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Barella v. Exchange Bank11/3/2000
the right to a public verdict or (2) decline the lucrative monetary offer (knowing there will not be a better award at trial) and simply accept the risk of paying defendant's costs as an additional price for public vindication. Placing an offeree in such an untenable position is inconsistent with the purpose of section 998.
The more difficult hypothetical is the case in which the defendant makes a substantial monetary offer and the defamation relates to an ostensibly minor matter. While this is a closer question, it is this court's view that the trial judge cannot assess the relative importance to any individual of his or her good name in the business community or neighborhood, no matter how relatively trivial the issue may seem to a neutral, dispassionate jurist. The contention that in a defamation action a judge can attach a monetary value to an individual's opportunity for public vindication (in matters either great or small) contains as its tacit premise the notion that everyone has a price-that reputations can be bought and sold like any other commodity. We are not prepared to validate that premise in the service of promoting settlements and clearing dockets.
We conclude that the task of valuing a confidentiality clause attached to a settlement offer in a defamation action is too subjective and, therefore, cannot be done. Thus, a confidentiality condition in such a settlement offer will render the offer invalid for purposes of shifting costs to the plaintiff.
In light of that conclusion, we reject the trial court's alternative finding that plaintiff's recovery in a verdict made public was more favorable than the Bank's settlement offer conditioned upon confidentiality. To reach that decision on the relative values of the verdict and the offer, the trial court must necessarily have put a value on the vindication plaintiff received from the public verdict. As we have explained, we conclude that such valuation is an impossible task.
Disposition
The order granting plaintiff's motion to strike defendant's cost bill and the order denying defendant's motion to tax plaintiff's cost bill are affirmed. Costs on appeal are awarded to respondent, John E. Barella.
We concur.
JONES, P.J.
STEVENS, J.
Trial Judge Raymond J. Giordano, Judge
Page 1 2 3 4 5 6 California Personal Injury Attorneys
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