Lead Opinion
Opinion
Glоria Peterson, individually, and as successor in interest to her deceased husband, and as his legal heir, appeals from an adverse
I. FACTS AND PROCEDURAL HISTORY
Gloria Peterson and her husband, John, filed a lawsuit in April 1999 alleging that John’s asbestosis and lung cancer were asbestos related.
John died in October 1999, while the litigation was pending. In Marсh 2000, the court granted Gloria Peterson’s motion to appoint her as the successor in interest to John’s claims, “substituting her for [the] deceased plaintiff,” and granted her leave to file a second amended complaint.
A. The Second Amended Complaint
In her “SECOND AMENDED COMPLAINT FOR SURVIVAL, LOSS OF CONSORTIUM, WRONGFUL DEATH—ASBESTOS,” Gloria Peterson continued to pursue her individual claim for loss of consortium, added survivor claims as John’s successor in interest, and also added wrongful death claims as John’s legal heir.
The caption of the second amended complaint identified Gloria Peterson, in all of her various capacities, as the singular “Plaintiff” in the case: “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Deceased; and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, [$] Plaintiff.” In addition, allegations of the second amended complaint consistently referred to the “plaintiff,” singular and to plaintiff’s “injury,” singular. The prayer sought judgment for “plaintiff.”
Similarly, the caption of Peterson’s verified answers to standard asbestos case interrogatories indicated that Gloria Peterson, in all her capacities, was
B. John Crane’s Section 998 Offers
Respondent John Crane, Inc. (John Crane), extended two settlement offers under section 998, both after the filing of the second amended complaint.
The first section 998 offer, dated October 30, 2002, was directed to “GLORIA PETERSON, PLAINTIFF, AND TO HER ATTORNEYS OF RECORD.” John Crane offered to waive its costs, “including, but not limited to, any and all expert witness fees, in exchange for a dismissal with prejudice, and plaintiff’s agreement to bear her own costs.” (Italics added.) In this offer, therefore, John Crane indicated there was only one plaintiff. The offer was not accepted.
John Crane’s second section 998 offer, dated April 30, 2004, was more specifically directed to Gloria Peterson in all of her capacities, as “plaintiffs”: “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Decedent, and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, Plaintiffs, AND TO THEIR ATTORNEYS OF RECORD.” (Italics added.) The caption identified Gloria Peterson, in all her capacities, as “Plaintiffs.” The essential term of the offer was the same as the first section 998 offer, except that it referred to “plaintiffs”: “Defendant, JOHN CRANE INC., in the above entitled action pursuant to Section 998 of the California Code of Civil Procedure hereby offers a waiver of costs, including, but not limited to, any and all expert witness fees, in exchange for a dismissal with prejudicе, and plaintiffs’ agreement to bear their own costs.”
C. Trial
The case proceeded to trial by jury. During his opening statement, Peterson’s attorney asked rhetorically: “Who is the plaintiff and who was the decedent?” Counsel answered: “The plaintiff in this case is Gloria Peterson. Ms. Peterson is here with us today. She is back in the courtroom.”
At the conclusion of the case, the jury was provided with a special verdict form, agreed upon by plaintiff, which referred consistently to the plaintiff,
The jury returned a verdict of no liability on the part of John Crane.
D. John Crane’s Memorandum of Costs and Peterson’s Motion to Tax Costs
Having prevailed at trial, John Crane filed a memorandum of costs, seeking over $98,000 for items including expert costs and fees pursuant to section 998.
Peterson filed a motion to tax costs, indicating this time that there were really three “plaintiffs”—Gloria Peterson individually (loss of consortium claim), as successor in interest (survivor claims), and as legal heir (wrongful death claims). In the written motion, Peterson challenged the memorandum of costs by asserting, among other things, that there was more than one action or claim in the case and more thаn one plaintiff, and that the section 998 offer “was not allocated to each plaintiff rendering it ambiguous and invalid and therefore CRANE is not entitled to recover expert fees and costs.”
At the hearing on Peterson’s motion to tax costs on August 3, 2005, Peterson’s counsel attacked the second section 998 offer, contending it was
The trial court found that John Crane’s second section 998 offer was valid and awarded John Crane approximately $72,000 in costs, including nearly $50,000 in expert witness fees. The court did not inquire into the relative financial resources of the parties or Peterson’s ability to pay. Nor did Peterson request such an inquiry.
Judgment was entered in accord with the jury’s special verdict and the trial court’s award of costs to John Crane. This appeal followed.
II. DISCUSSION
Under section 998, until 10 days before trial “any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b).) Although section 998 refers to entry of a judgment or award, an offer that provides for the рlaintiff’s dismissal of the action with prejudice is a valid form of offer under section 998. (Hartline v. Kaiser Foundation Hospitals (2005)
If the offer is not accepted within 30 days or before trial, it is deemed withdrawn. (§ 998, subd. (b)(2).) The failure to accept an offer has consequences for a plaintiff who does not obtain a more favorable result at trial. In that event, the plaintiff cannot recover its postoffer costs, must pay the defendant’s costs from the time of the offer, and may be held liable (as was the case here) for a reasonable sum to cover the defendant’s expert witness fees. (§ 998, subd. (c)(1).)
Peterson contends the award of expert witness fees was erroneous in this matter because (1) the section 998 offer was invalid, in that it was a single
A. Validity of Section 998 Offer
In general, “ ‘a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.’ ” (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003)
Peterson contends that there were actually three plaintiffs in this case because she sued in three different capacities. Further, Peterson argues, John Crane’s second section 998 offer did not make any allocation among the three plaintiffs and was conditioned on acceptance by all three. Because her three capacities did not have a unity of interest, she maintains, the offer was invalid.
John Crane, as the offeror, had the burden of establishing that the offer was sufficiently certain to comply with the requirements of section 998. (Taing v. Johnson Scaffolding Co. (1992)
In determining de novo whether John Crane’s offer was valid for purposes of section 998, we consider first how many parties the offer addressed. If more than one, we would consider whether the section 998 offer was apportioned among the offerees and not conditioned on all of them accepting
Number of Party Offerees
In the second amended complaint, Peterson sued John Crane in her capacities as an individual (loss of consortium claim), as successor in interest to her husband’s claims (survivor tort claims), and as her husband’s legal heir (wrongful death claims). Peterson argues there were three plaintiffs because no one of them had standing to prosecute the causes of action vested in the others. John Crane argues, essentially, that there was one person prosecuting the action, so regardless of the number of capacities in which she sued, there was still only one plaintiff.
Ironically, the parties’ positions in this appeal are contrary to their characterizations in much of the trial court proceedings. Through the time of trial it was Peterson who, despite proceeding in multiple capаcities, depicted herself as a “plaintiff,” singular, while it was John Crane who described Peterson in its second section 998 offer as “plaintiffs,” plural, directing the offer to Gloria Peterson in each of her three capacities and seeking dismissal of all claims in exchange for “plaintiffs’ agreement to bear their own costs.” (Italics added.) In the matter before us, however, the question of the number of plaintiffs in the action is a legal one that is not dependent on the parties' characterizations.
We disagree with Peterson’s contention that Gloria Peterson, the individual, Gloria Peterson, as the successor in interest to her husband’s claims, and Gloria Peterson, as her husband’s legal heir, constituted three separate parties and three offerees for purposes of section 998.
We begin with the language of the statute. (Hsu v. Abbara (1995)
Peterson’s multiple capacities merely reflected why she, as a singular party, had standing to assert different types of claims. (See § 367 [lawsuit must be prosecuted in name of real party in interest].) In her individual capacity, Peterson had standing to pursue her claim for loss of consortium. In her capacity as successor in interest, she “succeed[ed] to [the] cause of action” of her deceased husband (§ 377.11) and was “substitute^]” in as plaintiff for her late husband’s claims. The “as Successor-in-interest” language in the caption of the second amended complaint therefore explained why the individual Gloria Peterson had standing to sue for the claims formerly held by her husband, but it did not create a different Gloria Peterson or a separate plaintiff. Similarly, in her capacity as her husband’s “heir[]-at-law,” Peterson brought the wrongful death causes of action pursuant to section 377.60, which provides that a decedent’s surviving spouse has standing to sue for wrongful death. (§ 377.60, subd. (a).) The “as Legal Heir of JOHN PETERSON” language in the caption explained why the person known as Gloria Peterson had standing to sue, but it did not create a separate plaintiff.
Thus, when Peterson assumed the roles of successor in interest аnd legal heir, she did not become a different person, a different plaintiff, or a different party, but merely acquired the legal capacity to pursue particular legal theories (as the same individual party). There was only one offeree plaintiff for purposes of section 998.
Peterson’s reliance on Menees v. Andrews (2004)
Peterson also relies on cases in other discreet contexts that view a person who has sued in different capacities to constitute multiple plaintiffs. None is persuasive in the context of section 998 or in this case particularly.
In Quiroz v. Seventh Ave. Center (2006)
Quiroz sheds no light on the issue before us. Quiroz did not deal with a section 998 offer and did not determine whether an individual who sues in different capacities should be entitled to separate or apportioned section 998 offers. Its use of the phrase “different plaintiffs” does not compel the conclusion that a person who sues in multiple capacities constitutes more than one party for purposes of section 998.
Paquet is not on point. It was not decided in the context of section 998. Moreover, claims brought by executors and guardians ad litem, as well as shareholder derivative actions, are representative claims. Peterson’s roles as “Successor-in-interest” and “Legal Heir” are not representative capacities. Peterson was not appointed to represent the interest of minor children or absentee plaintiffs, but merely stepped into her husband’s position as to the survivor actions and prosecuted claims on her own behalf as legal heir. As Paquet recognized, “a party” can “bring[] an action in multiple capacities.” (Paquet, supra,
For the reasons that Quirez and Paquet are not on point, we find Dominguez v. City of Alhambra (1981)
Consideration of the purposes of section 998, and the intent behind the judicially created rules regarding section 998 offers to multiple parties, confirms that Peterson should not be treated as three different plaintiffs. At the core of the rules pertaining to section 998 offers to multiple plaintiffs is the concern that the multiple parties will not be able to agree whether to accept the offer and, as a result, the chance for the settlement of at least some of the claims in a case will be lost. (Menees, supra,
Indeed, the interpretation that Peterson urges might well frustrate the settlement purposes of section 998. A defendant may be willing to settle for a certain sum if the settlement would actually end the case for that defendant,
Much closer to the matter at hand than the relation-back and appealability cases is the decision in Fremont, supra,
The Court of Appeal held that the defendant had upheld its burden of establishing the validity of the section 998 offer. Although suit had been brought for the benefit of different government agencies and individuals, the court construed the People as a “single plaintiff.” (Fremont, supra,
Consistent with Fremont, we conclude that Gloria Peterson was a “single plaintiff,” capable of deciding for herself whether a dismissal of all of her claims in exchange for a mutual waiver of costs was an acceptable resolution. (Fremont, supra,
Peterson insists that she should be considered multiple parties because it would have been easy for John Crane to send three separate section 998 offers rather than one. The argument is unconvincing, as it also would have been easy for Peterson’s attorney to make some effort to clarify or negotiate the matter with the attorney for John Crane, or to send out a counteroffer to her liking. In any event, it is not the ease of performing a task that determines whether a statute rеquires its performance. After all, it would be simple enough in this computer age for a litigant to serve separate section 998 offers for each of 10 or 20 causes of action, but there is no such mandate. (See Fremont, supra,
As the law presently stands, a single offer to more than one person must generally be apportioned and unconditional. (See, e.g., Menees, supra,
In the end, we will leave intact the bright-line rule that a separate offer (or an apportioned and unconditional joint offer) should be extended to each party, not to each capacity in which a singular individual chooses to sue. (See Menees, supra,
There was one plaintiff and party-offeree for purposes of section 998 in the matter before us. Peterson has thus failed to establish that the section 998 offer was invalid as an offer to multiple parties.
B. Parties’ Relative Economic Resources in Calculating Reasonable Award
An award of expert witness fees under section 998 must be for no more than a “reasonable sum” covering the defendant’s costs of the services of expert witnesses, “actually incurred and reasonably necessary” in trial or preparation for trial. (§ 998, subd. (c)(1).) A determination that a cost award under section 998 is reasonable is reviewed for an abuse of discretion. (Seever v. Copley Press, Inc. (2006)
Peterson contends that the reasonableness of an award of expert witness fees necessitates inquiry about the parties’ respective financial situations. Because the trial court made no such inquiry, she argues, the section 998 award must be reversed and the matter must be remanded for a hearing on that issue. She bases her argument on Seever, supra,
In Seever, the plaintiff sued his employer for disability discrimination, family and medical leave discrimination, and age disсrimination, in violation
The Seever court explained that, from its perspective, trial courts must ensure that the incentives to settle are balanced between the two parties, so less affluent parties will not be pressured into accepting unreasonable offers merely to avoid the risk of a financial penalty they cannot afford. (Seever, supra, 141 Cal.App.4th at pp. 1561-1562.) Thus, Seever maintained, trial courts may have to “ ‘scale’ the financial incеntives (in this instance the section 998 cost awards) to the parties’ respective resources.” (Seever, supra, at p. 1562.) The court observed that this consideration is “especially important in the context of litigation under FEHA (California Fair Employment and Housing Act; Gov. Code, § 12900 et seq.) and similar laws” and relied on federal and state employment decisions which “demonstrated sensitivity to the imbalance inherent in allowing equal cost shifting between unequal parties.” (Seever, supra, at p. 1562.) The Seever court remanded the case for a further evidentiary hearing because it was unknown whether “the cost award allowed here represents an unduly powerful settlement incentive to a litigant of Seever’s means.” (Ibid.)
Peterson argues that, as in Seever, the trial court here made no inquiry as to the parties’ respective economic means, and the case should be remanded for consideration of the economic disparity between the corporation John Crane, on the one hand, and the widow Peterson, on the other. John Crane counters that Seever should be limited to age and disability employment discrimination cases, and warns that adoption of the Seever rule would require offerors to calibrate section 998 demands not only based on the strength of the case, but also on the offeree’s perceived ability to pay expert witness costs, ultimately providing an advantage to poorer plaintiffs and a disadvantage to corporations.
We decline to exercise our discretion in this regard, however. The reasonableness of a section 998 award was a statutory requirement that preceded Seever, so the fact that Seever was issued after entry of judgment is of little moment. Moreover, the resolution of the issue does not involve an important question of public policy or public concern, but simply determines whether in this particular case a trial court abused its discretion in deciding how much one party should pay another. In addition, not only did Peterson fail to contend in the trial court that the parties’ respective economic resources should be considered, there is no indication that Peterson actually lacked the financial ability to pay the costs claimed by John Crane or that they constituted an “unduly powerful settlement incentive to a litigant of [Peterson’s] means.” (Seever, supra,
Peterson has not established that the amount of the trial court’s award of expert witness fees was unreasonable.
HI. DISPOSITION
The judgment is affirmed.
Gemello, J., concurred.
Notes
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
We refer to John by his first name for clarity, without intending any disrespect.
There was no explanation in the record or at oral argument for the reference in the second section 998 offer to “plaintiffs” instead of “plaintiff.”
The written motion addressed John Crane’s first section 998 offer of October 2002, which had been directed solely to “Gloria Peterson.” Peterson’s objection to the second and operative section 998 offer was raised only at the hearing.
Peterson’s notice of appeal states that “Plaintiff and Appellant GLORIA PETERSON appeals” from the judgment. It does not state that Peterson is appealing as several appellants, or that she is appealing in various capacities. Peterson’s notice of election under the California Rules of Court advised that “Plaintiff and Appellant” Gloria Peterson intended to proceed by аppendix and requested preparation of reporters’ transcripts.
Section 998, subdivision (c)(1) reads: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover 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 defendant.”
The second section 998 offer extinguished the first. (Palmer v. Schindler Elevator Corp. (2003)
John Crane contends that the doctrine of judicial estoppel bars Peterson from arguing there were multiple plaintiffs. John Crane also urges that, by failing to object to the section 998 offer while it was pending, Peterson waived her right to contend the offer was invalid due to ambiguity. Peterson counters that her position in her motion to tax costs in the trial court was consistent with her position on appeal. We need not and do not decide whether judicial estoppel or waiver apply in this case, because we find that Peterson’s arguments lack merit on other grounds. We do observe, however, that it would be consistent with the settlement purposes of section 998 for an offeree to clarify any perceived ambiguity of an offer with the offeror.
Of course, the “person” can be a natural person or a separate legal entity such as a corporation. More generally, “party” can also refer to a group of people formed to engage in a shared activity. (See Oxford English Dict., supra, definition III, 11.) As applied in this case, therefore, a party may be a single individual or a group of individuals, but there is no indication that a single individual can be three parties. (See Black’s Law Dict. (6th ed. 1990) p. 1122 [definition of party includes “[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually”]; Black’s Law Dict. (7th ed. 1999) p. 1144 [defining party as one who takes part in a transaction or “[o]ne by or against whom a lawsuit is brought”].)
Accepting Peterson’s argument—that an individual who sues in more than one legal capacity constitutes multiple plaintiffs and parties—would open a Pandora’s box of procedural anomalies. For example, would Gloria Peterson, in each of her capacities, be entitled to separate voir dire, cross-examination of witnesses, and closing argument at trial? Would she be subject to depositions in each of her capacities? Could John Crane evade the statutory limit on the number of interrogatories by sending different sets of interrogatories to Gloria Peterson in each of her capacities?
The initial concern prompting nullification of joint offers to multiple plaintiffs was that, unless the proposed settlement sum was apportioned among those plaintiffs, it would be impossible to determine if any one of them did better at trial. (Randles v. Lowry (1970)
Furthermore, given the absence of any such evidence in the record, it cannot be said that the trial court abused its discretion in failing to consider it.
Dissenting Opinion
I respectfully dissent.
The majority concludes that the single Code of Civil Procedurе section 998
To begin, I agree with the majority’s statement of the controlling law. As a general rule, a section 998 offer that is made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003)
A. Was the Section 998 Offer Made to Multiple Parties?
I believe the answer to the first question plainly is yes. The offer was made to “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Decedent, and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, Plaintiffs.” (Italics added.) The use of the conjunctive “and” demonstrates clearly that John Crane made its offer to more than one party.
The majority implicitly concedes that the offer itself was made to more than one party, but concludes that the number of parties to whom the offer was made is a legal question that is not dependent upon the parties’ characterization. (Maj. opn., ante, at p. 506.) Even if I were to assume the
I turn to the statute at issue. As is relevant, section 998 states “any party may serve an offer . . . upon any other party to the action” to allow judgment in accord with the statute. (§ 998, subd. (b), italics added.) The common legal definition of the word “party” is “One by or against whom a lawsuit is brought. . . .” (Black’s Law Dict. (8th ed. 2004) p. 1154; see also Graham v. DaimlerChrysler Corp. (2004)
When Peterson filed her second amended complaint, she did so in two different legal capacities. As an individual, she filed a wrongful death claim. (See § 377.60, subd. (a).)
However, Peterson also brought suit against John Crane as a successor in interest to the claims that her deceased husband John had previously asserted. (See § 377.31.)
This conclusion is consistent with the long-established rule of Anglo-American jurisprudence that a husband and wife are entirely separate legal entities. (See, e.g., Follansbee v. Benzenberg (1954)
My conclusion on this point is also supported by a long line of cases that hold a person who sues in more than one legal capacity is viewed as more than one plaintiff. In Quiroz v. Seventh Ave. Center (2006)
In First Security Bank of Cal. v. Paquet (2002)
While none of these cases addressed the issue of multiple parties for purposes of a section 998 offer, the essential point in each is the same. When a plaintiff sues in more than one legal capacity, each capacity is treated as a separate plaintiff. I believe the same rule should apply to offers that are made pursuant to section 998.
The majority adopts a different analysis on many of these points. I respectfully disagree.
The majority interprets the word “party” in section 998 to mean “person” and then reasons that the multiple capacities under which Peterson sued were irrelevant because she was simply a single person who was asserting different types of claims. (Maj. opn., ante, at pp. 506-507.) While Peterson was a single person who was asserting different types of legal claims, she also was asserting those claims under different legal capacities. As Quiroz, Paquet, and Dominguez illustrate, when a plaintiff asserts different legal claims under different legal capacities, each capacity is treated as a separate plaintiff. In my view, the fact that Peterson was alleging claims under multiple legal capacities is not irrelevant, it is controlling.
Next the majority notes that the reason why offers to multiple plaintiffs are subject to special rules is the “concern that the multiple parties will not be able to agree whether to accept the offer and, as a result, the chance for the settlement of at least some of the claims in a case will be lost.” (Maj. opn., ante, at p. 510.) According to the majority, “[t]hat concern does not arise where the offeree is a single individual, prosecuting claims on her own behalf . . . who is faced with no greater internal mental debate than any
The majority also faults Peterson because she “never complained that she in one capacity had an insurmountable conflict with herself in another capacity. Nor is there any indication in the record that Peterson declined the offer because she believed it was invalid, was confused by its form, or was unable to agree with herself . . . .” (Maj. opn., ante, at p. 513.) In my view, these arguments fail to take into account the applicable standard of review. John Crane, as the offeror, had the burden of proving that the offer was valid under section 998. (Weinberg, supra,
In a related argument, the majority observes that it would hаve been “easy for Peterson’s attorney to make some effort to clarify or negotiate the matter with the attorney for John Crane, or to send out a counteroffer to her liking.” (Maj. opn., ante, at p. 512.) Of course, communication between opposing counsel on the subject of settlement should be encouraged, and counsel should realistically evaluate the risk of further proceeding to trial in the face of a reasonable section 998 offer. But I conclude a burden may not be shifted to, or placed on the offeree to prove a conflict between or among an individual person’s multiple capacities in which he or she brings an action. Whether silence is the proper response to what the offerees’ counsel concludes is an invalid single offer to multiple offerees, is a professional judgment counsel must make.
Next, the majority argues that accepting Peterson’s argument that an individual who sues in more than one legal capacity constitutes multiple plaintiffs “would open a Pandora’s box of procedural anomalies” such as whether each plaintiff would be entitled to voir dire, to cross-examine witnesses, or to participate in final argument. (Maj. opn., ante, at p. 510, fn. 10.) Of сourse, the parties to this appeal have not raised any issues regarding voir dire, the right to cross-examination, or the right to participate in final
Finally, the majority relies on People ex rel. Lockyer v. Fremont General Corp. (2001)
I conclude John Crane’s section 998 offer was made to multiple parties.
B. Apportionment and Conditionality
A section 998 offer to multiple parties must apportion its demand among the offerees and must not be conditioned on all of the offerees accepting the offer. I consider each concept in turn.
The purpоse behind the apportionment requirement is that, by making it clear what deal is being proposed to each plaintiff, it can later be determined
Here, John Crane’s section 998 offer required a dismissal of the action in exchange for a waiver of costs. No plaintiff was to receive any sum from John Crane. It is impossible to apportion “zero” or, at least, unnecessary to do so. There was no apportionment problem in the section 998 offer.
The requirement that the offer not be conditioned on the acceptance of all the offerees is based on the view that it is unfair to the plaintiff who believes the offer is reasonable as to him or her, and wants to accept it, but is precluded from doing so because another plaintiff refuses. From this perspective, conditionality frustrates the chances of settlement. (Menees v. Andrews, supra,
Here, John Crane’s section 998 offer required “o dismissal with prejudice, and plaintiffs’ agreement to bear their own costs.” (Italics added.) The offer was not expressly conditioned on acceptance by all of the plaintiffs, but such a condition may be implied where the offer is made in a single document that refers to plaintiffs in the conjunctivе. (Menees v. Andrews, supra, 122 Cal.App.4th at pp. 1543, 1544, 1546 [offer “to settle and dismiss the above-entitled action in its entirety for a waiver of costs, each party to bear its own costs and attorney’s fees” “made in a single document, which referred to appellants in the conjunctive” and “quite tellingly, provided only one signature line—for the attorney who represented both of them” was implicitly conditioned on acceptance by all plaintiffs]; Wickware v. Tanner (1997)
John Crane’s arguments to the contrary are unpersuasive. It relies on Santantonio v. Westinghouse Broadcasting Co. (1994)
John Crane also argues that the point of the conditionality rule is to avoid conflicts between two or more plaintiffs who hold different views on whether to proceed with a case, which does not occur when a single individual constitutes all of the plaintiffs. I disagree. The point of the rule is to avoid a situation where some claims in the case, held by one offeree, could have been settled but for the condition that all claims must be settled. John Crane’s offer was conditioned on all offerees dismissing all of their claims.
C. Unity of Interest
As mentioned, as an exception to the general rule, a defendant may extend a single, joint offer, conditioned on acceptance by all plaintiffs, “where the plaintiffs have a unity of interest such that there is a single, indivisible injury.” (Weinberg, supra,
To fall within the unity of interest exception, John Crane had to prove that Peterson, as an individual wrongful death plaintiff and as successor in interest suffered a “single, indivisible injury.” (Weinberg, supra,
D. Conclusion
In sum, I conclude John Crane’s section 998 offer was made to multiple parties, was not apportioned, but was conditioned on acceptance by all the offerees. I further conclude the unity of interests exception does not apply. Under these circumstances, the offer was fatally uncertain.
Appellant’s petition for review by the Supreme Court was denied October 31, 2007, S156654.
Unless otherwise indicated, all further section rеferences will be to the Code of Civil Procedure.
Before addressing the merits of the majority’s analysis, I must address two preliminary arguments John Crane has made. First, John Crane contends Peterson is barred by the doctrine of judicial estoppel from arguing there were multiple plaintiffs. I reject that argument because Peterson’s position in her motion to tax costs is consistent with the position she takes here. Also unpersuasive is John Crane’s argument that, by failing to object to the section 998 offer, Peterson waived her right to contend it was invalid due to ambiguity. Peterson’s argument here and at the motion hearing, was that the section 998 offer was invalid because it was not apportioned and was conditioned on acceptance by all offerees.
Section 377.60 states in part, “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: [$] (a) The decedent’s surviving spouse . . . .”
Section 377.31 states: “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”