Legal News and Appellate Tips

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:

• The different approaches taken by personal injury attorneys, from “billboard attorneys” to settlement mills to big-dollar jury trials, and in between.

• How has California’s MICRA cap on medical-injury cases affected victims’ ability to get justice?

• What is the Gerry Spence College like?

• Nursing-home injuries and the changing needs in that space.

CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here: http://bit.ly/3gCdu6B

The article covers *Trujillo v. City of Los Angeles* (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

I note several odd things about the decision and the reasoning, including why the court drew the line at oral rulings on summary judgment, but would allow a plaintiff to accept a 998 offer after a tentative ruling.

And as covered on episode 61 of the California Appellate Law Podcast, cases interpreting FRCP 68, the federal analog to section 998, have come out the opposite way.

“CEB has published” Tim Kowal, “Something You Didn't Know About 998 Offers,” CEB (Apr. 30, 2021), available at  http://bit.ly/3AbqAhI Plaintiff can still recover post-offer fees even if Plaintiff does not […]

There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

The set-up is pretty simple: The City was defending against a claim that it negligently maintained a cracked sidewalk that caused Trujillo to trip during a late-night jog. The City filed a motion for summary judgment. Then just a few days before the hearing, the City served a section 998 offer.

At the hearing, the trial court orally granted the City’s motion for summary judgment. Four minutes later, Trujillo accepted the 998 offer, and then immediately filed the executed 998 offer.

The trial court rejected the 998 acceptance. And so did the Court of Appeal. The court held that “a still-pending 998 offer expires when a trial court orally grants summary judgment.”

I count several odd things:

1. You are supposed to get 30 days to accept a 998, but here, the court only would have given the plaintiff “a few days.”

2. The court reasoned that a 998 offer only stay in effect so long as there remains a “dispute to be resolved,” but that is not actually what the statute says.

3. What about tentative rulings? The opinion suggests a litigant may still accept a 998 offer after a tentative so long as it’s before the oral ruling.

4. Why didn’t the court accept the argument that an MSJ hearing is akin to the “commencement of trial,” and thus the 998 offer filed less than 10 days before that time was never valid in the first place?

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in *[Duff v. Jaguar Land Rover North America, LLC](https://bit.ly/3Gspq1B)* (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said *no*.

But the Court of Appeal held that the CCP 1032 “net monetary recovery” standard does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated because the defendant's 998 offer did not include a signature line for the plaintiff to sign, even though the plaintiff signed it anyway. In a case of first impression, the Second District affirmed, holding a judgment may not be entered on a section 998 agreement in which the offer does not provide an acceptance provision.

I find this a very bizarre case. I would not be surprised if other District Courts of Appeal declined to follow it.

It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer.  In Regueiro v. FCA US, LLC (2d Dist., Div. […]

If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim […]

Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up […]

If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick...