Settlement, 998 Offer, Simultaneous Offers Ineffective, Offers Tied To Arbitration Are Ineffective, 1, 10
To be effective to shift costs and fees, a 998 offer must be sufficiently certain so that the offeree can evaluate its worth and decide whether to accept it and so that the trial court, after resolution of the case, can determine whether the offer exceeded what the offeree obtained through litigation. This decision holds that simultaneous offers of differing amounts or computed in different ways does not satisfy the second of these two certainty requirements, so simultaneous offers are ineffective. The decision also holds that an offer to pay damages in amounts to be set by an undesignated arbitrator also does not satisfy the second certainty requirement because the trialc ourt cannot tell what amount an arbitrator might have awarded. Here, one of defendant’s two simultaneous offers was invalid because it called for an arbitrator to set amounts of recoverable damages. The other offer, however, was of a lump sum, and it remained effective despite being joined to an invalid simultaneous offer.