AB 1254, as introduced, Gorell. Civil actions: settlement offers.
Existing law governs offers by a party to compromise a dispute that is to be resolved by trial or arbitration. Existing law provides that not less than 10 days prior to commencement of trial or arbitration of a dispute to be resolved by arbitration, 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. Existing law sets forth the requirements for the written offer and for the acceptance of the offer.
This bill would make technical, nonsubstantive changes to these provisions of law.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 998 of the Code of Civil Procedure is
2amended to read:
(a) The costs allowed under Sections 1031 and 1032 shall
4be withheld or augmented as provided in this section.
P2 1(b) begin deleteNot less than end deletebegin insertWithin end insert10 days prior to commencement of trial
2or arbitrationbegin delete (asend deletebegin insert,end insert provided in Section 1281 orbegin delete 1295)end deletebegin insert
1295,end insert
of a
3dispute to be resolved by arbitration, any party may serve an offer
4in writing upon any other party to the action to allow judgment to
5be taken or an award to be entered in accordance with the terms
6and conditions stated at that time. The written offer shall include
7a statement of the offer, containing the terms and conditions of the
8judgment or award, and a provision that allows the accepting party
9to indicate acceptance of the offer by signing a statement that the
10offer is accepted. Any acceptance of the offer, whether made on
11the document containing the offer or on a separate document of
12acceptance, shall be in writing and shall be signed by counsel for
13the accepting party or, if not represented by counsel, by the
14accepting party.
15(1) If the offer is accepted, the offer with proof of acceptance
16shall be filed and the clerk or the judge shall enter judgment
17accordingly. In the case of an arbitration, the offer with proof of
18
acceptance shall be filed with the arbitrator or arbitrators who shall
19promptly render an award accordingly.
20(2) If the offer is not accepted prior to trial or arbitration or
21within 30 days after it is made, whichever occurs first, it shall be
22deemed withdrawn, and cannot be given in evidence upon the trial
23or arbitration.
24(3) For purposes of this subdivision, a trial or arbitration shall
25be deemed to be actually commenced at the beginning of the
26opening statement of the plaintiff or counsel, and if there is no
27opening statement, then at the time of the administering of the oath
28or affirmation to the first witness, or the introduction of any
29evidence.
30(c) (1) If an offer made by a defendant is not accepted and the
31plaintiff fails to obtain a more favorable judgment or award, the
32plaintiff shall
not recover his or her postoffer costs and shall pay
33the defendant’s costs from the time of the offer. In addition, in any
34action or proceeding other than an eminent domain action, the
35court or arbitrator, in its discretion, may require the plaintiff to
36pay a reasonable sum to cover costs of the services of expert
37witnesses, who are not regular employees of any party, actually
38incurred and reasonably necessary in either, or both, preparation
39for trial or arbitration, or during trial or arbitration, of the case by
40the defendant.
P3 1(2) (A) In determining whether the plaintiff obtains a more
2favorable judgment, the court or arbitrator shall exclude the
3postoffer costs.
4(B) It is the intent of the Legislature in enacting subparagraph
5(A) to supersede the holding in Encinitas Plaza Real v. Knight,
6209 Cal.App.3d 996, that attorney’s fees awarded to the prevailing
7
party were not costs for purposes of this section but were part of
8the judgment.
9(d) If an offer made by a plaintiff is not accepted and the
10defendant fails to obtain a more favorable judgment or award in
11any action or proceeding other than an eminent domain action, the
12court or arbitrator, in its discretion, may require the defendant to
13pay a reasonable sum to cover postoffer costs of the services of
14expert witnesses, who are not regular employees of any party,
15actually incurred and reasonably necessary in either, or both,
16preparation for trial or arbitration, or during trial or arbitration, of
17the case by the plaintiff, in addition to plaintiff’s costs.
18(e) If an offer made by a defendant is not accepted and the
19plaintiff fails to obtain a more favorable judgment or award, the
20costs under this section, from the time of the offer, shall be
21deducted from any damages awarded in
favor of the plaintiff. If
22the costs awarded under this section exceed the amount of the
23damages awarded to the plaintiff the net amount shall be awarded
24to the defendant and judgment or award shall be entered
25accordingly.
26(f) Police officers shall be deemed to be expert witnesses for
27the purposes of this section. For purposes of this section, “plaintiff”
28includes a cross-complainant and “defendant” includes a
29cross-defendant. Any judgment or award entered pursuant to this
30section shall be deemed to be a compromise settlement.
31(g) This chapter does not apply to either of the following:
32(1) An offer that is made by a plaintiff in an eminent domain
33action.
34(2) Any enforcement action brought in the name of the people
35of the State of California by the
Attorney General, a district
36attorney, or a city attorney, acting as a public prosecutor.
37(h) The costs for services of expert witnesses for trial under
38subdivisions (c) and (d) shall not exceed those specified in Section
3968092.5 of the Government Code.
P4 1(i) This section shall not apply to labor arbitrations filed pursuant
2to memoranda of understanding under the Ralph C. Dills Act
3(Chapter 10.3 (commencing with Section 3512) of Division 4 of
4Title 1 of the Government Code).
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