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Bias v. Wright11/15/2002
Plaintiff Valerie Bias appeals the entry of judgment under Code of Civil Procedure section 998 (all further statutory references are to the Code of Civil Procedure unless otherwise indicated). In this personal injury action, Bias served defendant Michelle D. Wright with a written offer to compromise under section 998. Wright claims Bias's offer was orally accepted on her behalf. Later that same day, Wright faxed to Bias a written confirmation of the oral acceptance entitled "notice of acceptance." Although Bias's offer was silent as to costs, Wright's notice of acceptance imposed the added condition that the parties bear their own costs. Wright filed that notice as proof of acceptance of Bias's offer. Wright moved to enforce the purported settlement agreement under section 998, and after hearing argument and receiving evidence, the trial court granted Wright's motion and entered judgment.
We conclude the trial court erred by granting Wright's motion and entering judgment; therefore, we reverse. We hold: (1) undisputed oral acceptance of a section 998 offer followed by written proof of acceptance is permitted unless the offer requires another mode of acceptance; (2) purported oral acceptance evidenced by written notice of acceptance that includes an additional term not present in a section 998 offer does not communicate an absolute and unequivocal acceptance of the offer as required by Civil Code section 1585; and (3) under section 998, a trial court or clerk may not adjudicate a factual dispute over the terms of a settlement agreement and enter judgment.
I. FACTS
On November 28, 2000, Bias served a section 998 offer on Wright, which stated: "Plaintiff, VALERIE BIAS, hereby offers to compromise Plaintiff's claim against Defendant, MICHELLE D. WRIGHT, pursuant to the provisions of Code of Civil Procedure Section 998 and Civil Code Section 3291, for the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00). [ ] If this offer is not accepted prior to trial or within thirty (30) days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon trial. [ ] If this offer is not accepted, Plaintiff shall seek to recover from Defendant her costs for the service of expert witnesses actually incurred and reasonably necessary in either or both the preparation or trial of the case by the Plaintiff, and all sums shall bear interest at the legal rate of 10% per annum calculated from the date of Plaintiff's Statutory Offer to Compromise." The offer did not state the manner in which the acceptance had to be communicated.
Bias and Wright extended the time that Wright could accept the offer through January 4, 2001. On January 4, Wright's attorney, Bryson, instructed his secretary, Snyder, to call Bias's attorney and inform him that Wright accepted the offer. According to Wright, Snyder called Bias's attorney that same day and told him that Wright accepted Bias's section 998 offer. Bias's attorney told Snyder that "it was okay" and asked Snyder to send a written confirmation of the acceptance. (Although Bias suggested at oral argument that her attorney, Sheaks, filed a declaration denying his office received a call from Snyder on January 4 regarding the section 998 offer, the record does not contain such a denial. Instead, Sheaks's supplemental declaration stated his office did not receive a telephone call from Snyder or anyone else communicating an "unqualified acceptance of plaintiff's 998 offer.")
Snyder called Bryson and told him that Bias's attorney requested written confirmation of Wright's acceptance of the offer. Bryson instructed Snyder to prepare a notice of acceptance based on the format used in another case and give
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