Hmmm. Don't know about this one. Seems wrong to me. Not absolutely sure. But seems wrong.
Hartline sues Kaiser. Kaiser obtains summary adjudication of Hartline's first cause of action against it, which leaves only a (meritless) cause of action for premises liability against Kaiser. Kaiser then sends a 998 offer to Hartline which offers to waive costs in return for a "Request for Dismissal with prejudice." Hartline doesn't accept the offer, and when Kaiser thereafter prevails, it seeks to recover expert witness costs incurred after the 998 offer. The trial court awards 'em, and the Court of Appeal affirms.
The problem is that I think that Hartline is right that the 998 offer submitted by Kaiser required Hartline to waive its rights to appeal the summary adjudication of the first cause of action, and hence that the offer was not in good faith. Justice Cantil-Sakauye responds only that nothing in the 998 offer said anything about waiving appeal rights. But I think that this is precisely what an unvarnished Request for Dismissal does; or, at a very minimum, a reasonable party could so assume. Moreover, Justice Cantil-Sakauye asserts that if this is what Hartline thought the 998 offer meant, they could have made a counteroffer that agreed to dismiss the remaining cause of action in return for a waiver but preserve their right to appeal. But, first, nothing in 998 requires you to counter (or clarify) an ambiguous offer. And, second, and perhaps more critically, this is what Hartline basically did anyway. The day after the 998 offer, Hartline offers to dismiss the remaining cause of action so that they can appeal the first. That's exactly what the 998 offer purports to do as well.
Justice Cantil-Sakauye notes this fact (albeit in a footnote), but responds only that this wasn't an actual "counteroffer" since Hartline probably hadn't received the 998 offer yet. But so what? There's nothing in 998 that requires a counteroffer anyway. Moreover, what's important about this offer is that Hartline made it, which pretty much conclusively shows that they would have accepted a 998 offer that dismissed the second cause of action in return for a cost waiver that allowed Hartline to appeal summary adjudication of the first cause of action. And what's dispositive is that it shows that Kaiser was not willing to accept such an offer, since -- after all -- they didn't, and instead refused to sign the stipulation that Hartline proposed. Which is darn good evidence that their 998 offer did not intend to allow Hartline to appeal the summary adjudication order since, when Hartline expressly made such an offer, Kaiser refused to accept it. (Plus, this evidence is even stronger, since Hartline's offer -- unlike Kaiser's -- made no mention of costs. So the Court of Appeal's view that Kaiser was proposing to waive costs and allow Hartline to appeal the first cause of action seems flatly inconsistent with the undisputed fact that they were unwilling to allow Hartline to appeal the first cause of action even without a waiver of costs!)
This is the first opinion that I recall reading from Justice Cantil-Sakauye, who joined the Court of Appeal earlier this year. She's a former D.A. and was the youngest appointed judge in California (appointed as a Municipal Court Judge when she was 31). I'm sure her stronger suit is in the criminal area rather than in civil cases. But I'd have preferred to read a more impressive -- or at least persuasive -- start by her as her first published opinion on Court of Appeal.
