Filed 11/19/15 Lozano v. Aqua 2000 Purified Water Vending Co. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


ENRIQUE LOZANO,                                                     D066403

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. ECU 07583)

AQUA 2000 PURIFIED WATER VENDING
COMPANY, LLC,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Imperial County,

Juan Ulloa, Judge. Reversed and remanded with directions.


         Dennis J. Price for Plaintiff and Appellant.

         No appearance for Defendant and Respondent.

         Enrique Lozano appeals from a judgment of dismissal after the trial court denied

his request to enter judgment on his accepted offer to compromise under Code of Civil

Procedure section 998 (section 998). He contends the trial court erred in refusing to enter

judgment pursuant to section 998 based on its finding that the offer did not comply with

the statute. We agree and reverse the judgment of dismissal.
                  FACTUAL AND PROCEDURAL BACKGROUND

       Lozano is a paraplegic who uses a wheelchair for mobility. Aqua 2000 Purified

Water Vending Company, LLC (Aqua) is the owner and operator of a water vending

facility in Calexico, California. Lozano attempted to obtain water from Aqua's facility

but was unable to do so because the operating controls and mechanisms were too high.

       In March 2013, Lozano brought an action against Aqua for negligence and

violations of the Americans with Disabilities Act, Unruh Civil Rights Act, and California

Disabled Persons Act. In September of that year, Aqua gave Lozano an offer to

compromise pursuant to section 998 (the Offer). The Offer provided:

          "Pursuant to . . . [section] 998, Defendant Aqua 2000, Purified
          Water Vending Company, LLC offers to pay in exchange for
          dismissal of this action, the sum of $6000 in satisfaction of all claims
          for damages, costs and expenses, attorney's fees and interest in this
          action. You may indicate below your acceptance of this offer by
          signing the statement to that effect that is set forth below. This offer
          shall remain open for thirty days from the date signed below."

Lozano signed and accepted the Offer within three days. As of July 2014, Aqua failed to

pay Lozano any amount of money.

       Lozano filed the accepted Offer with the court. Lozano requested ex parte that the

court enter judgment in his favor in accordance with the Offer. The trial court refused,

concluding the Offer did not comply with the statute.

                                      DISCUSSION

       Lozano argues the Offer was enforceable and he was entitled to entry of judgment

based thereon. We agree.



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       "The issue of whether a section 998 offer is enforceable, and the application of

section 998 to an undisputed set of facts, presents questions of law, which we review de

novo." (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130.)

       Under section 998, subdivision (b), a party to a civil action "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." (§ 998, subd. (b).) "If the offer is

accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall

enter judgment accordingly." (§ 998, subd. (b)(1) (italics added).)

       "If no other 'terms and conditions' apart from the consideration required to

consummate the settlement are specifically set forth, then the offer, by virtue of default to

the statutory language, is simply intended as one to 'allow judgment to be taken' in

exchange for the specified amount of funds." (Berg v. Darden (2004) 120 Cal.App.4th

721, 728 (Berg).) " '[A]s between the parties thereto and for purposes of enforcement of

settlement agreements, a compromise agreement contemplating payment by defendant

and dismissal of the action by plaintiff is the legal equivalent of a judgment in plaintiff's

favor.' " (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96

Cal.App.4th 1017, 1055 (American Airlines).)

       Here, the Offer clearly shows that the parties intended that it be governed by

section 998. It was entitled "Offer to Compromise Pursuant to Code of Civil Procedure

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§ 998 to Plaintiff" and referenced the statute in its terms. Additionally, the terms of the

Offer and its acceptance revealed that the parties intended to finally dispose of the lawsuit

by resolving "all claims for damages, costs and expenses, attorney's fees, and interest in

this action" in exchange for $6,000. The Offer complied with section 998 in that it

included a statement of the offer containing the terms and conditions of the judgment or

award (payment of $6,000 in satisfaction of all claims, damages, costs, expenses,

attorney's fees and interest), and a provision allowing the accepting party to accept the

offer by signing the acceptance. (§ 998, subd. (b).)

       Although the Offer did not specifically reference entry of judgment and instead

called for dismissal, we do not find that omission fatal. (American Airlines, Inc., supra,

96 Cal.App.4th at pp. 1055-1056 [plaintiff's offer to compromise in exchange for

dismissal of the lawsuit was valid even though it did not provide for entry of judgment

because the compromise offer contemplated some final disposition of the case].) Aqua

expressly made its offer pursuant to section 998, which provides that "[i]f the offer is

accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall

enter judgment accordingly." (§ 998, subd. (b)(1), italics added.) "An otherwise clear

section 998 offer is not rendered invalid simply because it does not track precisely the

language of the statute." (Berg, supra, 120 Cal.App.4th at p. 728.) Moreover, to the

extent that there is an ambiguity in the way in which the lawsuit would be terminated, we

construe those ambiguities against the offeror. (Chinn v. KMR Property Management

(2008) 166 Cal.App.4th 175, 184.)



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       Lozano presumably did not dismiss the action because Aqua never paid him.

Accordingly, his only option to obtain a final disposition of the case was entry of

judgment on the terms of the Offer. "[T]he purposes of section 998 [are] best served by

enforcement of statutory offers which, despite the absence of the statutory language

proposing to 'allow judgment to be taken,' make it clear that settlement will result in a

final disposition of the litigation." (Berg, supra, 120 Cal.App.4th at p. 729.)

       As a matter of law, we find that the Offer satisfied the requirements of section

998. Thus, the trial court erred by failing to enter judgment in accordance with the terms

and conditions set forth in the Offer.

                                         DISPOSITION

       The judgment of dismissal entered on October 27, 2014, is reversed and the case is

remanded for the trial court to enter judgment in accordance with the parties' Offer.

Lozano is entitled to costs on appeal.



                                                                             MCINTYRE, J.

WE CONCUR:


HALLER, Acting P. J.


IRION, J.




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