*1 July 24572. No. 1984.] [S.F. INC., Petitioner, COMPANY, COBB
T. M. COUNTY, Respondent; OF MARIN THE SUPERIOR COURT in Interest. al., STURM et Real Parties SHERRE
Counsel
Hardy & McPhee, McPhee and Jr., A. Charles Petitioner.
No appearance for Respondent.
Michael D. and Nelson Soni Leighton for Real Parties in Interest.
Opinion
BIRD, C. J. sole issue this case is whether offer of presented by The compromise made pursuant to section 998 of the Code of Civil Procedure is revocable.
I. The relevant facts are not interest, Real Sturm dispute. Sherre parties (hereafter, William Conrow real sued T. M. Cobb parties), petitioner, Inc., Company, and others for the and construction of real negligent design parties’ residence. Cobb was the approxi- manufacturer supplier mately units of sash and for the used in construction glass windows of the residence. Extensive around windows after leaks developed construction was completed.1 1Leaks developed had also supplied by in and doors which been other defend around had However,
ants. these present proceeding. defendants are not involved in the
On July real mailed to parties an offer to petitioner compromise 998 of the Code of Civil Procedure.2 In the real parties proposed $10,000. settlement in the amount of In a declaration to court, trial real 16, 1982, parties’ stated that on or about attorney August petitioner made $7,000 $8,000 a counteroffer of on the condition the offer be day. counteroffer was and the rejected, parties continued the discovery process.
Several depositions were taken in August. deposition testimony sug- gested that petitioner was more real considerably than had culpable realized at the result, time the offer was original made. As on August 1982, real parties wrote to were their petitioner stating they revoking offer of 21st. July Petitioner received the letter the In a letter day. following *4 to real dated parties August that it had petitioner acknowledged received real parties’ letter to revoke their offer. purporting Petitioner nevertheless stated that it was real offer of 21st. On accepting parties’ July the same day, petitioner filed its in court “acceptance” superior to section 998.3
Real then filed a motion to strike petitioner’s acceptance pe- titioner filed a motion for of in with the entry judgment accordance offer. provides “(b) 2Section 998 pertinent in part: days prior Not than 10 to commencement less the trial as defined in any party may subdivision 1 of Section in serve writing upon any party other judgment to the action to allow to be in taken accordance with the terms and conditions stated at accepted, proof that time. If such offer is the offer with of acceptance shall be filed judge and the clerk the If judgment accordingly. or shall enter such offer accepted made, is not prior days to trial or within 30 after it is whichever occurs first, withdrawn, it shall be deemed given and cannot be in upon evidence the trial. “(c) If an offer by made accepted a defendant is not plaintiff and the fails to obtain a more judgment, favorable plaintiff the shall not pay recover his costs and shall the defendant’s costs from addition, the time of the offer. In any proceeding in action or other than an action, court, eminent discretion, domain in may require plaintiff pay its defendant’s costs from the filing complaint date of of the and a sum to cover reasonable witnesses, costs of the of expert any services regular employees party, who are not actually either, both, reasonably incurred and necessary preparation or or trial by case the defendant. “(d) If an by offer made accepted is not and the defendant fails to obtain a more judgment, favorable may require pay the court in its discretion the defendant witnesses, reasonable sum regular to cover expert costs of the services of who are not employees either, any party, both, actually reasonably necessary incurred preparation or trial of the by plaintiff, plaintiff’s case in addition to costs.” All references are to the Code of Civil indicated. Procedure unless otherwise 3Section provides days. that an offer is withdrawn if not within 30 Petition acceptance er’s days was filed 35 parties’ argues after real offer was mailed. Petitioner mail, acceptance its timely theory by was on the that where a section 998 offer is served acceptance time for by days That section provides extended five to section 1013. mail, that if duty a document by any response any prescribed is served to make a within period is days extended five if place of address is in California. (see light parties properly this court’s determination that real their revoked 283), post, p. necessary 30-day question acceptance to reach the as to whether the period in by by is extended section 1013 when an offer is served mail. court to strike and denied superior real motion granted parties’ peti- tioner’s motion for entry judgment.
Petitioner now seeks a writ of mandate peremptory directing superior court to vacate its order and to grant striking petitioner’s acceptance peti- tioner’s motion to enter in accordance with the offer. judgment
II This court must decide whether an offer of compromise pur suant to section 998 be revoked the offeror to its prior offeree.
Section (b) subdivision days “Not less than provides: commencement of the trial 1 of as defined subdivision Section party may serve an offer in other to the action to writing upon any allow judgment to be taken in accordance the terms and with conditions stated at that If time. such offer is the offer with accepted, proof accept- ance shall be filed and the clerk or the shall enter accord- judge judgment If ingly. such offer is not or within 30 after it accepted prior days trial made, first, withdrawn, whichever occurs it shall be deemed and cannot *5 be in evidence given the trial.” upon
“The fundamental rule of construction is that the court statutory should ascertain the intent of the so as to effectuate the Legislature of the (Select (1959) law. Base Materials v. Board Equal. [Citations.]” 640, 51 672]; Cal.2d (1982) 645 P.2d accord v. Traubner [335 Martinez 755, 32 Cal.3d 758 1046]; 653 Moyer P.2d v. Work men’s Comp. (1973) Appeals Bd. Cal.3d intent, such must determining court first look (Ibid.)
words of the statute. Section 998 is silent as to the completely revocability irrevocability offers made alia, to that pursuant section. The statute does inter provide, for termination by of law: an operation offer “shall be deemed withdrawn” if it “is not . . within 30 days . after it is made . . . .” Petitioner asserts that this that the offer is irrevocable for those 30 language signifies However, days. real contend that the use of the word “withdrawn” parties in section 998 indicates that offers made to that section are revo- cable prior acceptance.
Both read too much into the This above-quoted language. language addresses only the effect that a of a of time—30 lapse prescribed period days—will have on an offer made the statute. Upon expiration withdrawn, may
of the and it the offer is considered 30-day period, does not here. The statute longer That is not situation accepted. his or her prior address whether an offeror withdraw may voluntarily of the 30-day period. the offeree and expiration prior whether in the resolves question statute Nothing quoted language such an offer is revocable or irrevocable.4 may law that an offer
It is a of contract well-established principle 1586; Code, (Civ. be revoked the offeror time acceptance. § Witkin, Grieve 619]; Summary Mullaly 211 Cal. P. Contracts, Contracts, 122; (8th 1973) of Cal. Law Rest.2d ed. p. § law, clear 42.) In it is of this of contract light established firmly principle irrevocable, that if the intended to make section 998 Legislature In the absence would have It did not. said so.5 expressly unequivocally to ac revoked prior of such rule that offers language, general should ceptance apply. contract law however,
Petitioner general that under section argues, Relying made and accepted. has no until after an offer has been applicability asserts, however, the conclusion that section prior authority requires 4The dissent 284.) by the dissent authority” relied on post, p. “prior offers are irrevocable. case, Denio century Scammon v. consists 19th New York cases and a California 287.) (Seepost, 72 Cal. p. 393 [14 P.98]. Scammon, however, whether a as to inapposite. That case involved issue day of the trial—was accept who did not was made on compromise—which an offer of (see post, five-day precluded before the recovering from costs where the had concluded trial court, holding 6) (72 395-397.) that the period expired. pp. fn. had Cal. at costs, days up, the five were plaintiff was if the trial ended before the entitled noted that (Id., never addressed The court compromise “simply goes naught.” offer of or irrevocable. question compromise are revocable as to whether offers of cases, decisions of court follow requiring As for the New York there no rule that this *6 they Moreover, involved distinguishable in a sister state. the New York cases are hand, statutory 998, 30-day involves a 10-day statute with a on the other period. Section period. concerning offers language example, Legislature unequivocal 5For has used such 66477.2, the time a (a) that if at provides dedication. Government Code section subdivision streets, rejected, “. . . the alleys, any paths, final etc. map approved, subdivision any at later body may by resolution legislative dedication shall remain and offer of added.) date, (Italics pre The the offer of dedication. accept ...” rescind its action and 66477.2, (a) and former Business subdivision decessor to Government Code section 128, 1, 876, 1943, repealed (Added p. and by ch. Professions Code 11616. Stats. § section 3464, 1, 1975.) contained 1974, 1536, 1, latter section by March This p. Stats. eff. ch. § Profes provisions of former Business language emphasized above. identical to that abrogate intent to clearly legislative indicated a to have sions Code section 11616 were found except that manner an offer of dedication right (expressly impliedly) to revoke 163, (1950) 169-170 Cal.App.2d (County Orange v. Cole prescribed by the statute. 448, 41]; 29 Cal.2d Construction Co. Stump P.2d see v. Cornell also then, language would seem 510].) explicit of such the absence By negative implication, Legislature If the reasoning applies here. intent. The same contrary legislative to indicate a have stated with compromise, it would an offer abrogate right intended to to revoke open.” remain to section 998 “shall made clarity that an offer unmistakable predecesor statutory compromise involved a 6Distefano 390, 113, by 1851, 5, repealed 998, by p. (Added § Stats. ch. former section 997. 1971, 1, compromise 1679, provided p. 3605.) offers of That section § Stats. ch. they only. were with were deemed to be withdrawn if defendants Such offers days. ten-day period. (Stats. five-day period ch. later extended to a in five This was 1679, 3, 3605-3606.) p. 626.) (Stats. pp. It ex Section ch. § 998 was enacted 1971. coverage compromise plaintiffs panded to include offers of former section 997’s ac if not now deemed withdrawn as well as defendants. Under section such offers are (Compare theory days. cepted remained the same. within statute City Albany v. Distefano, with Shain supra, 385 [§ 997] Rptr. App.3d Cal. 69] [§ Cal. 298-299 [165 7See footnote 6. (1983) Heritage
on the recent Court of Gallagher decision Appeal *7 contract 614], 546 argues general Cal.App.3d Cal.Rptr. petitioner law of offer and acceptance do not to the principles simply apply process offer under the a statutory statute. In the court held that Gallagher, “[o]nce cloaked is made and the the offeror is time for acceptance expired, [has] 550) with and the 998],” (id., at p. in protections provided [section 547-548.) (Id., not be at revoked a oral offer. by pp. subsequent conclusion, that “when an ac- reaching its the Court of stated Appeal 998], contract law has has not been to ceptance effected section [pursuant (Ibid.) no applicability.” no
The it felt contract law had Gallagher court did not state clearly why The contract law applicability. general court to have reasoned that appears does not under section 998 to the of offer and apply acceptance process “timeliness, because the offer and is set acceptance, manner and method of 550, forth in at fn. p. 144 (Gallagher, supra, Cal.App.3d [section 998].” omitted.) However, not Section 998 addresses this is reasoning persuasive. some, all, but not As process. of the offer and aspects noted, of section previously it the revocability has provision regarding (Ante, 998 offers. 277.) Nor it the effect of a subsequent does address p. offer on be an- statutory only a can offer. These prior statutory questions swered by of contract law. turning general principles court,
Unlike the other contract Gallagher general courts have applied law offers of For principles statutory example, compromise. Distefano 691], v. Hall 380, 263 defendants’ 385 Cal.Rptr. Cal.App.2d second statutory offer was held to have their first extinguished statutory in accord with the contract rule offer made general that a subsequent The Court of acceptance extinguishes Appeal offer.6 replaces prior 997[7] reasoned that “the that the of settlement theory process one, those compromise is contractual and the principles applicable 385.) relating (Id., contracts at general p. [citation].” And, 67, in Ward v. Court 69 Superior Cal.App.3d 501], a offer was held to revocation of a section 998 purported statutory compromise predecessor involved a offer of 6Distefano 390, 1851, 5, 113, section 998, (Added p. repealed by former section 997. Stats. ch. § Stats. 1971, ch. 1679, 1, 3605.) statutory offers of com p. provided That section § promise by they were not only. defendants were to be withdrawn if Such offers deemed (Stats. ten-day period. within days. five-day period five cxtended to a This was later 3, 1679, 626.) (Stats. ch. ch. p. § in 1971. Sectiofr99&4yasenacfed 3605-3606.) pp. coverage It expanded former to include section 997’s compromise by plaintiffs such offers are defendants. Under section a^well^as the statute days. theoryand deemed within 30 withdrawniffnot'accepted with Distefano, supra, remained at (Compare Cal.App.2d 997] the same [§ Shain v. City Albany (1980) Cal.App.3d 69] [§ 298-299 [165 7See footnote 6. to the offeree be ineffective because had not been communicated directly law. Distefano, as of contract required Citing well-established principles court offer of compromise] noted that “acceptance [of Court, (Ward Superior supra, the basic laws of contract.” governed by p. and Ward is Since section reasoning persuasive. Distefano involves the and since this process settlement and process compromise one, a contractual it is for contract law govern appropriate principles *8 There is reason to post- offer under section 998. acceptance process after offer has of contract law until an been pone application principles made and accepted.8 course,
Of should to contract law section general principles apply offers conflict with 998 where such neither acceptances only principles 263 Distefano, supra, Cal.App.2d the statute nor defeat its purpose. 384-385.) in numerous Court of deci- Appeal at As pp. recognized sions, the former clear of section 998 and its section purpose predecessor, (Shain to v. is of lawsuits trial. encourage City settlement 298-299; (1979) 106 Brown v. Nolan Albany, at supra, pp. Cal.App.3d of Hall, 469]; supra, 449 v. 263 Cal.Rptr. Cal.App.3d Distefano 385; Brown Cal.App.2d Cal.App.2d at Bennett v. p. best effectuates Both contend that their position parties that policy. that best an offer encouraged by allowing
Petitioner settlement is argues remain that an offeree has rea- for entire so statutory period its amount of time consider the offer. In support position, sonable in Lum Court Superior on the Court of decision relies petitioner Appeal Lum, the court held 599]. irrevocable that an offer to section 998 is compromise pursuant (Id., 956.) reasoned that a particular at The court p. period. if offeror were allowed to withdraw settlement would be defeated an (Id., seems to offer within the statutory argument period. settlements frustrated when be that the is encouraging legislative purpose offer is settlement based upon particular withdrawn because no longer possible. hand, contend that the policy encouraging
Real on other parties, offers that section 998 are holding settlements would frustrated irrevocable, real fewer offers will argue, parties If offers are irrevocable. Heritage, supra, Cal.App.3d 546 Gallagher v. any language in 8To the extent disapproved. opinion, inconsistent with this be made. there on which to base Accordingly, will be fewer offers Thus, settlements, settlement. real offers made promote argue, parties to section 998 must be revocable. Real are correct that the settlements policy encouraging is best revocable.9 A is more promoted by making 998 offers party likely make an offer if that knows that the section 998 party bemay revised if circumstances or new evidence change develops. he bound to Conversely, strictly who knows that or she is the terms party of the first offer made be reluctant to make such an offer for fear of locked being into a which unfavorable position discovery becomes upon of additional information. If a is more to make a likely revocable one, and less likely to make an more irrevocable then offers will be made, made if revocation is The more offers that are the more permitted. the chance likely Thus, for settlement. it is that the contract apparent general law principle revocable until serves rather than de feats the settlements. encouraging *9 effect on inhibitory offers which result if a rule of would irrevoca- bility were is adopted evident in cases testi- particularly involving expert statute, mony. By such testimony cannot be discovered until 50 days prior to trial. 2037 et A who made seq.) party already has an offer may discover new evidence from the offeree’s which indicates that the experts offeree be may more than the offeror first realized. In order to culpable avoid this problem, a party might not make an offer until all the expert evidence has been time, By discovered. well be too late for might to make a section 998 offer since such offers must be made at least Moreover, to days prior trial. it would make little sense to prohibit offeror from an offer which revoking was based on an under- incomplete of the standing relevant facts. To to make offers encourage parties pursuant to section and to ensure that those are based on as an complete understanding the facts as such offers must be revocable. possible, This court’s determination that section 998 offers are revocable also pro- motes public This policy compensating injured would parties. policy be frustrated if noted, section 998 offers were irrevocable. As previously newly discovered evidence indicate that a certain defendant more or may is less than culpable It indicate a originally thought. also might is more than seriously injured from the initial evidence. Under appeared circumstances, such an offer made to the of the additional discovery evidence might be longer If the adequate fairly compensate plaintiff. Court, 9To the extent Superior supra, that Lum 952 is inconsistent opinion, with this disapproved. it is irrevocable, offer is an would be bound to an injured party-offeror However, if bemay which will not him or her the offer compensate fairly. revoked, newly can offer in light the offeror either new propose in an trial all the evidence discovered evidence proceed present Thus, to be the trier of fact’s decision. attempt compensated fairly by best served if section 998 policy injured party public compensating offers are revocable. created option that an irrevocable
Alternatively, contends petitioner when an Petitioner asserts that con- offer is section 998. That sideration for this is conferred the statute itself. irrevocable option is, he to which or she would statute confers benefit on offeror more be in the event the offeree fails obtain a ordinarily entitled—costs And, favorable if the offeree offer and fails accept fails judgment. obtain a he or she faced with a det- more favorable judgment, potential would not ordinarily of costs for which offeree riment—payment addition, necessary that the consent responsible. argues petitioner creation in the fact that the offeror of an irrevocable found option made an offer to the statute. lacks
Petitioner’s irrevocable contract is created argument that an option ir- merit. Mutual consent—a to the existence the purported prerequisite revocable contract—is absent. option
“It that an is a contract universally agreement is option relates, bind it does not distinct from the contract to which the since option the the to into the terms optionee upon specified or enter contract perform 766, (1948) (Warner in the Pictures v. Brodel 31 Cal.2d Bros. option.” However, 949, 691], added.) 771-772 italics A.L.R.2d Code, (Civ. mutual a contract to exist parties consent is essential for “[cjonsent mutual, 1565), agree not unless the all parties is §§ Code, 1580.) “The (Civ. the same sense. upon thing the same ...” rather subjective existence of mutual determined than by objective consent is criteria, would the outward manifestations consent test what the being Accordingly, lead a the primary reasonable to believe. person [Citation.] is the acts of upon focus in of mutual consent determining existence Benko 942-943 (Meyer involved.” parties case, that the offer was never parties agreed the present to contract. an irrevocable consenting option irrevocable or that were they was was indication that the offer When made there real the offer parties irrevocable. made
Petitioner’s consent is because real argument—that parties present an offer to the statute pursuant Nothing implies statute—is flawed. ante, that 277.) is irrevocable. p. notifies a
Consequently, there is in the statute which nothing his or her offer an offer will be he or she decide to make irrevocable should Thus, to have pursuant statute.10 real cannot be held consented to the creation of an make an offer choosing irrevocable to option by simply to section pursuant 998.11
Real an section parties made offer to 998. compromise pursuant statute, This offer was not made an irrev irrevocable itself. Nor was ocable option contract Since real revoked their created. parties properly prior any not thereafter acceptance,12 could petitioner accept offer.13
III. It ais well-established offers may contract law that be revoked principle acceptance. Section settlements is encouraging 998’s best promoted when this fundamental contract is offers principle applied that section. The did for Legislature not expressly provide irrevocability offers nor did it limit the applicability of contract law to that section. This court imply will 10Since matter, there is nothing in the which party—or, statute for that notifies person—that irrevocable, reasonable an offer made to the statute is the dissent’s “[ujnder contracts, belief that objective theory parties] must be deemed to have [real intended that the offer of statutory period” settlement would be untenable. (See post, p. “ consideration, It well established that option irrevocable contract made for ‘[a]n ” keep an (Palo Country offer open prescribed period.’ Village, for a Alto Town & Inc. Company v. BBTC 11 Cal.3d 499-500 521 P.2d 1097] Witkin, quoting Summary (8th omitted.) 1973) p. Cal. Law ed. italics dissent believes that the provides necessary option statute con- the consideration for an irrevocable (See post, 289.) However, consideration, tract. assuming even there was no there was agreement “to *11 keep agree offer did open prescribed period.” for The not to keep open. the open days, offer The statute does not state remain for 30 that the offer will anything nor does imply irrevocability. agreement in the keep statute Since there was no to offer prescribed period, option. there was no irrevocable consent, 11Since the “irrevocable option” fails for lack of this court need not mutual petitioner’s address by contention that supplied consideration is the statute. parties’ 12Real they letter August petitioner stating revoking of to were their 10th requirements (Civ. Code, 1.) offer satisfied the for an effective revocation. subd. § statute, argues 13Thedissent holding, wording this combined with the literal offers, permit them, will parties to gain make revoke and the cost benefits of nevertheless However, post, 285.) statute. simply be that anomalous result can avoided giving the word “offer” a apparent sensible construction. It should be that an offer that is prior acceptance revoked to longer purposes functions an “offer” for the cost benefit as ante, provisions. (See (c), (d); subds. fn. and public in face of well contract law principles irrevocable established contrary. policies for a writ writ and the discharged, petition peremptory alternative is
of mandate is denied.
Mosk, J., J., Poliak, J.,* J., Kaus, concurred. and Reynoso, BROUSSARD, J. dissent. I consid- historical of Code of Civil Procedure language
erations, the conclusion and require sound authority, public policy prior may and be to the code section irrevocable that offers the terms of statute. until deemed withdrawn under accepted (b) days than 10 to prior “Not less Section subdivision provides: 1 of Section any as defined in subdivision commencement of trial to the action to serve an in other may writing any party upon and conditions be in with the terms allow taken accordance judgment with If such offer is the offer proof accept- stated that time. accepted, enter accord- judgment shall be filed and the clerk or the shall judge ance days or within 30 after it If offer is not trial prior such ingly. accepted withdrawn, made, first, and cannot is be deemed whichever occurs shall be in evidence the trial.” upon given defendant that if an offer made provisions
Other the section state judgment, fails obtain a more favorable and not and the accepted costs, defendant’s costs will be denied shall recovery pay the plaintiff of defendant’s all may pay the time of the be compelled from costs, is not accepted costs. If including plaintiff’s witness expert defendant fails a more favorable judgment, defendant to secure witness costs.* pay expert required *Assigned by Chairperson of Council. the Judicial 1032 shall be “(a) Sections 1031 and provides: The costs allowed under 1Section 998 augmented provided as in this section. withheld or “(b) days the trial as defined subdivision prior Not to commencement of less than party to the action writing upon other any party may serve an offer in of Section at that conditions stated with the terms and judgment to allow taken accordance filed and clerk accepted, with shall be proof If such offer the offer time. to trial or judgment accordingly. If such offer judge or the enter shall withdrawn, first, made, deemed it shall be days it is whichever occurs within after trial. given upon cannot be evidence *12 to obtain a more “(c) by accepted plaintiff and the fails If an a defendant is not offer made pay the defendant’s costs and shall judgment, plaintiff the not recover his favorable shall addition, than proceeding other an in action or from of the In costs the time offer. discretion, court, pay action, may plaintiff the the require the in its eminent domain statutes, the of the Legislature courts should ascertain intent construing the so as to effectuate the of law. In so court looks first doing the of (Martinez words the statute. v. Traubner Cal.3d 1046]; Moyer Appeals v. Workmen’s Comp. Bd. 514 P.2d Al Cal.3d the that the offer made though pursuant does not language expressly provide revoked, to the section not be this is the of the may contemplation clearly of the an is made provisions statute. The statute once offer provides to the statute there are two alternatives. If the offer is a accepted, is to judgment If the offer is within the statutory entered. not accepted the period, offeror is to an to obtain the cost benefits opportunity entitled set in the forth statute. conclude, do,
To the as that an offer be revoked so as to majority may preclude within the either a wholesale requires period result, of the code or rewriting section an anomalous an permits providing opportunity “offer” in the chicanery. may word as used not offer, read as a revocable would meaning reading because such produce an anomalous (c) result. For the if word “offer” subdivision example, read as revocable the subdivision would “If provide: [a revocable] offer made aby defendant is not the accepted and fails obtain a plaintiff more favorable judgment, the shall recover his plaintiff costs shall the pay defendant’s costs the of the from time the offer. ...” Under literal wording provision, the defendant would be entitled to an opportunity obtain cost benefits even he revokes offer before his though accept- ance. The defendant could obtain the benefits the section an by making offer and it a revoking few hours later obviously acceptance, anomalous result which could not have by Legislature. been intended To avoid the anomalous result while conclusion that reaching majority section, offer is revocable to add a necessary third alternative that if an offer providing is revoked within the in the statute described period filing defendant’s costs from the date the complaint and a reasonable sum to cover witnesses, costs of the of expert regular employees any party, services who are not both, actually either, reasonably necessary incurred and preparation or trial of or by case the defendant. “(d) by plaintiff If an is not and the defendant fails to obtain a more judgment, favorable require pay court in discretion the defendant to a reasonable its witnesses, sum to cover expert regular employees costs of services of who are not both, any party, actually either, reasonably incurred necessary preparation or trial plaintiff, plaintiff’s of the case in addition to costs. “(e) section; expert Police purposes officers shall be deemed to be for the of this witnesses plaintiff cross-complainant Any includes a judg- and defendant includes a cross-defendant. ment entered to this be a compromise section shall be deemed to settlement. “(f) provisions apply chapter this shall not to an which made in an eminent domain action. (c) “(g) (d) expert The costs for services of witnesses for trial under subdivisions specified shall not exceed those in Section 68092.5 of the Government Code.” *13 cost benefits obtain the the offeror will not be entitled to an opportunity set forth in the statute. that is revoked that “an offer
To avoid the conclude anomaly, majority the cost for of functions as an ‘offer’ purposes acceptance longer ante, 13.) that the first (See 283, The result is benefit fn. provisions.” p. ordinary meaning, four it is its given times “offer” is used section 998 meaning, the fifth time the ordinary time a the sixth special meaning, 1.) time well settled that the seventh fn. “It is special meaning. when meaning appears word or should be the same scope phrase given 375, 30 Cal.3d Mirmirani of a statute.” v. separate parts (People rule is 792, 1130].) While the settled fn. 6 636 P.2d intent provide not inflexible and will where the legislative applied (1981) 30 Cal.3d different is clear meanings (People Hernandez that the do not claim 706]), the majority 637 P.2d the language that contrary argue intent is clear but to the legislative (Ante, 278.) code section is unclear. at p. also days after
The “deemed withdrawn” that the offer is provision If shows that offers under the statute are irrevocable. the of-
irrevocable there termination—otherwise is reason for automatic reason However, no appears fer would remain substantial indefinitely. open the obvious purpose for the cutoff if the offer revocable. that Considering served, best be settlements, would the statute is to promote chose to revocable, if until the offeror offers are the offer by leaving set it, 30-day period be in excess of the revoke which often period might forth in the statute. to obtain for an opportunity section 998 predecessor providing (Stats. in 1851. was first enacted
costs on the basis of a settlement offer
the same as
substantially
ch.
The section was
§
from the
Procedure,
which was derived
New York Code of
Proc.,
Code
(First
Pleadings,
on Prac. &
Field Code
to the Com.
Rep.
ten
for
days
allowed
(1848))
the New York provision
except
five.
allowed
while the California
acceptance,
provision
offers by
drafted,
only
applied
As
the California
originally
provision
the offer was
which
defendant,
beyond
set a
five-day
period
clerk.
withdrawn,
entry
judgment
deemed
and provided
to compromise
that the
New York courts
established
early
allows the
that the code expressly
was not revocable. The cases reasoned
represents
the code provision
to consider the
days
contract,
to compromise
that the offer
than a
rather
regulation
procedure
an opportunity
in the form of
is in the nature of an
with consideration
option
revocation
costs,
that,
permit
were construed
to avoid
if the statute
(Pom-
chicane.”
offers,
“of trifling
it would become an instrument
*14
162-163;
161,
(1853)
Johnson
v. Hulin
How.
Walker v.
eroy
(1852) 7
Pr.
111;
240, 241;
(1877) 10
McVicar
8 How. Pr.
Herman v.
Hun.
v.
Lyons
(1897)
581,
298]; Hackett v. Ed
Keating
19
582
N.Y.Supp.
App.Div.
[46
wards,
659,
609].)
(1898)
Merrill &
22
660
N.Y.Supp.
Co.
Misc.
[49
earlier New York
were cited
in Scammon v. Denio
cases
with approval
393,
72
that
(1887)
Cal.
P.
where the court stated
plaintiff
396-397 [14
98]
Procedure,
shall have five
the
Federal
of Civil
days to consider
offer.
Rules
(28 U.S.C.)
rule 68
has
been
to
offers to com
also
construed
that
provide
(See Udall,
are
Under Rule
May
irrevocable.
Offers of
promise
Judgment
401;
68 Be Revoked
see also Mubi
(1959)
Before
19 F.R.D.
Acceptance?
700, 702].)
(1972)
v.
Consideration of the view legislative also the that offers supports purpose made pursuant to the irrevocable. “The of this section is to the encourage (Distefano settlement of without Hall litigation trial. (1968) 263 385 effect is to Cal.App.2d Cal.Rptr. Its punish [69 ” the plaintiff who fails a accept reasonable offer from defendant. (Brown v. Nolan 469]; 98 Pi- Cal.App.3d Cal.Rptr. [159 Club, neda v. Los Angeles Inc. Cal.App.3d Turf 66]; Cal.Rptr. Shain v. City (1980) 106 Albany Cal.App.3d 69].) When, case, inas the instant the makes an section, offer under the the effect of the statute the is to defendant punish who fails to accept reasonable offer.
isIt that apparent if offeror is revoke the within the permitted time statutory and before acceptance, settlement will be defeated. The settlement period established is short and Legislature provides offeree a reasonable If cogitate and make a decision. the offer is period to be time permitted revoked before an has consider and adequate passed offer, respond legislative settlements policy encouraging frustrated.
The statute does not settle but require party litigation offer to gives that on option specified terms benefits for provides potential By offeror. the offeror must the burdens of the making accept offer with its benefits. (1983) the court in Lum v. Court Superior
For these reasons concluded that offers made 599] We should follow are irrevocable for period. to section 998 Lum. will furthered urge by permitting settlement majority because, they revoke knowing offers to revoked *15 However,
offers, is approach offers to settle. the will make more parties A offer making statutory unrealistic. contemplating and conjectural party case, in which even be aware that the other the offer party may accept must view, If the late to withdraw. under the would too majority it, make and he is not going afraid that he will be locked in to his significantly encourage I not believe that the offer revocable will making do case, as occurs in this Rather revocability, offers increase settlements. will frustrate would-be settlements. injured
The also that the majority urge policy compensating It is that offer revocable. promoted statutory apparent by holding have majority because the today’s majority holding not served policy by will go that injured plaintiffs settlement with upset possibility will be injured plaintiffs after trial. Settlements assure that uncompensated I will increase voiding fail to see how settlements compensated, at no doubt will lose trial. number when some compensated plaintiffs that general The that contract law should control and majority reason view acceptance. my that be revoked may prior contract rule is out law As above pointed it is immaterial whether contract applies. considerations, statute, and sound authority, historical language prior for the short that irrevocable public policy require if that contract law But even we assume established the statute. period reach the same result. should we would apply, time may true as a rule an offeror revoke It is that general of consideration the absence the communication of re that the offer will his notwithstanding promise the offeror revoke (Thomas Cal. 489 Birch for a v. main time. open specified 265, 267 1102]; [19 P. Bellasi v. [173 Shackelford Contracts, 1973) ed. Witkin, (8th Law 925]; Cal. Summary Cal.Rptr. However, exception an well-settled there is equally Country Alto & Palo Town for (E.g., rule for consideration. general options 494, 502-503 (1974) 11 Cal.3d Inc. v. BBTC Village, Company 310, 315 43 Cal.2d 1097]; Goff (1954) Dawson v. P.2d (1948) 31 Cal.2d Brodel 1]; Warner Bros. Pictures v. seq. et Witkin, 691]; supra, 3 A.L.R.2d 772-773 122, 126-128, 122, 124-126.) The the instant case consideration pp. §§ for is conferred making irrevocable offer period benefit, the offer the offeror obtains a name- making the statute itself—by in the favorable ly, judgment. costs event the offeree fails to obtain a more 702; McVicar Mubi v. 492 P.2d Broomfield, Keating, supra, 581, 582.) supra, App.Div. do majority there is sufficient consideration. Rather dispute is that there is no irrevocable because majority position assertedly option
there is lack of in that made the they mutual assent when plaintiffs However, did not know that the offer this analysis was irrevocable. ignores that the the facts offer is made to a statute and that the statute sets forth the term of the offer.
California follows the objective theory mutual assent. terms of the *16 established, agreement ordinarily undisclosed intentions of but or conduct promisor, by words under- justifying promisee intended to make a Horacek standing promisor (E.g., v. Smith promise. (1948) 33 Cal.2d 929].) P.2d Any 193-194 is bound even if he misunderstood the terms a contract had a actually different (Blumenfeld undisclosed &Macy intention. v. R. H. Co. 38, 46 The construction the contract reasonable, be one that Code,
must will (Civ. make it and lawful operative 1643, 3541), the bemay contract references to the circum- explained by §§ under (Civ. Code, Proc., stances which it was made Code Civ. § 1860), and all laws applicable § existence become thereof as part fully (Mulder as if incorporated reference v. Casho 61 Cal.2d 545]; Witkin, 452). supra, Plaintiffs could have made a settlement regard offer without the statute. chose, however, They statute; to make their offer under the their obvious was to secure the benefit cost As statute. provisions seen, we have to obtain those benefits the offer had to be left open for the statutory period. in the Implied agreement was the provision would at the deemed withdrawn or commencement days trial, contracts, whichever occurs Under the theory first. objective must be plaintiffs deemed to have intended that the offer settlement would for the or until because in this period only acceptance manner could full they obtain the benefits of offer. To conclude their did not plaintiffs intend that the offer would run for full statutory period is to attribute a secret which been intention has never even asserted.
In the absence of consideration could have revoked their plaintiffs how matter it would remain long they stated expressly impliedly open. seen,
But, consideration, should not be as we have there was and plaintiffs their to claim lack or to in view of of mutual assent revoke implied permitted representation. court superior
I Would issue a writ of mandate directing peremptory motion its order to enter grant to vacate striking in accordance with the offer. judgment J.,* concurred.
Mayer,
*Assigned by Chairperson of the Judicial Council.