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Jackson v. Roberts12/17/2004
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Frankie Ray Roberts appeals from a posttrial order granting the motion to tax costs filed by plaintiffs Daniel and Gladine Jackson and denying the motion to tax costs filed by defendant. He contends the trial court erred in ruling his Code of Civil Procedure section 998 offer of compromise "a nullity as a collective offer to two plaintiffs." Defendant also argues plaintiffs failed to obtain a judgment more favorable than the offer to compromise and he is, therefore, entitled to the costs he seeks. We reject defendant's first contention and need not reach the second.
DISCUSSION
Section 998, subdivision (c)(1) provides: "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, . . . the court . . . in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses . . . ."
Randles v. Lowry (1970) 4 Cal.App.3d 68, 74, holds that an offer of compromise is a nullity where it is "made jointly to all plaintiffs, without designating how it should be divided between them." Absent that designation, it is impossible to determine whether one plaintiff received a less favorable result than he or she would have received under the offer of compromise. (Ibid.; see also Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 409-410.)
Although the parties appear to have referenced relevant legal authorities in their briefs, neither cites to the appellate record as required by California Rules of Court, rule 14(a)(1)(C). We assume the offer of compromise at issue is the document found on page 34 of the clerk's transcript, which reads:
"TO PLAINTIFFS, DANIEL AND GLADINE JACKSON, AND THIER ATTORNEY OF RECORD:
"YOU, AND EACH OF YOU, WILL TAKE NOTICE that pursuant to Section 998 of the Code of Civil Procedure of the State of California, defendant, FRANKIE RAY ROBERTS, offers to allow judgment to be taken against him by plaintiffs in the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00), said sum to include all costs incurred by said plaintiff."
More critical, and indeed fatal, to defendant's appeal is his failure to include in the record a copy of plaintiffs' complaint and the trial court's judgment following what he describes as a jury trial. Defendant attempts to distinguish Randles by arguing the plaintiffs in this case shared a community interest in the personal injury action and that Gladine's loss of consortium claim arose out of bodily injury to Daniel. He represents that "the joint offer to compromise was made to two plaintiffs, a married couple. One of the two plaintiffs was not present at the accident and asserted only a claim for loss of consortium." Without citation to facts in the record, defendant's representations are nothing more than argument.
The complaint would have set forth the claims of each plaintiff, information necessary to evaluate defendant's argument and to determine whether the offer of compromise ran afoul of Randles. Similarly, if we had concluded that the offer of compromise was valid, a copy of the judgment would have been necessary to decide whether plaintiffs failed to obtain a judgment more fa
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