Filed 10/15/13 Arreola v. Napole CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


MARIA ARREOLA,                                                       B239467

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. YC064316)
         v.

RONALDO NAPOLE et al.,

         Defendants and Respondents.




         APPEAL from a judgment and an order of the Superior Court of Los Angeles
County, Dudley W. Gray II, Judge. Judgment reversed with directions; appeal from
order dismissed.
         Carpenter, Zuckerman & Rowley and Paul S. Zuckerman for Plaintiff and
Appellant.
         Green & Hall and John T. Griffin for Defendants and Respondents.


                                             ____________________
                                    INTRODUCTION


       Plaintiff Maria Arreola appeals from a $1 million judgment in her favor entered
following an attempted acceptance of her settlement offers by defendants Ronaldo
Napole and World Express Tech, Inc. pursuant to Code of Civil Procedure section 998.
She also appeals from a post-judgment order denying her motion to set aside the
judgment pursuant to Code of Civil Procedure section 473. We conclude that, even
though the offers were not valid statutory offers under Code of Civil Procedure
section 998, they were valid non-statutory offers, and defendants did not properly accept
them according to their terms. Therefore, we reverse the judgment the trial court entered
pursuant to section 998.


                 FACTUAL AND PROCEDURAL BACKGROUND


       On March 1, 2011 Arreola filed a complaint for personal injuries. She alleged that
she was injured on March 30, 2009 when, while crossing the street in a marked
crosswalk, she was struck by a Chevrolet Suburban driven by Napole while he was
working for his employer World Express. Defendants answered on May 31, 2011.
       On September 1, 2011 counsel for Arreola instructed their legal assistant, Cynthia
Carter, to prepare two Civil Code section 998 (section 998) settlement offers in a
different case, Deegan v. Taylor.1 Due to clerical error, Carter prepared two settlement
offers in the amount of $499,999.99 each in this case instead of Deegan, and then gave
them to the wrong attorney, Richard Benavidez. Benavidez was a new attorney, was not
handling this case, and did not have the discretion to make settlement offers in this case.
Nevertheless, Benavidez signed the section 998 offers and served them by mail. Carter
signed the proof of service.


1      This explanation was contained in a declaration by Carter, who did not identify the
attorney who gave her the instruction.


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       Counsel for defendants, John T. Griffin, received the two $499,999.99 settlement
offers on September 6, 2011. On September 14, 2011 he called Benavidez to request a
30-day extension of the time for defendants to respond to the offers. Griffin did not reach
Benavidez but left a message for Benavidez to call him back. The following day Griffin
called Paul S. Zuckerman, whose name also appeared on the settlement offers, and left a
similar message. Neither attorney called back, so Griffin called Benavidez again on
September 19 and left another message. On September 21, after having failed to receive
a return call from either Benavidez or Zuckerman, Griffin sent a letter to Benavidez via
fax and mail requesting a 30-day extension to respond to the settlement offers. After
again receiving no response, Griffin sent follow-up letters to Benavidez and Zuckerman
on Wednesday, September 28, 2011. On Friday, September 30, 2011 Griffin, still having
heard nothing from either of Arreola’s attorneys, signed notices of acceptance of the
section 998 offers to compromise and returned them to Benavidez and Zuckerman by fax
and mail.
       On Monday, October 3, 2011, after he had signed and returned the acceptances of
the two section 998 offers, Griffin received a letter dated September 30, 2011 from Slav
Kasreliovich, another attorney in the office of counsel for Arreola, responding to
Griffin’s September 21, 2011 letter to Benavidez. Kasreliovich’s letter, referencing this
case, stated that “we do not extend C.C.P. 998 deadlines. If you want to offer the amount
demanded in Plaintiff’s C.C.P. 998, at a later date, we will consider it. However, at that
time, it will be our option to accept or decline. [¶] As it stands, it is your client’s option
to pay the C.C.P. 998 demand and end the litigation within the statutory time, but we will
not extend your time. I hope this addresses all the issues raised in your letter of
September 21, 2011.”
       That same day, October 3, Arreola filed and served a document entitled
“Plaintiff’s Notice Regarding CCP § 998” signed by Zuckerman and an accompanying
declaration by Carter. This advised the court that defendants could not have accepted
Arreola’s section 998 settlement offers because she had not intended to make them, that
defendants’ faxed acceptances were invalid, and that any offer was withdrawn. The

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document stated that because relief under Code of Civil Procedure section 473 is
available only after the trial court has entered a judgment or an order pursuant to section
998, Arreola was filing the notice to let the court and defendants know her position.
       On October 4, 2011 Griffin received a copy of Arreola’s notice purporting to
revoke the settlement offers. He also received two new section 998 settlement offers in
the amount of $1,499,999.99 each. Believing his acceptance of the two original
settlement offers was valid, Griffin filed a motion on October 17, 2011 for entry of
judgment pursuant to section 998.
       Arreola filed opposition to the motion, restating the claims and arguments in the
notice counsel for Arreola had filed on October 3, 2011. In addition, Zuckerman filed a
declaration referring to a police report and medical records regarding the seriousness of
the accident and Arreola’s injuries. He further stated: “During the course of
investigating this matter, plaintiff’s counsel learned that the defendants collectively
possess insurance for this loss of $1,500,000. [¶] . . . In cases like this one, plaintiff’s
counsel’s practice and intent is to make a CCP § 998 offer for the full insurance policy
limits. In this case the policy limits are $1,500,000—not $1,000,000. [¶] . . . Plaintiff’s
counsel was not authorized to serve the two CCP § 998 offers for $499,999.99 each.”2
       At the hearing on the motion the court told the attorney then appearing for
Arreola, Donn Christensen, that the court was concerned that there was no declaration
from Arreola stating that she had not authorized the initial settlement offers. After
hearing argument on the motion and taking the matter under submission, the court
granted the motion. On December 16, 2011 the court entered judgment in favor of
Arreola and against each defendant in the amount of $499,999.99.
       On January 30, 2012 Arreola moved to set aside the judgment pursuant to Code of
Civil Procedure section 473, subdivision (b) (section 473(b)), on the ground the court had
entered the judgment as a result of counsel’s mistake, inadvertence, surprise, and


2      It is unclear why the second section 998 offers to compromise requested $3
million rather than $1.5 million.


                                               4
excusable neglect. Arreola also argued that the judgment was void and improperly
entered. Defendants opposed the motion on the grounds that Arreola was not entitled to
relief under section 473(b) and that much of Arreola’s motion merely repeated arguments
she had previously made and that the court had rejected. Arreola also filed a concurrent
motion to specially set a hearing on her motion to set aside the judgment. In conjunction
with this motion, she submitted a declaration stating that “[a]t no time did I authorize my
counsel to serve the two CCP § 998 offers for $499,999.99 each. Further, I did not
authorize my counsel to settle this case for the sum of those two offers.”
       At the hearing on the motion to set aside the judgment, the trial court pointed out
that it had already rejected the same arguments at the prior hearing. The court also noted
that Arreola did not file a declaration stating that she did not authorize the settlement
offer until after entry of judgment. After hearing argument from both sides the court
denied the motion. Arreola filed a timely appeal from the judgment and the order
denying relief under section 473(b).


                                       DISCUSSION


       Section 998, subdivision (b), provides that “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.” The statute further provides:
“(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



                                              5
accepted prior to trial . . . or within 30 days after it is made, whichever occurs first, it
shall be deemed withdrawn . . . .” (§ 998, subd. (b).)
        Arreola’s original section 998 settlement offers stated: “If you accept this offer,
please date and sign the accompanying Notice of Acceptance and file the Offer and
Notice of Acceptance with the above-entitled Court prior to trial, or within 30 days after
the offer is made, whichever occurs first; otherwise, said offer will be deemed
withdrawn.” (Italics added.) It is undisputed that defendants did not file the offers and
notices of acceptance with the trial court within 30 days after Arreola made the offers. It
is Arreola’s position that because defendants signed the section 998 offers within the 30-
day period but did not file the offers and notices of acceptance with the court until after
expiration of the 30-day period, the section 998 offers expired by their terms before
defendants accepted them. Defendants argue that Arreola’s position “is absolutely
contrary to [section] 998”and that her requirement that defendants also file the notice of
acceptance with the court “impose[s] a requirement that simply does not exist in [section]
998.”
        Arreola relies on the principle of general contract law that “[i]f a proposal
prescribes any conditions concerning the communication of its acceptance, the proposer
is not bound unless they are conformed to; but in other cases any reasonable and usual
mode may be adopted.” (Civ. Code, § 1582.) Thus, under general principles of contract
law, “[t]he act or acts which constitute an acceptance of an offer . . . are determined by
the terms of the contract itself, and where, as here, the acceptance . . . is by the terms of
the contract to be made in a particular manner, it must be strictly so made in order to
constitute a valid acceptance.” (Callisch v. Farnham (1948) 83 Cal.App.2d 427, 430; see
Amer. Aero. Corp. v. Grand Cen. Aircraft Co. (1957) 155 Cal.App.2d 69, 79 [“An
acceptance, to result in the formation of a binding contract, must meet exactly, precisely,
and unequivocally the terms proposed in the offer.”] “Acceptance is the ‘manifestation
of assent to the terms thereof made by the offeree in a manner invited or required by the
offer.’ (Rest.2d Contracts [(1981)] § 50.)” (In re First Capital Life Ins. Co. (1995) 34
Cal.App.4th 1283, 1288.) Relying on these principles of contract law, Arreola argues

                                                6
that because the offers required defendants not only to sign the offers but to file the offers
and notices of acceptance within 30 days, defendants did not validly accept the offers
pursuant to their terms because defendants did not file the offers and notices of
acceptance within 30 days.
       Several courts have discussed the relationship between section 998 and general
contract law. In T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, the Supreme
Court discussed this relationship in the context of deciding whether a section 998 offer is
revocable within the 30-day period. The court began by noting that section 998 does not
specify whether an offer is revocable or irrevocable during the 30-day period. (Id. at
p. 277.) Under contract law, however, an offer may be revoked at any time prior to
acceptance. (Id. at p. 278; see Civ. Code, § 1586.) The court concluded that “[i]n light of
this firmly established principle of contract law, it is clear that if the Legislature intended
to make section 998 offers irrevocable, it would have expressly and unequivocally said
so. It did not. In the absence of such language, the general rule that offers may be
revoked prior to acceptance should apply.” (Cobb, supra, at p. 278, fn. omitted.) The
court also observed that “[s]ince section 998 involves the process of settlement and
compromise and since this process is a contractual one, it is appropriate for contract law
principles to govern the offer and acceptance process under section 998.” (Id. at p. 280.)
The court added the caveat that “general contract law principles should apply to section
998 offers and acceptance only where such principles neither conflict with the statute nor
defeat its purpose,” which is to encourage the settlement of lawsuits prior to trial. (Ibid.)
The court concluded that section 998 offers may be revoked during the 30-day period.
(Id. at pp. 283-284.)
       The Supreme Court recently reaffirmed these principles in Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, where the court addressed the effect of
multiple settlement offers on the recovery of expert witness fees under section 998. The
Supreme Court stated that “[w]hen the language of section 998 does not provide a
definitive answer for a particular application of its terms, courts may consult and apply
general contract law principles. Because the process of settlement and compromise is a

                                               7
contractual one, such principles may, in appropriate circumstances, govern the offer and
acceptance process under section 998. [Citation.]” (Id. at p. 1020.)
       In determining whether to apply contract law principles, the court considers
several factors. First, the court looks at whether “the policy of encouraging settlements is
‘best promoted’” by applying the contract law principles. (Martinez v. Brownco
Construction Co., supra, 56 Cal.4th at p. 1020.) Second, contract law principles “will not
be found to govern if [their] application would conflict with section 998 or defeat its
purpose. [Citations.]” (Ibid.)3 Third, the court considers “whether applying section 998
in a particular manner serves the public policy of compensating the injured party.” (Id. at
p. 1021.)4 “Finally, a court should assess whether the particular application injects
uncertainty into the section 998 process. If a proposed rule would encourage
gamesmanship or spawn disputes over the operation of section 998, rejection of the rule
is appropriate. [Citations.]” (Ibid.)5


3       For example, in Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266,
the court declined to apply the contract law rule that a counteroffer operates as a rejection
of the original offer to section 998 because the general counteroffer rule would tend to
stifle negotiations and discourage settlement. The court in Poster concluded that, even
after making a counteroffer, an offeree may accept a section 998 offer any time before its
revocation or expiration. (Id. at pp. 271-272; see Martinez v. Brownco Construction Co.,
supra, 56 Cal.4th at p. 1020.)
4      The court in T. M. Cobb Co. v. Superior Court, supra, 36 Cal.3d at page 282,
concluded that allowing revocation of a section 998 offer serves this policy by
“provid[ing] flexibility when parties discover new evidence bearing on the plaintiff’s
injuries or the defendant’s culpability.” (Martinez v. Brownco Construction Co., supra,
56 Cal.4th at p. 1021.)
5       The court in Poster rejected the general counteroffer rule in part “[t]o promote
clarity over the status of a section 998 offer,” noting “the difficulty of discerning between
a mere inquiry as to the possibility of different terms (which would leave an offeree free
to accept an outstanding [section] 998 offer) and a true counteroffer (which would
operate as a rejection of the statutory offer and prevent its later acceptance).” (Poster [v.
Southern Cal. Rapid Transit Dist., supra, 52 Cal.3d] at p. 272.)” (Martinez v. Brownco
Construction Co., supra, 56 Cal.4th at p. 1021.)


                                              8
       For example, in Martinez the court concluded that the contract law principle under
which the last offer extinguishes a prior offer should not be applied to section 998
settlement offers, and that therefore the plaintiff was entitled to recover expert witness
fees from the date of the first section 998 offer. The court stated that this conclusion
promoted the public policy of compensating injured parties “by according parties
flexibility to adjust their settlement demands in response to newly discovered evidence.”
(Martinez v. Brownco Construction Co., supra, 56 Cal.4th at p. 1026.) The court also
concluded that not applying the contract rule would avoid uncertainty or confusion and
would be easy to apply. Similarly, because the purpose of section 998’s provisions
regarding the means of acceptance was to “eliminat[e] uncertainty in the acceptance of
section 998 offers” by requiring the offer to contain an acceptance provision and
“requiring the acceptance to be made by a signed statement,” cases addressing these
provisions have held that a section 998 offer that does not contain an acceptance
provision is invalid. (See Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992,
1003; Perez v. Torres (2012) 206 Cal.App.4th 418, 425-426; Puerta v. Torres (2011) 195
Cal.App.4th 1267, 1273.) If a party could claim that an offer without an acceptance
provision were valid, “[u]ncertainty and confusion will become the rule.” (Perez, supra,
at p. 425.) Establishing “a bright-line rule invalidating an offer when it omits an
acceptance provision, or any other statutorily required provision, . . . will eliminate
confusion and uncertainty.” (Id. at pp. 425-426.)6
       We agree with defendants that the contract law rule embodied in Civil Code
section 1582 does not permit a party making a section 998 offer to add requirements for
acceptance of the offer to those set forth in section 998. Allowing the offeror to impose
additional acceptance requirements would conflict with goals of section 998, conflict



6       The case cited by defendants, Hofer v. Young (1995) 38 Cal.App.4th 52, predates
the 2005 amendment to section 998 that added the language requiring that a section 998
offer include “a provision that allows the accepting party to indicate acceptance of the
offer by signing a statement that the offer is accepted.” (§ 998, subd. (b).)


                                              9
with the statutory language mandating the specific means by which a section 998 offer
can be accepted, and introduce additional levels of uncertainty and complication into the
section 998 process. For example, the validity of an acceptance and the formation of a
settlement agreement under section 998 would depend on whether a messenger made it to
the courthouse by the close of business on Day 30. It would also lead to litigation over
whether the offeree complied or substantially complied with the additional acceptance
terms, the effect of any non-compliance, and whether the non-compliance was material or
non-material. “Attorneys will wonder if the” addition of acceptance requirements to the
“statutorily required provision[s] renders the offer or acceptance invalid or is merely a
harmless error.” (Perez v. Torres, supra, 206 Cal.App.4th at p. 425.)
       Because Arreola’s section 998 included the additional term that defendant file the
notice of acceptance with the court within 30 days, it did not qualify as a section 998
offer, and therefore, had the parties gone to trial, it would not have implicated the cost-
shifting provisions of section 998. (See Perez v. Torres, supra, 206 Cal.App.4th at
pp. 421, 426 [because the defendant’s offer did not include the statutorily required
acceptance provision, it was an invalid section 998 offer and the defendant was not
entitled to recover costs]; Marina Glencoe, L.P. v. Neue Sentimental Film AG (2008) 168
Cal.App.4th 874, 880 [offer revoked before the end of the statutory period “was no
longer an ‘offer’ for purposes of the cost benefits of section 998”]; Hurlbut v. Sonora
Community Hospital (1989) 207 Cal.App.3d 388, 410 [joint settlement offer invalid
under section 998 did not entitle the plaintiff to recover expert witness fees under that
section].)
       The fact that Arreola served a defective section 998 offer, however, did not mean
it was an offer that defendants could not accept. It only meant that Arreola could not
recover her costs under section 998 if the jury awarded her more than $999,999.98 (or,
more accurately, $499,999.99 against each defendant). Defendants could decline to
accept the offer without worrying about the possibility of the consequence under
section 998 of having to pay Arreola’s costs if she recovered more than $999,999.98 at
trial. (See Marina Glencoe, L.P. v. Neue Sentimental Film AG, supra, 168 Cal.App.4th at

                                             10
p. 880 [a “section 998 offer . . . revoked prior to the expiration of the statutory period, . . .
no longer functions as an ‘offer’ for purposes of the cost benefits of section 998”].) But
an offer that does not qualify as an offer under section 998 is still an offer, and defendants
could only accept the offer according to its terms, which, on this record, defendants did
not do. Therefore, the trial court erred by entering judgment in this case pursuant to
section 998.


                                       DISPOSITION


       The judgment is reversed. Arreola’s appeal from the order denying her
section 473(b) motion is dismissed as moot. Arreola is to recover her costs on appeal.



                                                    SEGAL, J.*


We concur:



               PERLUSS, P. J.



               ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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