the converse
circumstance. In Randles and Meissner, the defendant chose to
lump the plaintiffs together and in so doing, not only melded
their separate claims together, but also required all of them to
agree to the proposed settlement terms. As the court noted in
Meissner, if that sort of offer were valid under section 998, a

7 There is no horizontal stare decisis in the California Court of
Appeal. (See, e.g., Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480,
1489, fn. 10.)
plaintiff could be liable for additional costs under section 998
through no fault of her own, as in the case where an offer is made
to multiple plaintiffs and one plaintiff wants to settle but others
do not. (Meissner, supra, 212 Cal.App.3d at p. 791.) No similar
concern is present in the converse situation—where plaintiffs
with separate claims choose to band together for the purpose of
offering a global settlement to a single defendant. In that
instance, the plaintiffs have presumably negotiated the allocation
of any settlement to their satisfaction and they are in control of
their exposure to liability under section 998. And the individual
party receiving the offer does not have to obtain the consent of
other parties—or risk exposure to additional costs under section
998. As a practical matter, it may not be possible for any of the
plaintiffs to establish they obtained a more favorable verdict—as
in the case where each plaintiff later receives an amount less
than the settlement offer—but that will not always be the case
and would not, in any event, justify a rule that joint offers from
multiple parties are always invalid.
In the other case relied upon by the Lews, Gilman, the
Court of Appeal followed Hurlbut. There, multiple heirs sued a
skilled nursing facility following the decedent’s death. (Gilman,
supra, 231 Cal.App.3d at p. 123.) Collectively, the plaintiffs
offered to settle the case for $250,000, then made a second offer to
settle for $150,000. (Id. at p. 124.) The total judgment for
plaintiffs was $228,379.79—more favorable than their second
settlement offer. (Id. at p. 124 & fn. 4.) After taking the view that
the heirs had individual, rather than indivisible, claims, the court
referenced the rationale of Hurlbut: “the joint offer to compromise
did not afford [the defendant] the opportunity to evaluate the
separate and distinct loss suffered by each plaintiff as a result of
the death” of the decedent. (Id. at p. 126.) But ultimately the
court concluded that, as a practical matter, “[w]ithout an
apportionment of the damages among the four plaintiffs, it is
impossible to say that any one of them received a judgment more
favorable than she would have received under the [settlement]
offer.” (Ibid.)
Drawing on these cases, the Lews argue here that the
plaintiffs’ joint settlement offer was “void ab initio.” But the idea
that an offer jointly made is invalid from its inception, simply
because it is jointly made, has been repeatedly rejected.
In Stallman v. Bell (1991) 235 Cal.App.3d 740 (Stallman),
for example, plaintiffs’ decedent died in a car accident. The
decedent’s widow sued the defendants for wrongful death and the
decedent’s estate sought damages for personal injury and
property damage. (Id. at p. 743.) The defendants rejected a joint
settlement offer from the widow and the estate in the amount of
$225,000. (Ibid.) After obtaining a less favorable judgment at
trial, defendants challenged the plaintiffs’ request for costs based
upon their section 998 settlement offer, arguing the “statutory
offer was void from its inception because it was made jointly by
both the [widow] and decedent’s estate.” (Id. at p. 745.) The court
observed that although Hurlbut held a similar joint offer invalid,
“[m]ore recent cases have declined to mechanically apply a rule
that renders void any joint offers without first examining
whether it can be determined that the party claiming costs has in
fact obtained a more favorable judgment.” (Id. at p. 746.) The
court concluded that in the case before it, it was possible to
determine with certainty that plaintiffs obtained a more
favorable judgment (even though the amount of the offer and the
amount of the judgment were very close) because the jury
rendered a single verdict for both plaintiffs. (Id. at p. 747.) Thus,
the court could compare the joint unallocated offer to the single
unallocated verdict and determine which side obtained the more
favorable judgment.
The court applied similar reasoning in Fortman v. Hemco,
Inc. (1989) 211 Cal.App.3d 241 (Fortman). There, a toddler
suffered severe injuries after she fell out of a moving car. (Id. at
p. 248.) The toddler filed a personal injury claim against the
manufacturer of a custom part installed on the car; her mother,
the driver of the car, sought emotional distress damages. The two
plaintiffs offered to settle their claims for $1 million and the
defendant rejected the offer. (Id. at pp. 246–247, 249.) The
mother later dismissed her claim and the case proceeded to trial
only on the toddler’s claim. (Id. at p. 262.) The jury awarded the
toddler more than $23 million in damages. (Id. at p. 250.)
Challenging the award of prejudgment interest to the
toddler, which was based on the section 998 settlement offer, the
defendant argued the plaintiffs’ offer was invalid because it was
jointly made. (Fortman, supra, 211 Cal.App.3d at p. 263.) Citing
cases holding that an unallocated offer to multiple plaintiffs is
invalid under section 998, the defendant argued, as was argued
in Hurlbut, that because the joint offer from the two plaintiffs
was unallocated, it was impossible to determine whether a more
favorable verdict was obtained at trial. (Ibid.)
The court rejected that argument, however, noting that a
mechanical application of a rule against joint settlement offers
lacked common sense. Specifically, the court concluded “it is
absolutely clear that [the toddler] received a greater amount in
damages after trial than she would have received had [the
defendant] accepted the joint offer even if the entire amount of
the offer, $1 million, is attributed to her. … [The toddler’s] $23
million-plus award leaves no doubt in anyone’s mind that her
recovery far exceeded the statutory offer.” (Id. at p. 263; see also
Deocampo v. Ahn (2002) 101 Cal.App.4th 758, 776 [where
husband sued for injury and wife sued for loss of consortium,
joint settlement offer for $1 million valid where jury awarded
husband $11 million; verdict exceeded offer to such an extent it
was absolutely clear husband obtained more favorable
In another case, Johnson v. Pratt & Whitney Canada, Inc.
(1994) 28 Cal.App.4th 613 (Johnson), the appellate court took a
similar approach. Plaintiffs’ decedent, a Marine Corps pilot, died
in a helicopter crash. The surviving spouse and children of the
decedent sued the manufacturer of the helicopter engine
contending it used defective fuel nozzles in the engine. (Id. at p.
615.) The manufacturer rejected plaintiffs’ $1 million unallocated
joint settlement offer; the jury subsequently awarded the three
plaintiffs $2.1 million in economic damages and awarded the
decedent’s spouse $1.3 million in noneconomic damages. (Id. at p.
628.) The trial court awarded plaintiffs additional costs, including
expert witness fees, based on their section 998 offer. The
defendant argued the joint offer was invalid because (as the Lews
argue here) “it could not evaluate the joint offer with respect to
each plaintiff at the time the offer was made and it is now
impossible to tell what portion of the combined verdict the jury
assigned to each plaintiff. … [I]t cannot be determined if the
award was more favorable than the terms of the offer; and the
court should have denied plaintiffs’ motion for prejudgment
interest and expert fees.” (Ibid.)
Following the reasoning of Stallman, the appellate court
affirmed the cost award. The court emphasized, as a matter of
“common sense,” that plaintiffs made a joint offer of $1 million
and received verdicts of $2.1 million (for all three heirs) and
$1.3 million (for the decedent’s spouse). (Johnson, supra, 28
Cal.App.4th at p. 630.) “Compelling logic leads to the conclusion
that these plaintiffs recovered more than the amount of their
section 998 offer.” (Ibid.)
These courts rejected the rule that an unallocated joint
offer is always invalid, even though such an offer might
theoretically render it impossible to determine later whether a
party claiming costs obtained a more favorable verdict and is
therefore entitled to costs under section 998. In Fortman, for
example, the $1 million joint offer from the plaintiffs could have
made it impossible for one of the plaintiffs to prove she obtained a
more favorable verdict. Had the toddler received $800,000 at
trial, for example, it would be impossible to know whether she
fared better under the verdict or under the unallocated joint offer
of $1 million. But where the verdict in favor of one plaintiff
exceeds the offer that was jointly made, as was the case in
Fortman where two plaintiffs offered to settle for $1 million and
one plaintiff later received a $23 million verdict, that plaintiff can
establish with certainty, as section 998 requires, that she
obtained a more favorable verdict.
These decisions impliedly, though not explicitly, reject the
argument (made by the Lews here) that an unallocated joint offer
from multiple parties should always be invalid because it
precludes the receiving party from evaluating the claims of the
offering parties separately. And this notion, drawn from cases
such as Meissner where the parties receiving an unallocated joint
offer must all agree to settle or risk exposure to additional costs
under section 998, does not readily apply in reverse. As we have
said, if an unallocated offer from one party to multiple opposing
parties were valid, the party making the offer would effectively
force the opposing parties to work together and would, where
those parties cannot agree, subject even parties who wish to
settle to the punitive effect of section 998. As our courts have
observed, although the Legislature enacted section 998 to
encourage settlement of litigation, it did not intend the costshifting
provisions to apply to parties who wish to settle but
cannot do so through no fault of their own. But where, as here,
multiple parties choose to band together and offer a global
settlement, that concern is simply not present.
At least one court has directly criticized the sort of
argument advanced by the Lews in this case. In Persson v. Smart
Inventions, Inc. (2005) 125 Cal.App.4th 1141 (Persson), the
plaintiff and defendant Nokes were founders and shareholders of
Smart Inventions, Inc. (Id. at p. 1146.) The plaintiff sued Nokes
and Smart Inventions (collectively, the defendants) for fraud and
breach of fiduciary duty. (Ibid.) The defendants jointly offered to
settle the case for $500,000; Persson refused and later obtained a
judgment for $306,000 plus attorney’s fees. (Id. at pp. 1146,
1169.) After trial, the defendants sought an award of attorney’s
fees based on their joint settlement offer. (Id. at p. 1169.) The
trial court found the defendants’ settlement offer invalid under
section 998 because the offer was unallocated as between the
defendants. The court noted that a joint offer from defendants
may be valid under section 998 where the defendants are jointly
and severally liable. (Ibid.) But in the case before it, the
defendants’ liability was not coextensive: the court had already
ruled, at the time of the offer, that Smart Inventions did not owe
the plaintiff any fiduciary duty. (Ibid.) On that basis, the court
denied the defendants’ fee request, stating: “Because the section
998 offer ‘was a joint and several offer for multiple defendants
and did not separate out and distinguish between them and the
separate causes of action applicable to each,’ [the plaintiff] ‘was
not in a position to evaluate the offer.’ ” (Ibid.)
In reversing the order, the appellate court rejected the trial
court’s notion that the offer needed to separate the offers as
between the defendants, observing that “[a] joint offer by two
defendants that judgment in a stated amount may be taken
against each one of them, jointly and severally, even though one
defendant has no potential liability on one of plaintiff’s claims, is
not uncertain. The offer in no way prevents the plaintiff from
assessing his chances of obtaining a better judgment against
either defendant after trial. Moreover, such an offer does not
present any difficulty in determining whether the subsequent
judgment is more favorable than the offer. Consequently, no
reason exists for its invalidation.” (Persson, supra, 125
Cal.App.4th at p. 1170.) The court pointedly dismissed the
plaintiff’s argument that the joint offer placed him in an
untenable position because it deprived him of the opportunity to
assess the chance of prevailing against each defendant in an
amount in excess of the offer: “It is incomprehensible why a
plaintiff would be unable to evaluate an offer in which each
defendant offers to have judgment taken against him, jointly and
severally, in a stated amount … . The plaintiff need only assess
the chances of recovery on each of his claims, no matter which
defendant is liable, and add them together. If the joint offer
exceeds that amount, the plaintiff should accept it.” (Ibid.)
4. The plaintiffs’ joint settlement offer was not invalid.
Applying the rationale of Fortman and the other cases just
discussed, we conclude the court properly awarded plaintiffs costs
under section 998. Plaintiffs offered to settle both wrongful death
claims for $1.5 million and collectively recovered more than $2.6
million. And Virginia’s heirs plainly obtained a more favorable
verdict at trial, inasmuch as the jury awarded them more than
$2.2 million. Thus, the present case is similar to Fortman, where
the mother and toddler asserted separate claims for emotional
distress and personal injury, respectively, and the toddler later
obtained a verdict of $23 million—an amount far in excess of the
joint unallocated settlement offer of $1 million. Here, as there,
even if the entire amount of the settlement offer is attributed to
the wrongful death claim of Virginia’s heirs, it is plain they
obtained a more favorable result at trial.
Relying on Hurlbut and Gilman, the Lews argue that
plaintiffs’ joint offer to settle both wrongful death actions was
invalid “ab initio” because it “deprived [them] of the opportunity
to evaluate the likelihood that a jury would award damages to
Virginia Gonzalez’s heirs in excess of the $1.5 million 998 offer,
but award Maverick Crowder’s heirs less than the 998 offer.” As
we have said, this argument has been rejected by a number of
courts in circumstances where it is plain that one of the parties

8 It is not clear that Maverick’s heirs fared better at trial. But it is
significant that the focus of trial was on the cause of the fire that killed
both plaintiffs’ decedents, and all the plaintiffs were represented by
the same counsel below, apparently proceeding as a unit. After trial,
plaintiffs submitted a joint cost bill. The Lews have not requested any
reduction in or allocation of the cost award, only that it be reversed in
its entirety, and we therefore do not consider that issue.
offering joint settlement later obtains a verdict that exceeds the
joint offer. Moreover, as the court pointed out in Persson, it is
“incomprehensible” that the Lews could not evaluate the risk of
refusing the settlement offer because it was not allocated
between the two sets of heirs. The Lews could have evaluated
their exposure on the wrongful death claims individually and
then added the figures together. If they fared better under
plaintiffs’ offer, it would have been prudent to accept it. Plainly,
the Lews did not anticipate that either wrongful death claim,
standing alone, would exceed the settlement offer. And this is
precisely the situation in which an additional cost award under
section 998 is appropriate and in furtherance of the goal of
encouraging parties to accept reasonable settlement offers. (See,
e.g., Hurlbut, supra, 207 Cal.App.3d at p. 408 [“ ‘As a general
rule, the reasonableness of a defendant’s offer … represents a
reasonable prediction of the amount of money, if any, defendant
would have to pay plaintiff following a trial’ ”].)
The Lews also assert “[t]here was no single, indivisible
injury to evaluate for settlement purposes.” Although we agree
plaintiffs did not suffer a single, indivisible injury because they
are the heirs of two different and unrelated decedents, we
conclude that fact does not preclude the application of section 998
here. In several of the cases discussed ante, the parties offering
settlement had different claims stemming from different types of
injuries: Stallman involved claims by both the estate and the wife
of a decedent, Fortman involved a personal injury claim by a
toddler and an emotional distress claim by the toddler’s mother,
and Deocampo involved a personal injury claim by a husband and
loss of consortium by his wife. (Stallman, supra, 235 Cal.App.3d
at p. 743; Fortman, supra, 211 Cal.App.3d at p. 249; Deocampo,
supra, 101 Cal.App.4th at p. 766.) In each of those cases, the
courts awarded additional costs under section 998,
notwithstanding the absence of a single, indivisible injury.
In evaluating the application of section 998 in various
factual contexts, we are guided by the overarching policies in
favor of encouraging reasonable settlements, compensating
injured parties, and avoiding the injection of uncertainty into the
998 process—a result certain to encourage gamesmanship and
other actions incompatible with the goal of resolving, rather than
creating, legal disputes. (See Martinez, supra, 56 Cal.4th at pp.
1020–1021; Kahn, supra, 240 Cal.App.4th at pp. 242–244.) If
plaintiffs with disparate claims want to make a global settlement
offer which would put an end to the litigation at hand (and work
out the details among themselves), they should be encouraged to
do so.

Outcome: The order denying in part and granting in part the motion to tax costs is affirmed. Respondents to recover their costs on appeal.

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