Offer to Compromise

Expert witness fees award pursuant to offer to compromise is improper because offer was not valid under statute due to lack of provision for acceptance. Antonio Puerta v. Anna Berta Torres, (No. G043745 California Courts of Appeal, Fourth Appellate District, Division Three, May 25, 2011).

This case involves a offer to compromise pursuant to California Code of Procedure Section 998 where it was claimed that the offer did not include a provision for acceptance.  The trial court determined that the offer was sufficient and awarded the defendant attorney’s fees.

The appeals court reversed in part.  It found that the offer by the defendant did not have a provision regarding acceptance as specifically set forth under the statute.

 A section 998 offer shall include a statement of the offer and must include a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.  Here, the offer only included the terms of the offer and the expiration date, by nothing about a provision stating that the plaintiff can accept the offer.  The offer was therefore found invalid regardless of whether the plaintiff even intended to accept the offer or not.  The appeals court found that the trial court had erred in awarding the defendant expert witness fees.

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