Of multiple CCP 998 offers, which one controls? Meehan v. Aguirre

A few weeks ago, I blogged about CCP 998 offers. See that post at Is a CCP 998 Offer with two options automatically invalid? Gorobets v. Jaguar Land Rover North America, LLC.

Really, I blog quite a bit about 998 offers (posted on previous firm websites), as these offers can be smart and powerful. I’ll defer on posting what 998 offers are here, and instead just note if you overcome your 998 to your opposition, you may be able to recover expert costs and interest at 10%.

Litigation and trial work is the art of chess, where you must think many, many steps ahead of your opposition. And 998 offers can be a big part (and move) of this chess match.

Well, what happens if you serve multiple 998 offers to settle? Which 998 offer controls? Is it the first one, the last one, or any of them in the middle?

The Court of Appeal, Second Appellate Decision recently decided Meehan v. Aguirre which directly addressed this issue (in analyzing prior similar decisions.

What happened in Meehan?

Plaintiff served four 998 offers on Defense:

-          August 2021 for $1,000,000

-          March 2022, for $1,000,000

-          March 6, 2023, for $1,000,000

-          April 27, 2023 for $2,000.000

Plaintiff earned a Plaintiff Verdict, and sought costs for that win. The total judgement after costs was $1,415,974.93. So, shy of Plaintiff’s last $2,000,000 CCP 998 offer.

Plaintiff still sought costs as if plaintiff did overcome their initial 998 offers for one million.

The issue and analysis here:

So we're back to the issue at hand. As the Court here states it: “One of the questions that courts have had to answer without guidance from the plain language of the statute is how to treat successive section 998 offers when not all offers are exceeded by the judgment.”

California courts have previously held a “later offer generally extinguishes earlier section 998 offers, and it is the later offer that must be compared against the judgment.” And “the last such offer is the only operative offer with respect to the statutory benefits and burdens.”

The court here agrees with and adopts those previous court decisions, in saying this:

“We again adopt this rule and hold that where a plaintiff makes multiple valid and unrevoked section 998 offers, and their award is less favorable than their final offer, it is this last offer that controls for purposes of determining any entitlement to section 998 benefits.”

There also was some discussion about whether a plaintiff can recover costs for a Day in the Life video used at trial. The court here declined to grant those costs as well. Perhaps another blog topic in the future…