In a case in which he was both the plaintiff and a cross-defendant, Prince sent the defendant/cross-complainant a 998 offer that he would accept a $400,000 judgment. The offer was ambiguous as to whether it referred solely to the complaint or encompassed judgment on the cross-complaint as well. Defendant’s counsel emailed back, pointing out the ambiguity and saying that if the offer was on the complaint alone, the defendant would accept it, but not if it encompassed the cross-complaint as well. Prince’s counsel responded by email that the offer covered the entire case, both complaint, and cross-complaint. Defendant did not accept the offer and did less well at trial. Held, the trial court erred in denying Prince enhanced costs (including expert witness fees) based on the offer. Ambiguous offers cannot be enforced, but ambiguities can be clarified by writings such as the parties’ emails in this case. As so clarified the unaccepted 998 offer was enforceable.
California Court of Appeal, Fourth District, Division 3 (Moore, Acting P.J.); May 18, 2018 (partial publication); 2018 Cal. App. LEXIS 458