BILL NUMBER: AB 1254 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Gorell
FEBRUARY 22, 2013
An act to amend Section 998 of the Code of Civil Procedure,
relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
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 1. Section 998 of the Code of Civil Procedure is amended
to read:
998. (a) The costs allowed under Sections 1031 and 1032 shall be
withheld or augmented as provided in this section.
(b) Not less than Within 10 days
prior to commencement of trial or arbitration (as
, provided in Section 1281 or 1295)
1295, 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. The
written offer shall include a statement of the offer, containing the
terms and conditions of the judgment or award, and a provision that
allows the accepting party to indicate acceptance of the offer by
signing a statement that the offer is accepted. Any acceptance of the
offer, whether made on the document containing the offer or on a
separate document of acceptance, shall be in writing and shall be
signed by counsel for the accepting party or, if not represented by
counsel, by the accepting party.
(1) If the offer is accepted, the offer with proof of acceptance
shall be filed and the clerk or the judge shall enter judgment
accordingly. In the case of an arbitration, the offer with proof of
acceptance shall be filed with the arbitrator or arbitrators who
shall promptly render an award accordingly.
(2) If the offer is not accepted prior to trial or arbitration or
within 30 days after it is made, whichever occurs first, it shall be
deemed withdrawn, and cannot be given in evidence upon the trial or
arbitration.
(3) For purposes of this subdivision, a trial or arbitration shall
be deemed to be actually commenced at the beginning of the opening
statement of the plaintiff or counsel, and if there is no opening
statement, then at the time of the administering of the oath or
affirmation to the first witness, or the introduction of any
evidence.
(c) (1) 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.
(2) (A) In determining whether the plaintiff obtains a more
favorable judgment, the court or arbitrator shall exclude the
postoffer costs.
(B) It is the intent of the Legislature in enacting subparagraph
(A) to supersede the holding in Encinitas Plaza Real v. Knight, 209
Cal.App.3d 996, that attorney's fees awarded to the prevailing party
were not costs for purposes of this section but were part of the
judgment.
(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 other than an eminent domain action, 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.
(e) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
costs under this section, from the time of the offer, shall be
deducted from any damages awarded in favor of the plaintiff. If the
costs awarded under this section exceed the amount of the damages
awarded to the plaintiff the net amount shall be awarded to the
defendant and judgment or award shall be entered accordingly.
(f) Police officers shall be deemed to be expert witnesses for the
purposes of this section. For purposes of this section, "plaintiff"
includes a cross-complainant and "defendant" includes a
cross-defendant. Any judgment or award entered pursuant to this
section shall be deemed to be a compromise settlement.
(g) This chapter does not apply to either of the following:
(1) An offer that is made by a plaintiff in an eminent domain
action.
(2) Any enforcement action brought in the name of the people of
the State of California by the Attorney General, a district attorney,
or a city attorney, acting as a public prosecutor.
(h) The costs for services of expert witnesses for trial under
subdivisions (c) and (d) shall not exceed those specified in Section
68092.5 of the Government Code.
(i) This section shall not apply to labor arbitrations filed
pursuant to memoranda of understanding under the Ralph C. Dills Act
(Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1
of the Government Code).