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§998 Offer Contemplates Entry of Judgment Unless It’s Specified to Contrary—C.A.
By a MetNews Staff Writer
A defendant’s statutory offer to compromise a claim necessarily entails the entry of a judgment against it unless the offer spells out that the litigation will end simply with a payment to plaintiffs and a signing of a general release, the Third District Court of Appeal said in an opinion that was certified for publication yesterday.
The opinion, filed April 30, reverses an order by Butte Superior Court Judge Tamara L. Mosbarger vacating a judgment against automaker BMW in a wrongful death case. It paid the plaintiffs, Antonio Arriagarazo and Alicia Rodriguez de Arriaga, $15,000 and secured a general release from them.
The offer said nothing about a judgment.
A judgment was nonetheless properly entered, and improperly scrapped, Justice Peter A. Krause said in the opinion.
Wording of Section
He pointed out that Code of Civil Procedure §998 provides that a nonetheless party to a civil action “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” and that where there is an acceptance, “the clerk or the judge shall enter judgment accordingly.” Nonetheless, Krause noted, case law establishes that a §998 offer is not invalidated where it calls for a dismissal with prejudice rather than a judgment.
In the present case, neither a judgment nor a dismissal was mentioned in the offer—only a general release.
He wrote:
“…BMW cites no authority that would require us to treat ‘general release’ as a technical term that would indicate that appellants would have been required to execute a dismissal rather than allow judgment to be entered.”
Duty of Drafter
The jurist went on to say:
“As the drafter, BMW had the duty to make clear in its section 998 offer any intention to stray from the usual path under section 998 of entry of judgment….If BMW had wished to deviate from the standard procedural result of section 998, it could have proposed a general release coupled with a dismissal or otherwise stated clearly in the offer that dismissal was required….
“Given that appellants unconditionally accepted the section 998 offer as written, we are not persuaded that BMW’s e-mailed ‘clarifications’ should alter the result.”
He said that Mosbarger, in proclaiming that the offer did not contemplate entry of a judgment against BMW, abused her discretion “and modified the offer’s terms.”
The case is Arriagarazo v. BMW of North America, LLC, C090980.
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