Opinion
NOT TO BE PUBLISHED
Superior Court County, No. 56-2009-00341702-CU-PA-VTA of Ventura, Frederick Bysshe, Judge.
Peyman & Rahnama, Pejman Rahnama; Diane B. Weissburg for Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Respondent.
PERREN, J.
Bella Gardenias appeals from an order granting respondent Lori Candreva's motion to enforce a Code of Civil Procedure section 998 settlement. We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Facts and Procedural History
Gardenias was injured on February 19, 2008, when her car was struck by one driven by Candreva. Gardenias filed a complaint for damages for personal injury on April 6, 2009. Discovery was initiated and an arbitration hearing was scheduled for January 20, 2010.
On October 30, 2009, Gardenias' attorney, Pejman Rahnama, served Candreva's attorney with a statutory offer of settlement pursuant to section 998. Gardenias offered to settle the case for $15,000 and a mutual release of all claims, with each side bearing its own attorney fees and costs. On November 30, 2009, Paul Orszag, an attorney in the firm representing Candreva, contacted Gardenias' attorney and spoke to Rahnama's partner, Ramin Peyman, orally accepting the offer. The same day, Orszag sent a written acceptance of the offer by facsimile and first class mail to Peyman.
On December 2, 2009, Peyman sent a letter by facsimile to Mark Kaufman, another attorney representing Candreva, stating: "After discussing the matter with our client, it has been decided that she will 'respectfully' withdrawal [sic] her 'Offer to Compromise' given that counsel, while in settlement negotiations has been very adamant about the need for an Independent Medical Exam ('IME'). Therefore, given your client's insistence on an IME and the paramount [sic] scheduling of that exam (served November 20, 2009), our client wishes to continue the litigation process as was previously scheduled."
At no time was any declaration or affidavit disavowing the settlement and signed by Gardenias submitted to the court.
Kaufman sent a letter to Rahnama the same day stating that the offer to compromise could not be withdrawn after being accepted. On December 4, 2009, Ken Youngman, a paralegal in the firm of Peyman & Rahnama, sent a "meet and confer" letter to Kaufman, stating that the offer was withdrawn because Gardenias needed an operation and the cost would exceed the amount of the settlement offer.
Gardenias' motion to "Vacate and Relieve Plaintiff" from the 998 settlement offer was filed March 23, 2010. Attached as exhibits thereto are the medical reports of Dr. Capen dated May 29, and July 31, 2008. These reports detail the scope and extent of Gardenias' injuries.
On December 22, 2009, Candreva filed a motion for order enforcing the section 998 settlement. Gardenias opposed the motion arguing that the specific terms of the offer were not unequivocally accepted and that the motion procedure did not comply with section 998. No declarations were submitted with the opposition. The trial court granted the motion on January 26, 2010. An order was entered on February 5, 2010, ordering Gardenias "to execute a release per the terms of her Code of Civil Procedure section 998 offer to compromise. Further, pursuant to the terms of plaintiff's Code of Civil Procedure section 998 offer to compromise, the action of plaintiff Bella Gardenias is hereby dismissed with prejudice upon full compliance with the sec[tion] 998... offer." Gardenias filed a notice of appeal from the order on April 2, 2010.
DISCUSSION
Section 998 Standard of Review
We review de novo the trial court's determination of the validity of a section 998 compromise. (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130; Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 329.)
Statutory Framework
Under section 998, a party may make a formal written offer to allow judgment or an award to be entered in accordance with terms specified by the party. A party who refuses to accept the offer and then fails to achieve a more favorable award at trial is subject to specified cost-shifting penalties. This statutory procedure for compromise of an action reflects the state's policy of encouraging settlements. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270.)
Section 998 provides in part: "(b) Not less than 10 days prior to commencement of trial or 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.... "(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.
"An offer to compromise under [section 998] must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer." (Fassberg Const. Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 764.) Offers to compromise are governed by contract law principles. (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 279.) Consequently, an offer can be revoked as long as the offeree has not yet accepted. (Id. at p. 283.)
Section 998 provides that an offer must be accepted within 30 days after it is made. The 30-day period for acceptance is extended by 5 calendar days if the offer is served by mail. (Poster v. Southern Cal. Rapid Transit Dist., supra, 52 Cal.3d at p. 274.) If the offer is not accepted within that period, it is deemed withdrawn. (Hofer v. Young (1995) 38 Cal.App.4th 52, 58.) The acceptance may be made on the document containing the offer or on a separate document, and it must be in writing, and signed by counsel for the accepting party. The acceptance must be "absolute and unqualified." (Civ. Code, § 1585.)
The Offer
Gardenias' written offer to compromise is entitled "Statutory Offer of Settlement [C.C.P. §998]". It states:
"TO DEFENDANT, LORI CANDREVA AND THEIR ATTORNEYS OF RECORD HEREIN:
"Plaintiff, BELLA GARDENIAS, offers to allow settlement of the claims, in the above-entitled action for the sum of fifteen thousand dollars ($15,000.00) in exchange for the execution of a 'Release in Full of All Claims and Rights' form by plaintiff, BELLA GARDENIAS, releasing defendant, LORI CANDREVA, and a 'Request for Dismissal' with prejudice of the action. Each party will bear their own costs, expenses and fees, including, but not limited to, attorneys' fees.
"All parties waive their respective rights to file a Memorandum of Costs or otherwise seek recovery of any costs, expenses, fees, including, but not limited [sic], attorneys fees.
"If this offer to settle is not accepted with the time provided by Section 998 of the Code of Civil Procedure, these [sic] Plaintiff shall deny that the offer was made and will seek all remedies as allowed by law."
The offer is dated October 30, 2009, and is signed by Pejman Rahnama.
The Acceptance
The acceptance, dated November 30, 2009, and signed by one of Candreva's attorneys states:
"Dear Mr. Peyman:
"This letter will confirm our phone conversation of this date, wherein we agreed to resolve the above captioned case for the sum of $15,000.00 by way of Settlement and Release. This letter will also confirm our agreement that in light of our settlement agreement, there will be no need for us to serve a formal response to your client's CCP §998 offer of $15,000.00.
"We will forward the Release and Dismissal by U.S. Mail."
The Acceptance Complied with Section 998
Gardenias asserts her revocation of the offer on December 2 was valid because Candreva did not unequivocally accept the specific terms of the offer; therefore, the purported acceptance was in fact a rejection and counteroffer. Gardenias asserts the acceptance was fatally flawed because it did not contain the following language: (1) "Release in Full of All Claims and Rights form by Plaintiff, BELLA GARDENIAS, " (2) "Each party will bear their own costs, expense and fees including, but not limited to, attorney fees, " and (3) (Waiver by the parties of) "their respective rights to file a Memorandum of Costs or otherwise seek recovery of any costs, expenses, fees, including, but not limited [sic], attorneys fees."
Gardenias cites no authority supporting her premise that, to be valid under section 998, an acceptance must contain the exact same language as the offer. She relies on Bias v. Wright (2002) 103 Cal.App.4th 811 , in which the court held an acceptance was not absolute and unqualified because the offer was silent as to costs and the acceptance was conditioned on the parties bearing their own costs. Here, the reverse occurred. Gardenias' offer was not silent as to costs and attorney fees. Candreva stated in her acceptance that "we agreed to resolve the above captioned case for the sum of $15,000.00 by way of Settlement and Release." Nothing in the acceptance changed the terms of the offer.
Here, Gardenias made an unambiguous offer and Candreva gave a clear and unqualified acceptance. There is no dispute the acceptance was received by Gardenias before it was revoked. "As a result, according to general principles of contract law, the statutory offer to compromise was accepted. The acceptance does not conflict with either the language or the purpose of section 998. Moreover, it fosters the policy embodied in section 998 to encourage pretrial settlements of disputes." (Hofer v. Young, supra, 38 Cal.App.4th at pp. 56-57.)
Gardenias also asserts her revocation was valid because Candreva did not file proof of acceptance with the court clerk or judge. The argument is without merit. The record shows that both the offer and the letter of acceptance were filed with the court on December 22, 2009, as attachments to Candreva's motion to enforce the settlement. Section 998, subdivision (b)(1), requires that proof of acceptance must be filed for judgment to be entered, but the statute does not require that the proof of acceptance be filed within any particular time frame. (Bias v. Wright, supra, 103 Cal.App.4th at p. 820.)
The trial court correctly determined that the offer and acceptance met the requirements of section 998.
The order is affirmed. Respondent shall recover costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.
"....
"(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."