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Sumalpong v. A.C. Fire Protection Co.2/5/2002
o allow double recovery for the same injury.
The trial court should have reduced the non-economic damages to zero to reflect an offset in the amount of the Jones settlement. We will order the judgment modified accordingly.
Section 998 Offer to Compromise
A plaintiff who refuses a reasonable offer to compromise under section 998 and subsequently fails to obtain a more favorable judgment loses the right to prevailing party costs and must pay the post-offer costs incurred by the defendant. (ยง 998, subd. (c)(1).) Defendant argues that the punitive provisions of section 998 apply to plaintiff because she rejected a settlement offer of $50,001 and did not receive a more favorable judgment at trial. We disagree. The trial court properly determined that the settlement offer was ineffective because it was not timely served.
An offer to compromise under section 998 must be served " ot less than 10 days prior to commencement of trial or arbitration." (Id., subd. (b).) The parties agree that for purposes of the offer in this case, trial commenced on October 27, 2000. The offer was timely only if it was served by October 17, 2000.
In support of the motion to vacate the judgment, defense counsel filed a sworn declaration stating that the section 998 offer was served by mail on October 17, 2000. But though the offer itself was dated October 17, 2000, it was accompanied by a proof of service stating that service by mail was made on June 20, 2000. The postmark on the envelope was dated "OCT 17, '52." Defense counsel subsequently delivered a "duplicate" of the offer with a different proof of service inaccurately stating that this second offer had been mailed October 17, 2000. Plaintiff filed a declaration stating that she did not received the first offer until October 23, 2000.
The timeliness of the section 998 offer is in this case a factual issue, and we review the court's ruling for substantial evidence. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Given the irregularities in the proofs of service, the court could reasonably conclude that the offer was not effective until it was actually received by plaintiff on October 23. (See Tobin v. Oris (1992) 3 Cal.App.4th 814, 826 [defective proof of service irrelevant because document actually received; date of receipt treated as date of service], overruled on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12.) Substantial evidence supports the conclusion that the offer was not served within 10 days of trial.
Defendant alternatively argues that plaintiff should be ordered to pay the litigation costs of co-defendant Schram, who was a prevailing party due to the directed verdict in his favor. Schram did not appeal and we need not address this contention. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 526; Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1128.) Moreover, the costs memorandum filed by defendant and Schram did not differentiate the legal expenses incurred by each. There was no basis for distinguishing Schram's identity or interest in the litigation from defendant's, and his entitlement to costs cannot be separated from defendant's. (See Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 974-975.)
DISPOSITION
The judgment shall be modified to reduce the damages for non-economic injuries to zero. In all other respects, the judgment is affirmed.
The parties shall bear their own costs.
NOT TO BE PUBLISHED.
We concur:
YEGAN, Acting P.J.
PERREN, J.
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